State v. Pallanes
| Decision Date | 02 June 2011 |
| Docket Number | 2 CA-CR 2010-0305 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JOSE JESUS PALLANES, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani and Diane Leigh Hunt
Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Robb P. Holmes
Tucson
Attorneys for Appellant
¶1 Following a jury trial, appellant Jesus Pallanes was convicted of attempted robbery and sentenced to a three-year term of imprisonment. On appeal, he contends the trial court erred by denying his motion to preclude the victim's in-court identification of him and by refusing to give an instruction on simple assault. Finding no error, we affirm.
¶2 "We view the evidence in the light most favorable to upholding the jury's verdict." State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). On October 20, 2009, the victim and her friend, W., went to an apartment complex in Tucson where the victim was considering renting a unit. As the two women entered the complex, W. saw a man there whom she recognized as Pallanes. W. knew Pallanes as a customer of her husband, who was a car salesman.
¶3 The women briefly separated in the complex shortly after arriving, and the victim ascended a stairway by herself. There, a man pushed her against a wall and demanded her purse. When the victim resisted, the man punched her, causing her to fall down the stairs, and he kicked her as she tried to get up. When W. responded to the victim's screams, she saw Pallanes at the base of the stairwell on top of the victim and beating her. Pallanes fled without the purse, and police officers were unable to apprehend him that evening.
¶4 The victim did not know of Pallanes before the attack, but when law enforcement officers responded to the women's call for assistance, W. reported that Pallanes was the man who had committed the crime. The next day, the victim received a copy of Pallanes's driver's license from W.'s husband. About two weeks later, a policedetective created a photographic lineup that included a different picture of Pallanes, and the victim identified him in the lineup as her attacker.
¶5 Before trial, Pallanes filed a Dessureault motion1 to preclude any identification by the victim, which the trial court denied after a hearing. The victim then testified at trial about the photographic lineup and identified Pallanes in court as her attacker. The detective likewise testified about the victim's lineup identification of Pallanes. The court denied Pallanes's request for a jury instruction on assault, finding it was not a lesser-included offense of attempted robbery. The jury found Pallanes guilty, as noted above, and this appeal followed his conviction and sentence.
¶6 Pallanes first argues the trial court should have suppressed the victim's in-court identification of him "because it was tainted by an unduly suggestive lineup procedure" and violated his right to due process guaranteed by the United States and Arizona constitutions.2 Our review of this issue is limited to the evidence presented at the Dessureault hearing. State v. Garcia, 224 Ariz. 1, ¶ 6, 226 P.3d 370, 376-77 (2010). We defer to any factual findings made by the trial court, provided they are not clearly erroneous, but "[t]he 'ultimate question of the constitutionality of a pretrial identificationis . . . a mixed question of law and fact,' which we review de novo." Id., quoting State v. Moore, 222 Ariz. 1, ¶ 17, 213 P.3d 150, 156 (2009).
¶7 "The Due Process Clause of the Fourteenth Amendment requires us to ensure that any pretrial identification procedures are conducted in a manner that is fundamentally fair and secures the suspect's right to a fair trial." State v. Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d 1172, 1183 (2002). A due process violation is established if "(1) . . . the circumstances surrounding the pretrial identification 'created a substantial likelihood of irreparable misidentification,' and (2) . . . the state bore sufficient responsibility for the suggestive pretrial identification to trigger due process protection." State v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240, 1245 (1987), quoting Simmons v. United States, 390 U.S. 377, 384 (1968). "The 'due process clause does not preclude every identification that is arguably unreliable; it precludes identification testimony procured by the state through unduly suggestive pretrial procedures.'" Garcia, 224 Ariz. 1, ¶ 9, 226 P.3d at 377, quoting Williams, 166 Ariz. at 137, 800 P.2d at 1245; accord State v. Prion, 203 Ariz. 157, ¶ 15, 52 P.3d 189, 192 (2002); State v. Nordstrom, 200 Ariz. 229, ¶ 24, 35 P.3d 717, 729 (2001).
¶8 Here, the state was not responsible for W.'s pretrial suggestions to the victim that Pallanes was her attacker, and the state's mere knowledge that the victim had received a copy of Pallanes's driver's license from W.'s husband did not make the state responsible for this fact or otherwise render the photographic lineup unduly suggestive. See Williams, 166 Ariz. at 137-38, 800 P.2d at 1245-46. In the absence of improper state action, a court need not fully assess the reliability of a witness's identification. Garcia,224 Ariz. 1, ¶ 12, 226 P.3d at 377. "Only identification evidence allegedly tainted by state action must meet the reliability standard articulated in [Neil v.] Biggers[, 409 U.S. 188 (1972)]." Nordstrom, 200 Ariz. 229, ¶ 25, 25 P.3d at 729. Thus, the fact that the victim's ability to provide "an objective evaluation" of the photo lineup may have been compromised by her previous exposure to a photograph of Pallanes by a civilian, did not render her identification inadmissible.
¶9 The victim's identification here was based on adequate foundation and was presented to the jury in a way that allowed the defendant to point out its weaknesses. See Nordstrom, 200 Ariz. 229, ¶ 26, 25 P.3d at 729-30. The identification therefore cleared the minimum threshold of reliability required to ensure due process. See Prion, 203 Ariz. 157, 16-17, 52 P.3d at 192-93. "Any complaints concerning the identification go to its weight and credibility, not its admissibility." Id. ¶ 18.
¶11 Here, the victim testified that she had observed her attacker's face closely for a significant length of time, especially when he was on top of her punching her, and that her memory of him was distinct. The record thus supports the trial court's finding that the victim's opportunity to observe her assailant, the degree of her attention, and the time within which she made her identification established the identification was reliable. The court did not err in denying Pallanes's motion or in admitting the challenged evidence.
¶12 Pallanes next argues he "was entitled to a lesser-included instruction for simple assault as a lesser [offense] to attempted robbery." Rule 23.3, Ariz. R. Crim. P., requires a trial court to submit to the jury all offenses and attempted offenses "necessarily included" in the crime charged. This means a jury must be instructed on a lesser offense "if the crime is a lesser[-]included offense to the one charged and if the evidence supports the giving of the instruction." State v. Refit, 145 Ariz. 452, 463, 702 P.2d 681, 692 (1985); accord State v. Wall, 212 Ariz. 1, ¶¶ 13-14, 126 P.3d 148, 150 (2006). "To constitute a lesser-included offense, the offense must be composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one." State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). When analyzing lesser-included offenses, courts examinethe statutory elements of the crimes, not the facts underlying the particular case. State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980). Accordingly, "[w]hether an offense is a lesser-included offense of another crime involves a matter of statutory interpretation, which we review de novo." In re James P., 214 Ariz. 420, ¶ 12, 153 P.3d 1049, 1052 (App. 2007).
¶13 Pallanes was charged with attempted robbery pursuant to A.R.S. §§ 131001 and 13-1902.
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