State v. Prion

• Citation: 52 P.3d 189,203 Ariz. 157
• Decision Date: 20 August 2002
• Docket Number: No. CR-99-0378-AP.,CR-99-0378-AP.
• Parties: STATE of Arizona, Appellee, v. Lemuel PRION, Appellant.
• Court: Supreme Court of Arizona

52 P.3d 189

203 Ariz. 157

STATE of Arizona, Appellee, v. Lemuel PRION, Appellant.

No. CR-99-0378-AP.

Supreme Court of Arizona, En Banc.

August 20, 2002.

Janet Napolitano, Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Bruce M. Ferg, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Law Offices of the Pima County Public Defender, by Frank P. Leto, Assistant Public Defender, and Brian X. Metcalf, Assistant Public Defender, Tucson, Attorneys for Appellant.

OPINION

JONES, Chief Justice.

¶ 1 Lemuel Prion was convicted by a jury January 28, 1999, of first degree murder, kidnaping (dangerous), and aggravated assault (dangerous). The murder of Diana Vicari occurred between October 22 and October 24, 1992. The kidnaping and aggravated assault of Tabitha Armenta occurred at the end of 1992. Prion was acquitted of a sexual assault charge as to Tabitha Armenta. He was sentenced to death for the Vicari murder and to 21 years for the Armenta kidnaping, with a consecutive 15 year sentence for the aggravated assault. Appeal directly to this court is mandatory when the trial court imposes a sentence of death. Arizona Revised Statutes (A.R.S.) § 13-703.01 (2001). We have jurisdiction pursuant to article VI, § 5(3) of the Arizona Constitution, A.R.S. § 13-4031, and Arizona Rules of Criminal Procedure 26.15 and 31.2(b).

Facts

The Murder

¶ 2 Diana Vicari was at the Tucson Community Center at about midnight Thursday, October 22, 1992. Her car was found near La Osa Street the following Monday. There had been a party in that area the previous Thursday night. Vicari's car had been parked there since early Friday morning. On Saturday, October 24, 1992, her severed arms were found wrapped in plastic bags in a dumpster. Evidence indicated the arms had been severed from the body after death. The medical examiner testified that in her opinion two different instruments were used to sever the arms. She referenced the probability of a heavy knife for the bones and a sharp serrated knife for the flesh. There was no physical evidence identifying Prion as her killer.

¶ 3 In August 1993, the police showed photographs of Vicari and Prion to Troy Olson, an employee of the New Orleans nightclub/bar in Tucson. According to the police, at that time Olson recognized Vicari but not Prion. About seventeen months later, in January 1995, Olson saw photographs of Vicari and Prion on the front cover of the Tucson Weekly. Olson contacted the police and then made a positive identification of Prion as the man who was with Vicari in the New Orleans the night of October 22, 1992.

¶ 4 Olson testified at trial that Vicari introduced Prion to him. Vicari's intent, according to Olson, was to attend a party later that evening. She asked Olson to meet her at the party. Vicari was to obtain the address of the party from Prion, return to the New Orleans, and leave the address for Olson. She did not return to the bar.

¶ 5 In addition to Olson's identification, the state provided evidence of the following facts: Prion was working two jobs at the time of the murder. He worked as a carpenter on weekdays and as a nursing home assistant on the weekend shift for The Golden Years Nursing Home. In December 1992, Prion told his nursing home employer that he was afraid he was going to kill someone. In addition, he also owned several knives, including a machete, and had been to a recording studio located near the dumpster where the arms were discovered.

¶ 6 Prion also had a habit of talking about Committing violent acts on women. He often spoke of being ripped off by women. He told his brother and sister-in-law about having threatened or having thought about threatening a woman with a machete, but ultimately coming to his senses and releasing her. Prion made similar statements to former cellmates Jeffrey Brown and Jerry Wilson.

¶ 7 Prion spoke to the Tucson police in September 1993 but never admitted the Vicari murder. Prion's comment upon seeing a photograph of Vicari was, "I want to say the face looks familiar, but the tits don't. And I remember tits like that." Detective Salgado thought this comment was odd as that particular photograph in his opinion shed little or no light on the accuracy of Prion's observation. Vicari's mother testified that her daughter was full chested.

The Kidnaping and Aggravated Assault

¶ 8 In 1992, Tabitha Armenta had been a street prostitute in Tucson with a drug problem. Armenta would normally let men pick her up, would not go through with the transaction, would take their money and run, or would sell them drugs.

¶ 9 Prion told Detective Salgado about being ripped off by a prostitute named Tabitha when he was interviewed regarding the Vicari murder. Prion stated that he made a false 911 overdose call, citing Tabitha's residence after she ripped him off several times. Based on this information, the Tucson police contacted Tabitha Armenta in prison in 1994. When police officers first showed her a photograph of Prion, Armenta did not recognize him.

¶ 10 After speaking with the police, Armenta wrote a letter to them, providing more details of the attack. She described an incident in which her attacker spoke of being ripped off. He told her he would cut her up and leave her or scatter her body. The attacker forced her to perform oral sex on him. He threatened her with a large knife and rubbed it on her body, saying that he enjoyed threatening women and that it excited him. Armenta eventually became angry and told her attacker that he should either just do it or let her go. He let her go.

Trial Issues

Olson's Identification

¶ 11 Prion moved to suppress Olson's pretrial identification as unduly suggestive, unreliable, and in violation of his constitutional rights. Prion claimed that photographs viewed by Olson were suggestive because each was a single photograph, and they listed the defendant's name and the fact that he was incarcerated. The trial court noted the weakness of the identification but nevertheless allowed it into evidence.¹

¶ 12 At trial, Olson identified Prion as the man he saw with Vicari on the night she disappeared. Olson had seen photographs of Prion on two earlier occasions. The first was August 1993 when the police showed Olson a mug shot of Prion. At that time, Olson could not identify Prion. He stated that the person in the photograph did not look familiar.

¶ 13 The second occasion occurred when Olson saw separate photographs of both the defendant and Vicari on the cover of the January 1995 Tucson Weekly. Prion's photograph supplied his name and date of birth and indicated that he was incarcerated. Moreover, the Weekly labeled Prion as the prime suspect in the Vicari murder. After viewing this photograph, Olson identified Prion as the man who was with Vicari on the night she disappeared.

¶ 14 We review orders regarding motions to suppress on an abuse of discretion standard. State v. Atwood, 171 Ariz. 576, 603, 832 P.2d 593, 620 (1992). Pretrial identifications which are fundamentally unfair implicate the due process clause of the Fourteenth Amendment. State v. Nordstrom, 200 Ariz. 229, 241, 25 P.3d 717, 729 ¶ 23 (2001) (citing Stovall v. Denno, 388 U.S. 293, 297-98, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)); see also Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)

. To show a due process violation, the defendant must prove that the circumstances surrounding the pretrial identification created a substantial likelihood of irreparable misidentification and that the state was responsible for that suggestive pretrial identification. State v. Williams, 166 Ariz. 132, 135-39, 800 P.2d 1240, 1243-47 (1987).

¶ 15 There is no need to perform a Biggers analysis when the identification is not the result of state action. Nordstrom, 200 Ariz. at 241, 25 P.3d at 729 ¶ 24 ("Because the state action requirement of the Fourteenth Amendment ... cannot be established, due process is inapposite.") (citation omitted). We find no state action here which resulted in the identification. The article and photograph were published by the Tucson Weekly. The article was written by a freelance writer not employed by the Tucson Police Department. While the writer had some contact with the police and misrepresented herself to others as having the approval of the police, we agree with the trial court that she "was not an agent of the Tucson Police Department nor the Pima County Attorney ... and had no direct contact or cooperation from Det. Salgado."

¶ 16 As this court noted in Nordstrom, due process concerns may be implicated where a minimal threshold of reliability is not met. Nordstrom, 200 Ariz. at 241, 25 P.3d at 729 ¶ 26. While Olson's identification of Prion was weak, we believe the state demonstrated at least the threshold standard of reliability set forth in Williams, 166 Ariz. at 137, 800 P.2d at 1245. ¶ 17 Defense counsel thoroughly cross examined Olson regarding his identification. Prion presented the testimony of another bar employee to discredit Olson. He also presented testimony from a psychologist regarding problems inherent in eyewitness identification. The jury heard that Olson could not identify Prion from the photograph shown him by the police in August 1993.

¶ 18 Any complaints concerning the identification go to its weight and credibility, not its admissibility. Such matters are of course for the jury to consider. Nordstrom, 200 Ariz. at 242, 25 P.3d at 730 ¶ 27. In our view, the trial court did not abuse its discretion in admitting Olson's identification of Prion.

Third party culpability evidence

¶ 19 The state repeatedly argued at trial that the inherent tendency test from State v. Fulminante required a connection between the third party and the crime and that vague suspicions were insufficient. State v. Fulminante, 161 Ariz. 237, 252, 778 P.2d 602, 617 (1988) ("Before a defendant may introduce ... [third party culpability evidence] the...