State v. Riley

• Decision Date: 29 June 1999
• Docket Number: No. 2CA-CR98-0247.,2CA-CR98-0247.
• Citation: 992 P.2d 1135,196 Ariz. 40
• Parties: The STATE of Arizona, Appellee, v. Thomas Michael RILEY, Appellant.
• Court: Arizona Court of Appeals

992 P.2d 1135

196 Ariz. 40

The STATE of Arizona, Appellee, v. Thomas Michael RILEY, Appellant.

No. 2CA-CR98-0247.

Court of Appeals of Arizona, Division 2, Department B.

June 29, 1999.

Redesignated as Opinion and Publication Ordered September 21, 1999.

Review Denied January 4, 2000.

Janet Napolitano, Arizona, Attorney General By Paul J. McMurdie and Toni Marie Valadez Phoenix, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Joy Athena, Tucson, Attorneys for Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 A jury found appellant Thomas Michael Riley guilty of six counts of armed robbery, six counts of aggravated assault, and six counts of kidnapping arising out of a bank robbery involving six employees. The trial court sentenced him to aggravated prison terms totaling sixty-three years. Riley argues that the court erred in permitting telephonic testimony during his suppression hearing, denying his motion to suppress, and imposing consecutive sentences. He further argues that five of his armed robbery convictions must be vacated. For the reasons set forth below, we affirm.

Facts and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining the convictions, with all reasonable inferences resolved against the defendant. State v. Valencia, 186 Ariz. 493, 924 P.2d 497 (App.1996). As employees were entering a bank branch and preparing to open it on December 12, 1996, an armed gunman pushed F., a teller, into the building, pointing his gun at her and ordering her and M., the assistant manager, to lie on the floor. They complied and another armed man came into the bank and tied their hands behind their backs. The first gunman, later identified as Riley, pointed his gun at another employee, C., and ordered her on the floor. The second gunman, codefendant Donald Malone, grabbed S. and told her to get on the floor. Malone then pointed his gun at L., a teller, escorted him to where the other employees were lying face down on the floor, and bound his hands behind his back. When another manager, U., arrived for work, Malone pulled her inside, put her face down on the floor with the others, and tied her hands behind her back. ¶ 3 Riley held his gun to S.'s head and asked if she had the keys to the automatic cash machine. After she indicated she did not, he asked who had the combination. M. stated that she did, and Riley pointed the gun at her and ordered her to open the machine. After M. was unable to, Riley took her to the vault, and she asked S., who had the second combination, to help her. The vault was opened, and Riley made the two lie down on the floor again while he packed cash into a duffel bag. Riley and Malone then left the bank. After a few minutes, the employees locked the door and called the police. Taken was about $245,000 in bundles of cash of varying denominations, each bound with a purple wrapper bearing the bank's markings, a date stamp of December 11, 1996, and S.'s initials.

¶ 4 Almost a month later, Riley and Malone were arrested for illegal possession of firearms after being stopped for speeding by Officer Frank Lombardo of the South Brunswick, New Jersey, Police Department. Malone had over $4,000 cash in his pocket, including a stack of fifty-dollar bills wrapped in a purple bank wrapper, date stamped December 11, 1996, and Riley had two guns tucked in his waistband. Police subsequently obtained a search warrant and discovered $160,000 cash bundled in bank wrappers in the men's hotel room.

¶ 5 After Riley and Malone were indicted on eighteen counts of armed robbery, kidnapping, and aggravated assault, Riley moved to suppress all evidence obtained as a result of the traffic stop, claiming he had been illegally detained. Over the objections of both defendants, the court permitted Officer Lombardo to testify telephonically at the suppression hearing. The court denied the motion to suppress, and the jury ultimately found Riley guilty on all counts. This appeal followed.

Confrontation Rights

¶ 6 Riley argues the trial court violated his constitutionally guaranteed confrontation rights by permitting Officer Lombardo to testify telephonically at the suppression hearing, contending he was deprived of a "face-to-face" confrontation. Both the Sixth Amendment to the United States Constitution and article II, § 24, of the Arizona Constitution "guarantee a defendant the right to confront his accusers and witnesses at trial." State v. Pereda, 111 Ariz. 344, 345, 529 P.2d 695, 696 (1974). The primary focus of the Confrontation Clause is to assure that a jury has an adequate basis upon which to evaluate the truth of a witness's statement. State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983); State v. Anaya, 165 Ariz. 535, 799 P.2d 876 (App.1990). Cross-examination is the preferred method "by which the confrontation clause may be satisfied." Anaya, 165 Ariz. at 541, 799 P.2d at 882; see State v. Vess, 157 Ariz. 236, 756 P.2d 333 (App.1988).

¶ 7 Riley relies on People v. Levine, 231 Mich.App. 213, 585 N.W.2d 770 (1998), for the proposition that Confrontation Clause protections apply to a pretrial suppression hearing. It is well established, however, that confrontation rights do not apply to the same extent at a pretrial suppression hearing as they do at trial. United States v. Boyce, 797 F.2d 691 (8th Cir.1986); see also United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424, 435 (1980) ("[T]he interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself."). Unlike a trial, which determines a defendant's guilt or innocence, the purpose of a pretrial suppression hearing is to determine whether the accused's constitutional rights were violated. State v. Hein, 138 Ariz. 360, 674 P.2d 1358 (1983). Furthermore, the demands of the Confrontation Clause are not absolute. Vess. Exceptions may be made upon a showing of necessity and minimal abridgment of the right to accommodate that necessity. Id.

¶ 8 The state requested that Lombardo be allowed to appear telephonically to avoid the hardship, inconvenience, and expense of having him travel from New Jersey for "an hour or two of hearings" and then return for trial a month later. Riley was present for Lombardo's testimony at the hearing and, unlike the defendant in Levine, was able to thoroughly cross-examine the officer. Although he was unable to see Lombardo during the pretrial hearing and assess his demeanor, Lombardo testified in person during Riley's trial at which time both the court and the jury could assess his credibility and demeanor. Riley did not reurge his motion to suppress. We therefore conclude that any infringement on Riley's confrontation rights was minimal and, consequently, cannot say the trial court erred in permitting the telephonic testimony. Cf. State v. Downes, 19 Or.App. 401, 528 P.2d 110 (1974) (trial court not required to hold hearing to allow defendant opportunity to confront state's witnesses when defendant did not dispute facts underlying suppression motion).

¶ 9 Furthermore, even assuming a violation of Riley's Sixth Amendment confrontation rights occurred, reversal is not necessarily required because such violations are subject to a harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); State v. Wilhite, 160 Ariz. 228, 772 P.2d 582 (App.1989). As we noted above, Lombardo testified before the jury at Riley's trial. Moreover, the evidence against Riley was overwhelming. All six victims positively identified him as the first armed gunman, and bank security cameras photographed him during the robbery. Thus, even if the trial court erred in allowing telephonic testimony at the suppression hearing, Riley was not prejudiced by the lack of face-to-face confrontation with Officer Lombardo. Consequently, any error was harmless.

Motion to Suppress

¶ 10 Riley argues that the trial court erred in denying his motion to suppress, claiming that his detention was unlawful, that the officer's ordering him out of the vehicle was unauthorized, and that "neither of these actions can be legally supported by officer safety concerns." On appeal from the denial of a motion to suppress evidence, we review the trial court's ruling for clear and manifest error. State v. Rodriguez, 186 Ariz. 240, 921 P.2d 643 (1996); State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991). We view the evidence presented at the suppression hearing in the light most favorable to upholding the trial court's ruling. State v. Moore, 183 Ariz. 183, 901 P.2d 1213 (App.1995).¹

¶ 11 At about two o'clock in the morning on January 9, 1997, Lombardo was on patrol in a marked police car when he spotted three vehicles exceeding the speed limit. Two of the vehicles immediately slowed down. The third, a Toyota 4Runner, accelerated away from him. Lombardo followed the 4Runner, which reached speeds in excess of 110 miles per hour, and he attempted to stop it in a well-lighted area. The 4Runner slowed down as if to stop, then sped up, and pulled away from Lombardo. It eventually stopped in an area that was "pitch black." Lombardo approached the vehicle, which had an obscured temporary license tag, from the passenger side. He rapped on the window but the passenger, later identified as Riley, stared straight ahead while the driver, Malone, operated the electric window. Malone's left hand was not visible, and Riley had his hand "tucked up underneath his leather jacket pockets" and continued to stare straight ahead. Malone reached over Riley to comply with Lombardo's request for the keys and his driver's license, and Lombardo noticed his hands were shaking. Malone was unable to produce a vehicle registration or proof of insurance.

¶ 12 Lombardo asked Malone to step out of the vehicle and observed that he was sweating profusely despite the cold and that h...