State v. Romero

• Decision Date: 31 August 1993
• Docket Number: CA-CR,No. 1,1
• Citation: 178 Ariz. 45,870 P.2d 1141
• Parties: STATE of Arizona, Appellee, v. Epitacio ROMERO, Appellant. 91-1595.
• Court: Arizona Court of Appeals

Page 1141

870 P.2d 1141

178 Ariz. 45

STATE of Arizona, Appellee, v. Epitacio ROMERO, Appellant.

No. 1 CA-CR 91-1595.

Court of Appeals of Arizona Division 1, Department A.

Aug. 31, 1993.

Review Denied April 19, 1994.

[178 Ariz. 46] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Garrett W. Simpson, Deputy Public Defender, Phoenix, for appellant.

OPINION

EHRLICH, Presiding Judge.

Epitacio Romero ("defendant") appeals from six convictions and sentences for aggravated assault. For the following reasons, we affirm the judgments.

FACTS ¹ AND PROCEDURAL HISTORY

At approximately 1:00 a.m. on February 8, 1991, the victims in this case ² were standing in the front yard of a home near the corner of 49th Avenue and Almeria in Phoenix. While talking, they noticed a pickup truck being driven by very slowly while its two occupants stared at the group in the yard. As the truck was driven around the corner at the end of the block, its headlights were turned off. Almost immediately thereafter, the victims heard and saw gunfire coming from that place. All of the people in the yard dropped to the ground and began crawling towards the house for cover. None of the victims was able to identify the person(s) who had fired at them; however, several of them were able to describe the truck that had just passed by and its two occupants.

The police were called and a description of the vehicle and two men was broadcast over the police radio. The truck was depicted as a flatbed pickup, either light gold or yellow, with large black tool boxes on the back, being driven in an easterly direction. Its occupants were depicted as two "Mexican males with long hair."

Phoenix Police Officer Joe Smelter was familiar with the location of the shooting and knew the neighborhood to be part of the Wedgewood gang's "turf." He drove east of the shooting site, into the area of the rival Hollywood gang. Within approximately five minutes of the radio call and within a mile to a mile and a half of the Almeria neighborhood, Officer Smelter came upon a truck matching the broadcast description parked along the east shoulder of 38th Avenue with the driver's-side door open. He also saw a car stopped next to the pickup and two Hispanic males with long hair standing outside the car, seemingly engaged in conversation with those in it. When the officer activated his emergency lights, the car sped off and the two Hispanic males walked quickly toward the truck. As the driver was about to get into the truck, Officer Smelter got half-way out of his car and drew his weapon but kept it hidden behind his open car door. The officer called to the two individuals and asked if he could speak to them. Both men began walking towards the officer. As the men approached, Officer Smelter raised his weapon and told them to lie down on the ground while he called for assistance, saying that there was a matter to be "cleared up."

Within a minute or two, Lt. Pina arrived on the scene and told both of the men on the ground that he was going to frisk them for weapons. The man later identified as the defendant told Lt. Pina that he didn't have any weapons on him but that he had a gun in the truck. The other man said that a .38 caliber handgun in the truck was his. As additional officers arrived, they recovered a loaded nine millimeter semi-automatic handgun from the driver's-side dashboard of the vehicle, along with two ammunition clips from the pocket on the driver's door. A loaded .38 caliber revolver was recovered from the passenger side of the dashboard. The defendant was handcuffed, placed in a patrol car and advised of his constitutional rights.

The defendant told Officer Kevin Sanchez that he knew nothing about the shooting, although he admitted to having fired his weapon in the air earlier in the evening at the corner of 40th Avenue and Palm. He also said that he had fired two boxes of ammunition at a shooting range and that he then had fired the last four rounds in the clip into the air at the intersection.

Approximately ten to fifteen minutes after the initial stop, two of the victims were taken from the shooting scene to the location of the stop. Both victims immediately identified the truck as the one driven past the house just prior to the shooting. Each also recognized the defendant as the driver of the truck.

Eleven spent nine millimeter bullet casings were recovered from the corner of 49th Avenue and Almeria. Ten of the casings later were determined to have been fired from the weapon recovered on the driver's side of the truck.

The defendant was charged with seven counts of aggravated assault and one count of endangerment.

In addition to several pre-trial motions to suppress evidence, statements and identifications, the defendant filed a motion in limine to preclude the state from introducing evidence of his gang affiliation. The defendant argued that the state was without reliable evidence of his membership and that, in any event, such evidence was overly prejudicial. At a hearing on this issue, two Phoenix Police Gang Squad officers testified regarding two contacts with the defendant, one in approximately May 1985 and a second in February or March 1991, during each of which he indicated that he was a Hollywood gang member. There also was evidence that the shooting had taken place in Wedgewood gang territory, that some of the victims in this case were former or current Wedgewood gang members and that there was an on-going rivalry between the two gangs.

The trial court denied the motion in limine, finding the evidence relevant and that its probative value outweighed any unfair prejudice to the defendant. The court suggested that a limiting instruction be read to the jury. Defense counsel thereafter requested a modified limiting instruction, which was read to the jury at the close of the case.

In addition to the testimony of the gang squad officers concerning the defendant's Hollywood connections, Officer Steve Orona testified at trial regarding the on-going rivalry between the Hollywood and Wedgewood gangs. A gang squad sergeant also testified regarding the meaning of graffiti in the area which indicated continuing antagonism. Moreover, although at trial all of the victims denied both current and former membership in any gang, defense counsel brought out that, on the night of the shooting, almost all of the victims had been identified as being either current or former Wedgewood members.

The jury found the defendant guilty of six counts of aggravated assault, class three dangerous felonies. The trial court found aggravating factors in support of a twelve-year prison term on one count and imposed presumptive 7.5-year terms on the remaining counts, each sentence to be served concurrently with the others. The defendant timely appealed.

DISCUSSION

Two issues are presented on appeal: (1) whether the police had probable cause to arrest the defendant, the arrest alleged to have occurred when he was first forced at gunpoint to lie on the ground and then be handcuffed and put in a patrol car, and (2) whether the evidence of gang activities in general and the defendant's membership in the Hollywood gang specifically was admissible. We hold that the defendant's Fourth Amendment rights were not violated and that the evidence of his gang membership was both relevant with regard to his motive and intent in the shooting and not more unfairly prejudicial than probative.

A. Alleged Violation of Fourth Amendment Rights

The defendant argues that Officer Smelter's actions did not constitute an investigative stop in accordance with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but was, from the outset, an arrest without probable cause. In this context, he claims that Officer Smelter acted with a degree of force in excess of that appropriate to an investigative detention and that the evidence collected as a result should have been suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The Fourth Amendment does not require that a police officer "simply shrug his shoulders and allow a crime to occur or a criminal to escape" even in the absence of sufficient information to establish probable cause. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), quoted in State v. Jarzab, 123 Ariz. 308, 311, 599 P.2d 761, 764 (1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1069, 62 L.Ed.2d 789 (1980); see Terry, 392 U.S. at 22-24, 88 S.Ct. at 1880-81. If an officer has a reasonable suspicion, based upon specific and articulable facts, that a suspect is involved or wanted in connection with a crime, then a brief stop to investigate that suspicion in fact may be the best and most sensible response. Terry, 392 U.S. at 21-24, 88 S.Ct. at 1879-81; see United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), discussed in State v. Winegar, 147 Ariz. 440, 446, 711 P.2d 579, 585 (1985); Adams, 407 U.S. at 146, 92 S.Ct. at 1118, discussed in Jarzab, 123 Ariz. at 311, 599 P.2d at 764. When, however, police action exceeds the bounds permitted by reasonable suspicion, a seizure becomes an arrest and must then be supported by probable cause, Florida v. Royer, 460 U.S. 491, 501-03, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983) (plurality opinion), but there is no "bright line rule" to apply when making this determination, only the approach of reason and common sense applied to the totality of the particular circumstances. United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985); Royer, 460 U.S. at 506-07, 103 S.Ct. at 1329; Winegar, 147 Ariz. at 447 n. 5, 711 P.2d at 586 n. 5; State v. Wiley, 144 Ariz. 525, 531, 698 P.2d 1244, 1250 (1985), overruled on other grounds, State v. Superior...