State v. Trevino

• Decision Date: 20 May 1999
• Docket Number: No. 24115,24115
• Citation: 980 P.2d 552,132 Idaho 888
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rudolfo TREVINO, III, Defendant-Appellant. Twin Falls, March 1999 Term
• Court: Idaho Supreme Court

Page 552

980 P.2d 552

STATE of Idaho, Plaintiff-Respondent, v. Rudolfo TREVINO, III, Defendant-Appellant.

No. 24115.

Supreme Court of Idaho,

Twin Falls, March 1999 Term.

May 20, 1999.

Rehearing Denied July 9, 1999.

Crabtree & Carlson, Twin Falls, for appellant. Michael R. Crabtree argued.

Hon. Alan G. Lance, Attorney General; Kenneth W. Robins, Deputy Attorney General, Boise, for respondent. Kenneth W. Robins argued.

WALTERS, Justice.

Rudolfo Trevino III appeals from the judgment of conviction and life sentence imposed for first degree murder. The sentence included an enhancement for the use of a firearm and a minimum term of confinement of thirty-five years. I.C. §§ 19-2520; 19-2513. For the reasons stated below, we affirm.

FACTS

In the early morning hours of May 14, 1995, the three male occupants of a Suzuki Sidekick shouted at the two men in a pickup truck that was backing into their path in the parking lot of the Circle K Store on Washington Street in Twin Falls, Idaho. The driver of the Suzuki got out of his vehicle and approached the pickup. The driver of the pickup, Larry Curtis, pulled forward out of the lot and into the road. The driver of the Suzuki got back into his vehicle and followed the pickup. He immediately pulled up onto the driver's side of the pickup, where fighting words were exchanged by the men in the two vehicles. Both drivers stopped their vehicles and the passenger in the pickup, Ryan Wiggins, got out, as did the passenger seated in the back seat of the Suzuki. The two started Wiggins was eighteen years old. He and Curtis were returning home from a bachelor party for Curtis when they stopped at the Circle K to buy some snacks and cigarettes.

throwing punches. The fight began behind the pickup and ended up across the road in a barrow pit. The others remained in or near their vehicles and watched until, at some point, the driver of the Suzuki got out and joined the melee. He struck Wiggins twice on the head with an object (later determined to be a sawed-off shotgun with the stock missing), causing Wiggins to slump down against a barbed wire fence. The man then fired a shot into Wiggins' chest. Curtis watched the men run back to the Suzuki, jump in and leave the scene. Wiggins lay dying from the shotgun blast.

Curtis called 911 for emergency help, but Wiggins died. Curtis reported the license plate number of the Suzuki to the police. The vehicle was registered to Rudy Trevino. The gun was found later on the day of the shooting, along the road, together with several shotgun shells. There were no fingerprints on the weapon or the shells. Shotgun shells of the same brand, gauge and shot size as those found with the weapon were subsequently seized from Trevino's house under a search warrant. At trial, Tito Cantu, the man who first fought with Wiggins, identified the gun as belonging to Trevino.

PROCEDURAL HISTORY

A magistrate's special inquiry into the death of Ryan Wiggins was conducted pursuant to I.C. §§ 19-1116--19-1123 to further the investigation in the case and compel material witnesses to give testimony. Two witnesses, Adan "Tito" Cantu and Clifford Velasquez, testified at the special inquiry in August of 1995 and said that they were not present when Wiggins was killed and that they were not involved in the incident. These witnesses later changed their stories and admitted being with the defendant, Rudy Trevino, the night of May 14, 1995, when the shooting occurred. They named Trevino as the owner and driver of the Suzuki. In March, 1996, Cantu led police to a canyon where the Suzuki, which Trevino had reported in the meantime as stolen, had been disposed of. Thereafter, Trevino was charged with first degree murder with the use of a firearm in the death of Ryan Wiggins.

The criminal complaint charging Trevino was filed on March 12, 1996, and counsel was appointed to represent him. At the preliminary hearing on March 22, 1996, defense counsel was provided with a partial list of witnesses and a partial transcript of the magistrate's special inquiry that was under a protective order. Trevino was bound over to the district court for trial, and an information dated April 2, 1996, was filed. Pretrial motions were submitted and resolved by the court.

In January of 1997, a status conference was held where a conflict of interest regarding defense counsel came to light. The district court granted the defense attorney's motion to be allowed to withdraw as counsel for Trevino. Substitute counsel was appointed on Trevino's behalf, and the trial was continued to May of 1997.

Defense counsel filed a motion for admission of the results of a polygraph exam taken by Trevino on April 23, 1997, based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The motion was denied. The district court also denied a defense motion to suppress the identification of Trevino by the eyewitness, Larry Curtis, asserted on the ground that the identification was tainted by suggestiveness arising from a photographic lineup and "showup" conducted by the investigating officers during the day following the shooting. Cantu and Velasquez also testified at the trial, and Trevino took the stand in his own defense. He was found guilty by the jury of murder in the first degree and of the use of a firearm in the commission of the murder. The district court entered a judgment of conviction and sentenced Trevino to the custody of the Board of Correction for the balance of his life, with a fixed term of twenty-seven years plus a consecutive, fixed term of eight years for the use of a firearm, during which time Trevino would not be allowed to be released on parole. Trevino appeals.

ISSUES

Trevino raises the following issues on appeal.

1. Were the lineup and showup so impermissibly suggestive and tainted as to invalidate the subsequent identifications?

2. Should Idaho courts hold Daubert hearings regarding polygraph examinations?

3. Was the admission of testimony from Cantu's lawyer regarding Cantu's motives for turning state's evidence, and the limiting instruction regarding this testimony, in error?

4. Should the court have given an involuntary manslaughter instruction?

5. Did the court err in admitting the expert's testimony about injuries that would be consistent with firing of the murder weapon when no firing of the gun had been conducted?

6. Is the life sentence with thirty-five years determinate excessive in this case?

ANALYSIS

I.

In determining whether to suppress an in-court identification that has allegedly been unduly tainted by an out-of-court identification, a trial court must decide whether the out-of-court identification was so suggestive that there is a very substantial likelihood of misidentification. Trevino argues that the pretrial identification was the result of improper police procedures and should have been suppressed.

Due process requires the exclusion of identification evidence if police suggestiveness created a substantial risk of mistaken identification, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Alger, 115 Idaho 42, 44, 764 P.2d 119, 121 (Ct.App.1988), except where the reliability of the identification is sufficient to outweigh the corrupting effect of the suggestive identification. Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140, 148-49 (1977); State v. Hoisington, 104 Idaho 153, 162, 657 P.2d 17, 25 (1983). The question of whether improper suggestiveness exists is determined from a totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380, 34 L.Ed.2d 401, 409 (1972). See also Hoisington, supra.

At the police station during the day following the early morning shooting of Ryan Wiggins, Curtis was shown a photographic lineup containing the pictures of several men. Curtis was given a written advisory statement indicating that he should not conclude or guess that the photographs contained the picture of the person who committed the crime. However, when Curtis asked whether photos of all three men at the crime scene were in the lineup, Detective Heidemann informed Curtis that only the shooter was in the photo lineup. Curtis selected the photo of a man other than Trevino. After Curtis learned from Detective Heidemann that he had not picked Trevino's photo, Curtis was allowed to study the photos a while longer. Curtis did not change his selection from the photo array. The process involving the photographic lineup was videotaped, preserving it for review by the courts.

At the conclusion of the photographic lineup, but before Curtis left the station, Trevino showed up to report that his Suzuki had been stolen. Curtis recognized Trevino as the shooter after Trevino removed the hat he was wearing. Trevino claims that Curtis' identification of him later at the trial was tainted by suggestiveness arising from the lineup and Trevino's "showup" appearance at the police station.

In support of his argument, Trevino cites Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). In Foster, the identification was made after a second in-person lineup where the person selected was the only one who had appeared in both lineups. In Trevino's case, the photo of Trevino that was not selected by the witness had been taken two years earlier and looked significantly different from Trevino as he appeared the day of the showup. The district judge, who viewed the videotape in the proceeding to decide Trevino's motion to suppress the identification, rejected Trevino's contention that Detective Heidemann had tapped on the photo of Trevino after Curtis made his choice but before the one-man Trevino contests the reliability of the identification, which is governed by the factors set out in Manson v. Brathwaite, supra. These factors include:

showup. In addition, the district court found that any suggestions by Detective Heidemann had no effect on...