The State Of Ariz. v. Tamplin
| Decision Date | 29 November 2010 |
| Docket Number | 2 CA-CR 2009-0297 DEPARTMENT B |
| Parties | THE STATE OF ARIZONA, Appellee, v. GREGORY DAVID TAMPLIN, Appellant. |
| Court | Court of Appeals of Arizona |
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson Tucson Attorneys for Appellee.
Robert J. Hirsh, Pima County Public Defender By M. Edith Cunningham Tucson Attorneys for Appellant.
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Not for Publication Rule 111, Rules of the Supreme Court.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 Cause No. CR20074736 Honorable Kenneth Lee, Judge AFFIRMED IN PART; VACATED IN PART.
¶1 After a jury trial, appellant Gregory Tamplin was convicted of first-degree murder, aggravated assault, kidnapping, first-degree burglary, two counts of armed robbery, and two counts of sexual assault. The trial court sentenced him to life in prison with the possibility of parole after twenty-five years for the murder conviction, consecutive seven-year prison terms for the sexual assault convictions, concurrent terms on the other convictions, and consecutive community supervision.
¶2 On appeal, Tamplin argues that 1) the trial court erred in denying his motion to suppress the victim's pre-trial and in-court identifications; 2) the charges for armed robbery, sexual assault, aggravated assault, kidnapping, and first-degree burglary were barred by the statute of limitations; 3) the prosecutor's improper comments during closing argument, including comments about Tamplin's failure to testify and the strength of the deoxyribonucleic acid (DNA) evidence, deprived him of a fair trial; 4) the trial court erred in giving an instruction that unduly emphasized the weight of circumstantial evidence regarding the elements of intent and premeditation and in giving the Portillo reasonable doubt instruction;1 and 5) the sentence of community supervision was illegal. For the reasons stated below, we vacate the court's order imposing community supervision, but affirm the convictions and sentences in all other respects.
¶3 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). Sometime after midnight on November 13, 1990, A. woke to the sound of banging on herfront door. Thinking it was her fiance, R., returning from work without his key, she answered the door. A. was unaware that R. had already returned from work and was lying in the bed next to her. When she opened the door, Tamplin forced his way in, held a gun to her face, grabbed her arm, and walked her toward the bedroom, where R. was standing. Tamplin then ordered R. to lie down on the bed and said, "You owe me big." R. repeatedly begged Tamplin not to shoot, but Tamplin shot him multiple times, killing him. Tamplin then sexually assaulted A. twice in the living room before leaving the apartment, taking with him a bike, $5.00 in quarters, and a gold watch. A. called 9-1-1 from a neighbor's apartment, and during her police interview later that morning, she gave a description of the assailant. At a follow-up interview on November 15, she met with a police sketch artist who used A.'s description to create a composite sketch. No suspect was identified during the initial investigation and the case remained unresolved for a number of years.
¶4 In 2003, Tucson Police Department (TPD) detectives conducted a "cold case" review and requested the TPD crime laboratory analyze DNA samples from evidence collected during the initial investigation.2 The samples ultimately were tested in 2007, and a comparison against known DNA profiles revealed a match with a DNA profile for Tamplin. To verify the match, detectives obtained a buccal swab from Tamplin and a new profile prepared from that sample matched the DNA profile from the samples that had been collected during the initial investigation. In August 2007, detectives interviewed A. and told her that a DNA match had been made. A. was shown a photographic lineup consisting of six pictures and asked if she recognized anyone. Although A. was unable to state conclusively that she recognized any of the persons as her assailant, she told the detectives she had a "deep feeling" about Tamplin's photograph. Tamplin was indicted in December 2007 and ultimately convicted of the charges and sentenced as noted above. This timely appeal followed.
¶5 When reviewing a trial court's denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996), and "view it in the light most favorable to upholding the court's factual findings," State v. Gerlaugh, 134 Ariz. 164, 167, 654 P.2d 800, 803 (1982). "We review the... court's ruling... for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).
¶6 Tamplin first argues the trial court erred in denying his motion to suppress A.'s in-court identification of him, claiming it was tainted by an unduly suggestive pre-trial identification procedure. He contends his photograph was more prominent than the other photographs in the array because his head was larger, his skin tone differed from the others, and there was a "distracting glare" in the middle of his forehead. He alsoargues the photographic lineup procedure was unduly suggestive because the officers did not inform A. that the suspect might not be depicted in the photo array.
¶7 When the officers had shown A. the photographic lineup, they had asked her if she recognized anyone in it. A. stated that she had a "problem with number five," the photograph of Tamplin, "[j]ust a feeling." At the suppression hearing, the trial court viewed the array, concluded that it was not unduly suggestive, and admitted the pre-trial and in-court identifications.
¶8 Pre-trial identification procedures must comply with due process. State v. McCall, 139 Ariz. 147, 154, 677 P.2d 920, 927 (1983). "[T]he ultimate question as to the constitutionality of... pretrial identification procedures... is a mixed question of law and fact." Sumner v. Mata, 455 U.S. 591, 597 (1982). We give deference to the trial court's factual findings, but review the ultimate legal conclusion whether the procedure or resulting identification violates due process de novo. State v. Garcia, 224 Ariz. 1, ^ 6, 226 P.3d 370, 376-77 (2010). Trial courts apply a two-part test to determine if a procedure has complied with due process—whether the procedure is unduly suggestive and, if so, whether the unduly suggestive procedure is cured by the reliability of the identification made pursuant to that procedure. Manson v. Brathwaite, 432 U.S. 98, 10714 (1977).
¶9 In State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969), our supreme court set forth the procedure to be followed by a trial court in making that determination. First, if the in-court identification is challenged, the court must hold a hearing to determine whether the pre-trial identification procedure was undulysuggestive. Id. Second, if the pre-trial identification procedure was unduly suggestive, the court must determine whether the in-court identification has been tainted as a result. Id. Finally, if requested, the court must instruct the jury that "it must be satisfied beyond a reasonable doubt that the in-court identification was independent of the previous pretrial identification or if not derived from an independent source, it must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt." Id. "The requirements of Dessureault are sequential"; thus, if the trial court concludes that the pre-trial identification was not unduly suggestive it need not determine whether the in-court identification was tainted or give the Dessureault jury instruction. State v. Harris, 23 Ariz. App. 358, 359, 533 P.2d 569, 570 (1975).
¶10 We review the trial court's determination that a photographic lineup was not unduly suggestive for an abuse of discretion. State v. Phillips, 202 Ariz. 427, ¶ 19, 46 P.3d 1048, 1054 (2002). A photographic array is not unduly suggestive so long as it "depict[s] individuals who basically resemble one another such that the suspect's photograph does not stand out." State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1181 (1985). Contrary to Tamplin's argument, we find nothing in the record to suggest that the photographic array was unduly suggestive. And, Tamplin has not cited, nor have we found, any authority to support his contention that the failure to administer a warning that the suspect may not be depicted in the array renders the procedure unduly suggestive. Thus, the court did not abuse its discretion in finding the photographic lineup was not unduly suggestive. In light of that determination, we need not reach the second and third requirements of Dessureault.
¶11 Tamplin nevertheless argues that A.'s in-court identification was tainted because she had conducted internet research the week before trial and had found the same photograph that had been used in the photographic lineup on a local newspaper website. The state apparently had provided this photograph to the media and did not warn A. not to conduct her own investigation before testifying. Tamplin argues this rendered A.'s in-court identification unreliable.
¶l2 Generally, for an in-court identification to be impermissibly tainted and thus inadmissible, the defendant must establish that the taint had been caused by state action. See State v. Garcia, 224 Ariz. 1, ¶ 9, 226...
To continue reading
Request your trial