State v. Dennis

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. IVORY LEWIS DENNIS, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/04/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1111 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-006874-001 DT The Honorable George H. Foster, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Craig W. Soland, Assistant Attorney General Attorneys for Appellee Law Office of Nicole T. Farnum By Nicole T. Farnum Attorneys for Appellant Phoenix Tempe N O R R I S, Judge ¶1 sentences Ivory Lewis Dennis appeals from his convictions and for aggravated assault, misconduct involving weapons. a dangerous felony, and Dennis argues the superior court should not have admitted photographs depicting the victim s injuries because the State offered them solely for the purpose of inflaming the jury. Dennis also contends the court should not have admitted a surveillance video and argues the superior court should have precluded the victim s in-court identification because he was shown an unduly suggestive pretrial photographic lineup. As we explain below, we agree in part with Dennis s concerning argument introduction, however, did the not photographs. contribute to or Their affect the verdict, and because we disagree with Dennis s other arguments, we affirm his convictions and sentences. FACTS AND PROCEDURAL BACKGROUND1 ¶2 Shortly before 9:00 p.m. on June 3, 2007, F. and R. walked to a convenience store near Maryvale Parkway and West Indian School Road in Phoenix. store, F. called a taxi. Using a payphone outside the While F. and R. were waiting near the payphone, Dennis pulled into the parking area in a white PT Cruiser. Dennis approached Dennis s cell phone. F. and accused him of taking The confrontation escalated, culminating with Dennis pulling a gun from his pants and shooting F. in the 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Dennis. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 face. At trial, F. testified the bullet went in [my eye], out, hit me in the [back of my] shoulder [], went in and out. ¶3 A jury found Dennis guilty of aggravated assault, a dangerous felony, and timely appealed. Section 9, of misconduct involving weapons. Dennis We have jurisdiction pursuant to Article 6, the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21 (2003), 13-4031 (2001), and -4033 (Supp. 2009). DISCUSSION I. ¶4 Photographic and Video Evidence Dennis first argues the superior court should not have admitted repetitive and gruesome photographs in violation of Arizona Rule of Evidence 403.2 photographs depicting the cumulative, and little had Although some of the graphic injury to to no the victim s probative face value to were any contested fact, their admission did not contribute to or affect the jury s verdict. ¶5 We review evidentiary rulings on allegedly gruesome or cumulative photographs for an abuse of discretion. State v. Jones, 203 Ariz. 1, 9, ¶ 28, 49 P.3d 273, 281 (2002). 2 Here, Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ariz. R. Evid. 403. 3 over Dennis s objection, the superior court admitted seven photographs taken after F. was admitted to the hospital. These photographs included four close-ups of F. s face, one showing the destroyed eye socket, two photographs of the shoulder injury, and another photograph of F. lying on a stretcher, taken from a few feet away. At trial, the State published each of the hospital photographs to the jury while F. explained what each photograph depicted. F. also testified in detail about the extent of his injuries and surgeries, and pointed out to the jury his substantial facial damage and missing eye.3 ¶6 Although the superior court would not have abused its discretion had it admitted a photograph depicting each of F. s injuries, most of the photographs were cumulative, of little probative value, Dennis argues. (cumulative, and introduced for their shock value, as See Jones, 203 Ariz. at 10, ¶ 33, 49 P.3d at 282 nonessential, and gruesome should not be admitted into evidence). photographs generally Error, however, be it constitutional or otherwise, is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict. Id. (quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)). Here, the superior court s error was harmless. 3 F. also pointed to an exit wound scar on his shoulder, but it is unclear from the record whether he displayed the injury to the jury. 4 ¶7 Overwhelming evidence supported Dennis s conviction. Dennis s girlfriend at the time of the incident, M., witnessed the altercation while sitting in the PT Cruiser only a few feet away, and testified Dennis shot the victim. M. s eight year old daughter, A., was sitting in the backseat of the PT Cruiser, witnessed most of the altercation, and also testified Dennis shot the victim. not completely Although M. and A. s versions of events were congruent portions of F. s testimony. with F. s, they corroborated key Had the photographs been excluded, F., M., and A. s testimony overwhelmingly supported the jury s verdicts. ¶8 Dennis next argues the superior court should not have admitted a graphic surveillance video, in violation of Rule 403. We disagree. ¶9 The video shows F. running into the convenience store after he was shot in the face, covering his bloody wounds while an off-duty nurse tries to calm him down. The video is captured from a distance and vantage point such that it is not overly gruesome. with the More importantly, the video, nearly contemporaneous shooting, is highly probative to corroborate F. s testimony and to prove the State s allegation of dangerousness 5 and serious injury.4 physical Thus, we see no abuse of discretion. II. Photographic Lineup ¶10 Finally, Dennis argues police presented an unduly suggestive photographic lineup to F. and therefore his in-court identification should have been precluded. ¶11 We review the fairness We disagree. and reliability of challenged identification for clear abuse of discretion. a State v. Lehr, 201 Ariz. 509, 520, ¶ 46, 38 P.3d 1172, 1183 (2002). Once an identification has been challenged, the superior court must hold contained a hearing unduly to determine suggestive whether identification circumstances. State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969). If the superior court determines pretrial identification was unduly suggestive, reliable. it then must determine whether or not it was Lehr, 201 Ariz. at 520-21, ¶¶ 46-48, 38 P.2d at 1183- 84 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972)). ¶12 At the Dessureault hearing, Dennis argued the tilt of his head, the color of the background, and the light on his face caused his photograph to stand out 4 from the others. The At trial, F. used the video to aid in his explanation of the layout of the convenience store and parking area and also pointed out the PT Cruiser could be seen on the video leaving the store after the shooting. 6 superior court found, and the record clearly supports by clear and convincing evidence, its finding the photographic lineup was not unduly description; individuals suggestive. they had a wore The similar direct light subjects fit a at least clothing; on the face; and similar two another photograph featured the same background hue as and a comparable subject to Dennis. not unduly Because the pretrial photographic lineup was suggestive, we do not reach the addressing the reliability of the identification. second step See Lehr, 201 Ariz. at 521, ¶ 48, 38 P.2d at 1183. CONCLUSION ¶13 For the foregoing reasons, we affirm Dennis s convictions and sentences. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________ DANIEL A. BARKER, Judge /s/ ____________________________________ PETER B. SWANN, Judge 7

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