State v. Valesquez

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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. VICTOR VALESQUEZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0419 DIVISION ONE FILED: 09/14/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-148638-001 DT The Honorable Pendleton Gaines, Judge AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee Phoenix Pamela J. Eaton Attorney for Appellant Phoenix B A R K E R, Judge ¶1 Defendant Victor Valesquez appeals his convictions and sentences for structure, two one counts count of of discharge aggravated of a assault, firearm six at counts a of endangerment, one count of disorderly conduct, and one count of unlawful discharge of a firearm. Defendant maintains: (1) identification evidence used against him was obtained from an unduly suggestive photographic lineup; and (2) his motion for continuance of his sentencing hearing was improperly denied because a third party had recently confessed to the crimes at issue. For the following reasons, we affirm. Facts and Procedural Background ¶2 In August 2008, Defendant s brother threw a birthday party for his girlfriend at Defendant s home in Buckeye. Defendant s brother, his girlfriend, and Defendant attended, as well as several of the girlfriend s cousins and friends, who arrived in two trucks. The friends and cousins were introduced to Defendant, who wore a white shirt, and his brother, who wore an orange Phoenix Suns jersey. ¶3 About an hour after the girlfriend s friends arrived, they decided to leave the party. cousins and They informed the girlfriend that they were leaving and walked toward their trucks. home to One of them ( Victim 1 ) then decided to return to the use the restroom. Another accompanied him. 2 person ( Victim 2 ) ¶4 As they approached the house, Defendant them and asked them where they were going. he wanted to use the restroom. confronted Victim 1 stated that Defendant vaguely accused them of wanting to start trouble, and the victims protested that they would be in and out of the house quickly. ¶5 with At that point, Defendant struck Victim 1 in the head an unopened bottle of beer, knocking him unconscious. Another person ( Victim 3 ) heard screaming, ran to where Victim 1 was laying, and tried to call 9-1-1. As Victim 3 dialed, Defendant s brother hit him in the face. ¶6 Defendant entered his home and ran into his bedroom where he kept his guns. carrying a gun in one When he returned downstairs he was hand and a long clip in the other. Defendant went to the front of his home and shot his gun up in the air. While other guests were fighting with a fourth victim, Defendant was heard stating to his brother, Move, I m going to shoot this mother f-----. ¶7 The girlfriend s friends and cousins retreated to their trucks and started to drive away. shot at them multiple times. eventually Defendant Victim 2 and two other witnesses saw Defendant fire his gun at the truck. ¶8 Six bullets hit a truck driven by one of the witnesses ( Driver 1 ). One witness ( Driver 2 ). bullet hit the truck driven by another It passed through Victim 2 s right thigh, 3 landing in the left side of his groin after grazing his testicle. ¶9 The police met with the group shortly thereafter at a nearby Walgreen s. Driver 2 described the shooter to one officer as a bald Hispanic male and to another as a bald Hispanic male wearing a white shirt. ¶10 When police arrived at the scene of the crime, someone present at the location photographed Defendant. The police then used a computer to select five similar photographs of suspects to create a photographic lineup. All six people presented in the lineup were Hispanic males of approximately the same age. All had shaved heads. Although Defendant was the only one who was entirely clean-shaven, the other five photographs were of people with little facial hair, or with stubble. image showed him wearing a white T-shirt. Defendant s Another person in the lineup was wearing a white undershirt, one was wearing a white shirt under a black shirt, and another was shirtless. Of the other two people in the lineup, one was wearing a black shirt, and the other was wearing a gray shirt. A police officer presented the lineup to Driver 2 less than five hours after the shooting, and the driver identified Defendant as the shooter. Driver 1 described the person with the gun as having a shaved head, wearing a white T-shirt, and being the owner of the home 4 where the party was held. Ten hours after the incident he also selected Defendant from the photographic lineup. ¶11 The officer also showed the lineup to Victim 2 after his surgery, and Victim 2 identified Defendant as the person who hit Victim 1. recovering in Victim 1 was also shown the lineup as he was the hospital. He identified Defendant as the party s host from the lineup in [l]ess than a second. ¶12 Within ten to eleven hours after the incident, two other people who attended the party identified Defendant as the shooter. One said that he did not see the shooter, but he selected Defendant from the lineup as the person who owned the home where the party took place. The second identified Defendant from the lineup almost immediately as the person that she [saw] fire the gun. ¶13 Defendant was charged with eleven felonies, including discharging a firearm, aggravated assault, and endangerment. Defendant claimed the photographic lineup was unduly suggestive and moved to suppress the lineup identification evidence. The court held a hearing pursuant to State v. Dessuerault, 104 Ariz. 380, 453 P.2d 951 (1969), and found that the State had shown by clear and convincing evidence that the lineup was not unduly suggestive. ¶14 Defendant was convicted of all eleven felonies. trial judge set the sentencing hearing for April 3, 2009. 5 The Three days before the hearing, Defendant filed a motion to continue to allow for briefing on the issue of residual doubt. Defendant wanted to file a motion to vacate judgment on the ground that Defendant s brother had confessed to firing all of the gunshots. ¶15 Although the court denied Defendant s motion, it determined that the sentences would run concurrently based on a variety of factors including residual doubt that Defendant was the shooter. The court explained that it denied his motion due to prejudice that would be suffered by the victims, and because residual doubt is not an issue to be addressed at sentencing, but instead concerns factual innocence. ¶16 Defendant convictions. was sentenced and timely appealed his We have jurisdiction under Article VI, Section 9, of the Arizona Constitution, and Arizona Revised Statutes §§ 12120.21(A)(1), 13-4031, and 13-4033(A) (2010). Discussion 1. ¶17 Photographic Lineup Identification Evidence Defendant appeals the trial court s finding that the photographic suggestive. lineup We identification review a trial procedure court s was ruling not on identification procedures for abuse of discretion. unduly pretrial State v. Moore, 222 Ariz. 1, 7, ¶ 17, 213 P.3d 150, 156 (2009). ¶18 The Due Process Clause of the Fourteenth Amendment requires pretrial identification procedures to be conducted in a 6 fundamentally fair manner that protects the defendant s right to a fair trial. State v. Lehr, 201 Ariz. 509, 520, ¶ 46, 38 P.3d 1172, 1183 (2002) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)); see also U.S. Const. amend. XIV, § 1. A procedure will not be unconstitutional simply because it is overly suggestive. Lehr, 201 Ariz. at 520, ¶ 46, 38 P.3d at 1183. This is because [i]t is the likelihood of misidentification rather than the suggestiveness itself that violates the due process right. id. (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)). See If the identification is reliable despite suggestiveness, the procedure is constitutional. ¶19 Thus, Id. admissibility of identification determined by a two-part test. Id. (1) procedure whether suggestive ; the and method (2) if or so, if evidence is The court must assess: the used was procedure unduly led substantial likelihood of misidentification . . . . Id. conditions must be satisfied to exclude the evidence. to a Id. a. ¶20 Both Suggestiveness Photographic lineups need not[,] and indeed usually cannot be ideally constituted. State v. Phillips, 202 Ariz. 427, 433, ¶ 20, 46 P.3d 1048, 1054 (2002) (quoting State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1184 (1985)). the law basically only requires resemble one that they another 7 depict such that individuals the Thus, who suspect s photograph does not stand out. ¶ 20, 46 P.3d at 1054. Phillips, 202 Ariz. at 433, For example, in Alvarez, it was not impermissibly suggestive for the defendant to be the only one pictured with a facial mole. 180-81. 145 Ariz. at 372-73, 701 P.3d at Nor was it unacceptable for the majority of people pictured to be a different race than the defendant, so long as the basic resemblance requirement was met. at 181 (holding that photographic Id. at 373, 791 P.3d lineup comprised of two Hispanic individuals, one of whom was the defendant, and four African-American individuals was not unduly suggestive when the victim had described her African-American features). assailant as Hispanic with some Because the question is whether the procedure is unduly suggestive to the witness, the witness s description picking the determining of the perpetrator defendant from if a unduly suggestive. particular the and the lineup witness s will characteristic be made reason for important in the lineup See State v. Mead, 120 Ariz. 108, 111-12, 701 P.2d 1178, 1180-81 (1985) (holding that lineup procedure was permissible even though the defendant was the only one without facial hair when facial hair was not an integral part of the victim s description of the assailant and when no indication that the defendant was selected from the lineup due to his lack of facial hair existed). 8 ¶21 Here, Defendant claims that the photographic lineup from which he was identified by five different witnesses was impermissibly suggestive because he was the only person pictured who was (1) bald, (2) clean-shaven, and (3) wearing a white Tshirt. Based on the record, we cannot hold that the trial court abused its discretion by finding that the lineup was not lineup is not pictured in the impermissibly suggestive. ¶22 Defendant s entirely accurate. characterization All of the of the individuals lineup had shaved heads and were nearly bald. Even Defendant s picture showed some indication of stubble on his head. Thus, all of the people pictured had similar hairstyles. ¶23 one Similarly, although Defendant appears to be the only pictured who was entirely clean-shaven, the facial hair shown on the other photographs did not consist of much more than slight stubble. facial hair Further, similar to Mead, Defendant s lack of was not an integral part of the witness s description of Defendant, and the record lacks any evidence that Defendant s lack of facial hair caused the witnesses to select Defendant s photograph from the lineup. ¶24 photograph Finally, Defendant s white T-shirt did not make his expressly conspicuous. held whether The Arizona showing a Supreme Defendant Court wearing has not similar clothing to a witness s description in a photographic lineup is 9 unduly suggestive. See State v. Ware, 113 Ariz. 340, 343, 554 P.2d 1267, 1271 (1976) (holding that when the witness noted that the offense had been committed by a person wearing a blue denim jacket, and when the defendant was the only one pictured in the photographic lineup wearing a blue denim jacket, this alone did not require exclusion of the identification because it was nevertheless reliable). ¶25 hair, Here, Defendant s clothing, unlike his lack of facial was something integral to the witnesses descriptions. Ultimately, however, Defendant s common and non-descript white T-shirt did not make his photograph stand out from the others in the lineup. One of the individuals was wearing a white undershirt. Another was wearing a white black shirt. Another was shirtless, meaning that it could have been Defendant had he removed his shirt. shirt underneath a A final person was wearing what may be a grey shirt, but in very dark lighting that makes it difficult to determine whether the shirt is grey or white. ¶26 wearing Other jurisdictions have also held that a defendant clothing necessarily Bowens, 733 make A.2d matching a a unduly lineup 977, witness s 984 85 description suggestive. (Conn. App. See 2001) does State not v. (holding photographic lineup not unduly suggestive when the defendant was one of only two people out of eight pictured wearing a hooded 10 jacket, the clothing that the witness had identified the shooter as wearing); Thompson v. State, 884 A.2d 678, 694 (Md. App. 2005) (holding that photo lineup was not impermissibly suggestive even though the defendant was wearing a white shirt and the witness had claimed that the perpetrator was wearing a white T-shirt when two of the photos in the array depicted people in white T-shirts, and one photo depicted a person in a white T-shirt with a jacket over it ); People v. Drayton, 896 N.Y.S.2d 320, 321 (N.Y. App. Div. 2010) (holding that even though the defendant was almost the only one wearing a white shirt in the photo lineup when the victim had described one of the perpetrators as wearing a white lineup was not unduly suggestive). shirt, the photographic Further, we are not aware of any requirement that officers be required to change suspects clothing prior to photographing them for a lineup to avoid undue suggestiveness, at least when the suspect is wearing something as common as a plain white T-shirt. ¶27 Thus, based on the foregoing, we cannot hold that the trial court abused its discretion by finding the identification procedure acceptable. 11 b. Reliability ¶28 Even if the photographic lineup were unduly suggestive, it was still permissible because the identification was nevertheless reliable. The reliability of an identification is based on the totality of the circumstances. U.S. at 199. Biggers, 409 In assessing the totality of the circumstances, a court will weigh five factors derived from Neil v. Biggers: the opportunity of the witness to view the criminal at the time of the crime, the witness s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, crime and the confrontation. P.3d at 1184 appellate (quoting court may and time between the Lehr, 201 Ariz. at 521, ¶ 48, 38 Brathwaite, weigh the the 432 U.S. Biggers at 114). factors based An on information present in the trial record even if the trial court did not explicitly weigh them. State v. Leyvas, 221 Ariz. 181, 190 n.6, ¶ 30, 211 P.3d 1164, 1174 n.6 (App. 2009); see also Biggers, 109 U.S. 198-201 (reversing trial court s finding that the identification procedure at issue was unduly suggestive, and holding that the identification was still reliable based on facts present in the record). ¶29 Here again, weighing the Biggers factors reveals that the trial court did not abuse its discretion. The witnesses had ample opportunity to view the shooter, as they attended a party 12 at his home and were introduced to him upon arrival. They were thus already acquainted with Defendant when they later saw him holding a gun and could identify him accurately. very little time identifications witnesses passed as and less between than soon twelve as the the sufficiently recovered in the hospital. were certain of their crime hours other Additionally, for two and three of witnesses the the had All of the witnesses identifications, and many selected Defendant from the lineup almost instantly. ¶30 The witnesses descriptions of Defendant as a bald, Hispanic male wearing a white shirt, although not extremely specific, were also not vague enough to raise suspicion as to lack of reliability. Finally, the record does not reveal the degree of attention that the witnesses devoted to observing the victim. But with three factors weighing in favor of the State, and with two factors being neutral, we cannot say that the trial court abused its discretion by allowing evidence of the identification. 2. Motion to Continue Sentencing Hearing ¶31 should Defendant also maintains that his sentencing hearing have been continued to allow brother s confession to the crimes. him to investigate his For this court to overturn a trial court s denial of a continuance, the challenger must show both an abuse of discretion and prejudice to the defendant. 13 State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990). ¶32 A criminal defendant has no right to present evidence of residual doubt as a mitigating circumstance. State v. Speer, 221 Ariz. 449, 462, ¶ 68, 212 P.3d 787, 800 (2009). Defendant therefore had no right to a continuance to present evidence of residual doubt, so the trial court did not abuse its discretion by declining to grant Defendant s motion. If Defendant wishes to contest his factual guilt due to newly discovered evidence, the proper forum for this dispute is a Rule 32 petition for post-conviction relief. Conclusion ¶33 For the reasons set forth above, the decision of the trial court is affirmed. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ DONN KESSLER, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 14

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