State v. Kriske

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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 DIVISION ONE FILED: 08/30/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) DONALD KRISKE, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0645 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-155103-001 DT The Honorable Pamela Hearn Svoboda, Judge Pro Tem AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Craig W. Soland, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 for Donald forgery Kriske and ( Defendant ) taking the appeals identity of his convictions another. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Officer Mann responded to a Kmart store regarding a shoplifting offense in July 2006. A female suspect had allegedly put a liquor bottle in her purse and then given it to a male. The male suspect had no identification, but identified himself as Kenneth Kriske and gave Officer Mann an address and social security number. The officer cited him for shoplifting, listing his name on the citation as Kenneth Francis Kriske, and describing him as six feet tall, 210 pounds, with hazel eyes and brown hair. ¶3 The man signed the citation. In January 2009, defendant s brother, Kenneth Kriske, applied for a job and learned there was a warrant for his arrest relating to a shoplifting charge. He contacted the police. Officer Mann went to Kenneth s home and realized he was not the man she had cited for shoplifting in 2006. Kenneth showed Officer Mann a photograph of his brother, Donald Kriske, and said he believed Thereafter, his Detective brother Cano had been presented using Officer photographic line-up containing two pictures: and the other of Kenneth. his Mann identity. with a one of defendant Officer Mann identified defendant as the man she had cited for shoplifting. 2 ¶4 In August 2009, defendant was indicted on one count of taking the identity of another and one count of forgery. Defendant challenged Officer Mann s identification of him and requested Officer Dessureault 1 a Mann identified cited for shoplifting. him lasted five to unobstructed view. hearing. At defendant as the the ensuing individual hearing, she had She testified that her 2006 interview of ten minutes, 2 during which she had an When she later met Kenneth Kriske, she knew right away he was not the person she had cited. Officer Mann had little memory of the photographic line-up. Detective Cano could not recall how quickly Officer Mann identified defendant, but believed she did so without hesitation, as the brothers to preclude don t look anything alike. ¶5 The court denied defendant s Officer Mann s identification. was convicted as charged. motion After a jury trial, defendant Defendant timely appealed. He contends the trial court abused its discretion when it found that [Officer reliable and identification. 1 Mann s] not proposed tainted by in-court a prior identification unduly was suggestive We have jurisdiction pursuant to Article 6, State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). 2 During cross examination, Officer Mann testified the encounter lasted between ten and twenty minutes. At trial, she testified the interview lasted between twenty and thirty minutes. 3 Section 9 Statutes of the Arizona ( A.R.S. ) Constitution, sections and Arizona 12-120.21(A)(1), Revised 13-4031, and -4033(A)(1). DISCUSSION ¶6 We review the fairness 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). The ultimate question of the constitutionality of a pretrial identification is, however, a mixed question of law and fact. State v. Moore, 222 Ariz. 1, 7, ¶ 17, 213 P.3d 150, 156 (2009). ¶7 Pretrial identifications must be conducted in a fundamentally fair manner to comport with a defendant s right to due process under the Fourteenth Amendment. State v. Nordstrom, 200 Ariz. 229, 241, ¶ 23, 25 P.3d 717, 729 (2001) (citing Stovall v. Denno, 388 U.S. 293, 297-98 (1967)). [T]he primary evil to be avoided is a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). procedure The is mere overly fact that suggestive, admission of an identification. 520, ¶ 46, 38 P.3d at 1183. a pretrial however, does identification not bar the State v. Lehr, 201 Ariz. at Rather, the question is whether the identification is reliable in spite of any suggestiveness. Id. 4 ¶8 Courts use a two-part test admissibility of an identification: in determining the (1) whether the method or procedure used was unduly suggestive, and (2) even if unduly suggestive, whether misidentification, Relevant factors it led to a i.e., whether include: (1) substantial it the was likelihood of reliable. witness s Id. opportunity to observe the suspect at the time of the crime; (2) the degree of attention of the witness; (3) the accuracy of a witness s prior description of the criminal; (4) the witness s level of certainty at the confrontation; and (5) the amount of time that passed between the crime and the confrontation. Biggers, 409 U.S. at 199-200; see also State v. Hicks, 133 Ariz. 64, 68, 649 P.2d 267, 271 (1982). ¶9 For purposes of this appeal, we photographic line-up was unduly suggestive. assume that the We then turn to the Biggers factors to determine whether it led to a substantial likelihood of misidentification. shoplifting Defendant suspect conceded for below a Officer Mann observed the male minimum that she of five to ten was able to observe individual for a significant amount of time. minutes. that The officer s view was unobstructed; the cited individual was not wearing a hat, hood, or sunglasses. ¶10 There was no specific testimony about Officer Mann s degree of attention. Biggers, 409 U.S. at 199-200. 5 Appellate courts, though, observers. have noted that police officers are trained See State v. Williams, 144 Ariz. 433, 440, 698 P.2d 678, 685 (1985) (commenting that a police officer is trained in observation). Mann s Additionally, the accuracy and depth of Officer physical citation description reflect accuracy of Transportation, a high of the degree that description, Motor Vehicle of suspect upon issuing the As for the Department of description of attention. a Division 2008 ( MVD ) defendant listed him as six feet tall, 218 pounds, with hazel eyes. ¶11 In terms of the level of certainty . . . at the confrontation, Biggers, 409 U.S. at 199-200, Officer Mann testified that, upon meeting Kenneth, she was sure he was not the person she had cited. Detective Cano did not recall any hesitation by Officer Mann when he showed her photographs of the brothers. A photograph may identification. witness indicate unhesitating a high selection degree of of a suspect s certainty in the See State v. Alvarez, 145 Ariz. 370, 372, 701 P.2d 1178, 1180 (1985). ¶12 The most significant factor in defendant s favor is the amount of time that elapsed between the shoplifting offense and Officer Mann s identification. 3 3 But, as previously noted, It is unclear exactly when the photographic line-up took place. At trial, Officer Mann initially testified the 6 whether a pretrial identification is reliable depends on the totality Though of the the time circumstances. lapse here is Biggers, 409 substantial, U.S. in at balancing 199. the factors, the trial court could have reasonably concluded that the strength of the other factors was sufficient to offset the time gap. 4 CONCLUSION ¶13 For the reasons stated, we affirm defendant s sentences and convictions. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ MICHAEL J. BROWN, Judge photographic line-up occurred in January 2009, but later agreed it might have happened as late as June 2009. 4 Additionally, the court instructed the jury that the State must prove the reliability of Officer Mann s in-court identification beyond a reasonable doubt. 7

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