STATE v. RODRIGUEZ
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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. ROY SAIZ RODRIGUEZ, Appellant. DIVISION ONE FILED: 08/27/2013 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CR 12-0476 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-166584-001 The Honorable Jeanne Garcia, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel Criminal Appeals/Capital Litigation Division And Diane Leigh Hunt, Assistant Attorney General Attorneys for Appellee Marty Lieberman, Maricopa County Office of The Legal Defender By Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant Tucson Phoenix B R O W N, Judge ¶1 sentences Roy for Saiz Rodriguez possession or appeals his use dangerous of convictions drugs and and possession of drug paraphernalia. Rodriguez argues (1) he did not waive his right to appeal by delaying his sentencing; (2) the trial court photograph of erred when Rodriguez; instruct the jury. it and admitted (3) the an unduly court did suggestive not properly For the reasons that follow, we affirm. BACKGROUND ¶2 Police observed him stopped commit a Rodriguez traffic on his bicycle violation. after They they identified Rodriquez through his Arizona Identification Card and arrested him for an outstanding misdemeanor warrant. The search incident to and the arrest revealed methamphetamine related drug paraphernalia in Rodriguez s clothing. ¶3 The State charged Rodriguez with possession or use of dangerous drugs paraphernalia. absconded. (methamphetamine) and possession of drug The trial proceeded in absentia after Rodriguez A jury convicted Rodriguez as charged and the trial court sentenced him to a mitigated aggregate term of six years imprisonment. pursuant to Rodriguez Arizona appealed Revised and Statutes we have ( A.R.S. ) jurisdiction sections 12- 120.21(A), 13-4031 and -4033. DISCUSSION I. Waiver of the Right to Appeal ¶4 Because Rodriguez absconded, the court was unable to sentence him until eleven months after his convictions. 2 As set forth in A.R.S. § if the conviction 13-4033(C), a defendant s defendant voluntary may not absence sentencing within ninety days after the conviction. appeal a prevents In apparent anticipation of the State s claim of waiver, Rodriguez first argues on appeal that he did not waive his right to appeal when he delayed sentencing by his absence because no one made him aware such a waiver was possible. ¶5 This dispositive. court s opinion in State v. Bolding is If a defendant delays sentencing for more than ninety days through a voluntary absence, that defendant waives the right to appeal only if the defendant was first warned that such a waiver was possible. 279, 285 (App. 2011). 227 Ariz. 82, 88, ¶ 20, 253 P.3d The parties do not dispute that Rodriguez was never informed he could waive his right to appeal based on his absence. Therefore, Rodriguez did not waive his right to appeal pursuant to A.R.S. § 13-4033(C). While the State argues Bolding was wrongly decided, the State has failed to persuade us that we should revisit or otherwise depart from its holdings. II. Admission of the Photograph ¶6 Rodriguez next argues the trial court erred when it admitted a photograph of Rodriguez that identified Rodriguez s full name, age, date of birth, sex, height, race, weight, hair length and color and eye color at the base of the photograph. Rodriguez does not contend the 3 trial court should not have admitted the photograph itself, but argues the failure to redact the information at the base of the photograph rendered it unduly suggestive for purposes of an in-court identification. ¶7 We review a abuse of discretion. trial court s evidentiary rulings for State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). ¶8 Because Rodriguez argued in it the person would police at be officers trial due necessary to for photograph to identify Rodriguez. could his the not absence, officers identify the to State use a Rodriguez conceded the State could use the photograph itself for this purpose, but objected to the additional suggestive. 1 information on the photograph as unduly The trial court held the photograph was admissible without further redaction of any information. The court held that Rodriguez s absence required the use of the photograph; the references to the subject s physical characteristics merely described what one could see in the photograph and inclusion of other information did not prejudice Rodriguez. ¶9 At trial, the officers used the photograph to identify Rodriguez to possessed the the jury as the methamphetamine person and they arrested paraphernalia. and who Before the prosecutor showed the first officer the picture, the officer 1 Rodriguez raised other objections he does not address on appeal. 4 testified he identified Rodriguez at the scene with the Arizona Identification Card Rodriguez provided him. The officer then described the contents of that card, including Rodriguez s name, height, weight and color of hair and eyes. The prosecutor then showed the officer the photograph and asked the officer if he recognized it. When the officer responded in the affirmative, the prosecutor asked, What is it? The officer identified it as a photograph of Rodriguez, the person he contacted during the traffic stop. The officer further testified he did not use or need any of the information at the bottom of the photograph to identify Rodriguez. Further, the officer was 100% positive the person depicted in the photograph was the person he arrested and who possessed the methamphetamine and paraphernalia. ¶10 When testified, photograph. the the second prosecutor officer asked involved him if he in the arrest recognized the When the officer answered in the affirmative, the prosecutor again asked, What is it? The officer identified it as the male . . . that we made the traffic stop with. The officer further testified that he, too, was 100% certain. ¶11 The trial court did not abuse its discretion when it determined the photograph was not unduly suggestive for purposes of an in-court identification. A witness may use a booking photograph to make an in-court identification of a defendant who is absent from trial. State v. Thibeault, 131 Ariz. 192, 194, 5 639 P.2d 382, 384 (App. 1981). That the booking photograph may contain information, additional identifying such as that at issue here, is no more suggestive than asking a witness if the witness sees a person in the courtroom and that person is the only person sitting with defense counsel at a table with a sign that reads Defense. See State v. Meeker, 143 Ariz. 256, 265, 693 P.2d 911, 920 (1984). Further, the physical characteristics described in the photograph are the same characteristics the witnesses would have observed if Rodriguez had chosen to appear at trial. Many of the characteristics described in the photograph, such as age, sex, race, hair length and color, eye color, the presence or absence of facial hair and whether the subject is wearing glasses appear in the photograph itself. The inclusion of additional information such as a name and date of birth was not unduly suggestive given the testimony presented at trial. III. The Jury Instruction ¶12 As the final issue on appeal, Rodriguez argues the trial court erred when it failed to instruct the jury regarding the factors it should consider in its reliability of the in-court identifications. he did not request such an instruction. evaluation of the Rodriguez concedes The failure to request a jury instruction waives the right to raise the issue on appeal absent fundamental error. See State v. Gendron, 168 Ariz. 153, 6 154, 812 P.2d 626, 627 (1991). To establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even if fundamental error has been established, a defendant must still demonstrate the error was prejudicial. ¶13 Id. at ¶ 26. We find no error, fundamental or otherwise. First, Rodriguez has never identified the instruction he claims the court should have given and has never otherwise identified the factors the court should have instructed the jury to consider. We can find no error in the failure to submit an instruction under these circumstances when the appellant has never explained exactly what information that instruction should have contained. It is not enough to simply argue the court should have instructed the jury to consider unidentified factors. 2 2 In State v. Geeslin, our supreme court reviewed the issue whether a trial court should have instructed the jury regarding a lesser-included offense even though the appellant never identified the specific instruction at issue. 223 Ariz. 553, 554, ¶ 3, 225 P.3d 1129, 1130 (2010). Geeslin, however, is distinguishable. In Geeslin, the supreme court upheld the general rule that an appellant must ensure that the record on appeal contains all material necessary for appellate review. Id. at ¶ 5. Even so, the court further held that while the record on appeal did not include the requested instruction, the record was still sufficient to permit appellate review. The record revealed the appellant requested an instruction that 7 ¶14 Second, proposition Rodriguez that when identification was identification, a cites there tainted trial is by no an court no authority suggestion unduly must for the an in-court suggestive pretrial still instruct a jury regarding factors to consider when determining the reliability of the in-court identification. such authority. situations after in they The which made cases Further, we are aware of no Rodriguez witnesses pretrial made relies in-court identifications that were arguably unduly suggestive. upon address identifications under circumstances In State v. Nottingham, the trial court refused to instruct the jury regarding factors to consider when determining identification testimony. 951 (App. 2012). entitled to a the reliability of eyewitness 231 Ariz. 21, 23, ¶ 3, 289 P.3d 949, This court reversed and held defendants are cautionary instruction when they have shown suggestive circumstances attendant to a pretrial identification that tend to bring the reliability identification testimony into question. P.3d at 955. of the [in-court] Id. at 27, ¶ 14, 289 Our decision in Nottingham relied in part on Perry informed the jury that unlawful use of means of transportation was a lesser-included offense of theft of means of transportation. The trial court addressed the request on the record and carefully explained why it would not give the instruction. Therefore, the record contained everything necessary to address the issue and the reviewing court did not need the missing instruction itself. Id. at 554-55, ¶¶ 6-9, 1130-131. The circumstances and the record on appeal in this case are not analogous to those in Geeslin. 8 v. New Hampshire, also cited by Rodriguez. States Supreme Court recognized a In Perry, the United trial court can give eyewitness specific jury instructions that warn the jury to take care in appraising identification evidence. Hampshire, __ U.S. __, 132 S.Ct. 716, 728-29 Perry v. New (2012). Like Nottingham, however, Perry addressed a situation in which the circumstances of a pretrial identification raised questions about the reliability of a subsequent in-court identification. Id. at 721-22. ¶15 Here, there is no evidence of suggestive circumstances attendant to a pretrial identification that tend to bring the reliability testimony into question. of the [in-court] identification Further, for the reasons explained above, there is nothing in the record to otherwise suggest the in-court Therefore, instruct identification the the trial jury determination of procedures court did regarding the not were err factors reliability identifications. 9 unduly when to of it suggestive. failed consider the in to its in-court CONCLUSION ¶16 Based on the foregoing, we affirm Rodriguez s convictions and sentences. _______________/s/_______________ MICHAEL J. BROWN, Presiding Judge CONCURRING: _____________/s/__________________ JON W. THOMPSON, Judge ____________/s/___________________ MARGARET H. DOWNIE, Judge 10
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