Opinion
No. 2 CA-CR 2017-0248
05-17-2019
THE STATE OF ARIZONA, Appellee, v. QUENTIN LEE EVANS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20151050001
The Honorable Sean E. Brearcliffe, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Eppich concurred. STARING, Presiding Judge:
¶1 Quentin Evans appeals from his convictions for first-degree burglary, three counts of armed robbery, five counts of kidnapping, three counts of aggravated robbery, and two counts of aggravated assault. On appeal, he argues the trial court erred by denying his motion to suppress pretrial and in-court identifications, and by denying his "motion for mistrial" when some jurors had the opportunity to see him in shackles. For the following reasons, we affirm Evans's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Evans's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). One evening, a group of friends, J.F., M.E., and T.V., left J.F.'s house and went to pick up O.E. from his workplace, leaving A.O. behind at the house. The four friends returned to J.F.'s house. After they parked in the driveway, three men approached and pulled all of them except J.F. out of the car. The men had a gun and stole various possessions and money from the victims. At some point, J.F. got out of the car and confronted the men, prompting one of them to strike him in the back of the head with the gun. Two of the men went inside the house and awoke A.O. at gunpoint, while looking for more money. They then left the house, and with the third man then left the scene.
¶3 Detectives interviewed M.E. and J.F. individually at the scene. They told detectives that the three attackers were using nicknames, one of which being "Joker." M.E. said he knew a person nicknamed Joker, and immediately recognized him when he saw him during the attack. J.F. said he also knew someone who went by Joker, and recognized his mannerisms during the attack. When detectives showed M.E. and J.F. a photograph of Evans, both positively identified him as the Joker they knew.
¶4 Before trial, Evans filed a motion to suppress evidence of identification, arguing that showing his picture to M.E. and J.F. was impermissibly suggestive, unreliable, and resulted in unfair prejudice, and, therefore, testimony about the pretrial identifications and any in-court identification should be precluded. The detective who showed M.E. and J.F. the photograph of Evans testified at the motion hearing, summarizing his interviews with the victims. The trial court found that "the identification process used with [M.E.] to identify Mr. Evans or Joker was not unduly suggestive and is reliable," and later found J.F.'s identification similarly admissible after taking it under advisement. At trial, M.E. and J.F. again identified Evans as Joker.
¶5 The jury found Evans guilty as described above. The trial court sentenced him to a combination of consecutive and concurrent, presumptive and minimum prison terms totaling 15.5 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
The trial court granted a judgment of acquittal on two armed robbery counts and two aggravated robbery counts. See Ariz. R. Crim. P. 20(a)(1). On the state's own motion, the court later dismissed a prohibited possessor count, which had been severed before trial.
Discussion
Pretrial Identifications
¶6 Evans argues the trial court erred by denying his motion to suppress the pretrial and in-court identifications made by M.E. and J.F. We review the court's "rulings on pretrial identifications for abuse of discretion." State v. Moore, 222 Ariz. 1, ¶ 17 (2009); see also State v. Leyvas, 221 Ariz. 181, ¶ 9 (App. 2009). We also review the reliability and fairness of a challenged identification for an abuse of discretion. Leyvas, 221 Ariz. 181, ¶ 9. Whether a common law procedural rule with constitutional underpinnings applies to a particular factual scenario is a question we review de novo. Id. Our review is "based solely on the evidence presented at the suppression hearing," and we defer to the court's factual findings unless clearly erroneous. See Moore, 222 Ariz. 1, ¶ 17.
¶7 At the suppression hearing, the detective who showed M.E. and J.F. the photograph of Evans testified that both victims had told him they knew someone called Joker. Unsolicited, M.E. told the detective that Joker's real name was "Quen." M.E. elaborated that he recognized the nickname Joker being used by the attackers, and knew who it was because Joker used to live next to his house and play soccer every day. Although M.E. "barely glanced at him" during the attack, "he looked exactly like him." M.E. went on to give detectives a physical description of Joker.
¶8 J.F. told detectives that he had known Joker for a long time, seeing him about twenty to thirty times before the attack. He did not see Joker's face, but saw the person being referred to as Joker and that he "acknowledged and accepted" that was his nickname. J.F. also gave detectives a physical description of Joker. After retrieving a photograph of Evans, the detective showed M.E. the photograph to confirm it was the same person who had attacked him and who he was referring to as Joker, and showed J.F. the photograph just to see if the individual he "had on the first interview [with M.E.] was the same person [J.F.] was referring to as Joker." Both M.E. and J.F. positively identified Evans.
¶9 "The Due Process Clause of the Fourteenth Amendment requires us to ensure that any pretrial identification procedures are conducted in a manner that is fundamentally fair and secures the suspect's right to a fair trial." Leyvas, 221 Ariz. 181, ¶ 10 (quoting State v. Lehr, 201 Ariz. 509, ¶ 46 (2002)). To determine whether an identification is admissible, a court first examines "whether the method or procedure used was unduly suggestive," and then, "even if unduly suggestive, whether it led to a substantial likelihood of misidentification, i.e., whether it was reliable." Lehr, 201 Ariz. 509, ¶ 46. Thus, an unduly suggestive pretrial identification procedure does not bar the admission of an identification if it is reliable in spite of any suggestiveness. See Leyvas, 221 Ariz. 181, ¶ 10. "Whether an identification procedure is so suggestive that it violates a defendant's due process rights depends on the totality of the circumstances." State v. Rojo-Valenzuela, 237 Ariz. 448, ¶ 6 (2015).
Relying on Perry v. New Hampshire, 565 U.S. 228 (2012), Evans argues that the identification procedure used must also be necessary. Yet Perry merely synthesized previous decisions where an "undeniably suggestive" identification procedure does not violate due process when it is necessary. See id. at 238-40. Thus, evidence of the identification procedure's necessity is not required, but, rather, evidence of necessity can ameliorate due process concerns created by a suggestive identification. Cf. State v. Goudeau, 239 Ariz. 421, ¶¶ 130-33 (2016).
¶10 Evans argues that the identification procedure used was unduly suggestive because detectives presented the photograph of Evans singly to the victims. But a procedure is not unduly suggestive where "the witness ha[s] a completely independent basis for the identification." State v. Taylor, 109 Ariz. 518, 519 (1973). That independent basis makes it "obvious that the victim [identified] the assailant for the benefit of the police so that they could arrest the right person rather than the police suggesting the identity of the defendant." Id. Here, both M.E. and J.F. had an independent basis for the identification of Evans—indeed a stronger one than was present in Taylor. See id. (victim did not know name of assailant, but saw him twice during previous fourteen months). M.E. and J.F. immediately recognized Evans during the attack and when shown his photograph, just like the victim in Taylor. Id.
¶11 The reasoning behind suppressing unduly suggestive identifications is in part "to protect the accused at a line-up from unfair suggestion or influence for 'once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on.'" State v. Nunez, 108 Ariz. 71, 74 (1972) (quoting United States v. Wade, 388 U.S. 218, 229 (1967)); see also State v. Smith, 146 Ariz. 491, 496 (1985) ("Unduly suggestive pretrial procedures may unfairly cause a witness to misidentify the defendant, and then to repeat the misidentification at trial."). This concern is not present where the police procedure "merely serve[s] to confirm the initial identification." Nunez, 108 Ariz. at 74.
¶12 The detectives in this case did not suggest an identity; instead, M.E. and J.F. suggested the identity of their attacker and the detectives confirmed it with a photograph. As the trial court noted, "[b]ecause [Evans] is someone known to [J.F.], the police conduct did not suggest [Evans's] identity to him in these circumstances." Thus, the identification procedure used by detectives was not unduly suggestive; M.E. and J.F. were "identifying [Evans] for the benefit of the police so that they could arrest the right person rather than the police suggesting the identity of [Evans]." Taylor, 109 Ariz. at 519.
The trial court correctly noted that any discrepancies between the victims' descriptions of the person they knew as Joker and their attacker is a jury question on the weight to give the identification testimony. See State v. Campbell, 146 Ariz. 415, 417 (App. 1985); see also Rojo-Valenzuela, 237 Ariz. 448, ¶ 11 (alteration in Rojo-Valenzuela) ("Once the identification is deemed admissible, '[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'" (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993))).
¶13 Accordingly, the trial court did not abuse its discretion in admitting the identifications.
Because we affirm the admission of the identifications as not unduly suggestive, we do not reach Evans's argument that the identifications were not reliable. See State v. Wood, 180 Ariz. 53, 70 n.14 (1994) ("Our disposition of this issue makes addressing this argument unnecessary."). --------
Visible Restraints
¶14 Evans argues the trial court erred by not granting him a new trial because some jurors had the opportunity to see him in shackles. Outside the presence of the jury, the deputy transporting Evans alerted the court that as he was exiting the holding cell with Evans behind him, three jurors walked by. The deputy assured the court that there was "no way [the jurors] could have seen [Evans's] handcuffs" because they were behind his back, but he was not sure whether they could have seen the leg restraints. The court asked both sides, "[I]s there anything you believe needs to be done or any instructions given?" Defense counsel agreed with the state that nothing should be done.
¶15 More than two weeks after his convictions, Evans filed a pro se "motion for mistrial," arguing that the jurors' opportunity to see him in shackles violated his due process rights. The trial court characterized the motion as a timely filed "motion for new trial," which, after a hearing, the court denied.
¶16 On appeal, Evans concedes that as a "motion for new trial," his motion was untimely. See Ariz. R. Crim. P. 24.1(b) (must be filed within ten days after verdicts). Instead, he argues the motion is better characterized as a "motion to vacate judgment," which must be filed within sixty days after entry of judgment and sentence. See Ariz. R. Crim. P. 24.2(b). But the state correctly points out—and Evans agrees in his reply—that even under this construction, the motion was premature because the court had not entered judgment and sentence when the motion was filed. See Ariz. R. Crim. P. 26.1(b), (c).
¶17 Further, the trial court lacked jurisdiction to consider an untimely motion for new trial or a premature motion to vacate judgment. See Ariz. R. Crim. P. 24.1(b) (motion for new trial "deadline is jurisdictional and the court may not extend it"); State v. Hickle, 129 Ariz. 330, 332 (1981) (trial court "d[oes] not have jurisdiction" to consider premature motion to vacate judgment). "Because appellate jurisdiction is derivative, when jurisdiction is lacking in the trial court, it is lacking on appeal." Webb v. Charles, 125 Ariz. 558, 560 (App. 1980). Thus, we lack jurisdiction to consider Evans's argument concerning the possibility jurors saw his shackles.
Disposition
¶18 For the foregoing reasons, we affirm Evans's convictions and sentences.