Opinion
No. 2 CA-CR 2016-0403
05-17-2018
THE STATE OF ARIZONA, Appellee, v. ARMANDO FRANCISCO GRANILLO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee The Roach Law Firm LLC, Tucson By Brad Roach 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NOT FOR PUBLICATION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. CR20153001001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
The Roach Law Firm LLC, Tucson
By Brad Roach
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred.
EPPICH, Judge:
¶1 After a jury trial, Armando Granillo was convicted of armed robbery, assault, and aggravated robbery, and sentenced to concurrent prison terms, the longest of which was 9.25 years. He now appeals, arguing that the trial court erred in denying his motion to suppress a witness's out-of-court identification of him and to preclude that witness from identifying him during trial. For the following reasons, we affirm.
Relevant Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the conviction. See State v. Pena, 235 Ariz. 277, ¶ 5 (2014). On January 2, 2015, Andrea Blanco drove Granillo, her then boyfriend, and Marco Moreno to a convenience store in Tucson. Blanco parked, exited, and performed brief reconnaissance of the store. She returned to the car and told the men what she had seen. Granillo, armed with a realistic looking airsoft gun that shoots plastic BBs, and Moreno went into the store and held up the cashier, taking money from the register and assorted retail items.
¶3 Having viewed security footage of the incident and developed a few leads, a police detective returned to the store several weeks later to show the cashier photographic lineups. When shown a lineup containing Granillo's picture, the cashier said he "looked most similar" to the man she had seen with the gun. When shown a separate lineup containing Moreno's picture, the cashier picked Moreno as the "most similar" to the armed man's companion. Granillo was subsequently indicted and arrested.
¶4 Before trial, Granillo moved to suppress the identification and preclude the cashier from identifying him during trial. The court held an evidentiary hearing on the matter, and denied the motion from the bench, explaining "there was nothing that was unduly suggestive about the way the line-up was presented to the witness," and finding in a written minute entry that although "there is certainly fodder for cross-examination of the witness in identifying the defendant, the identification is not unreliable. The witness stated that she saw his face and gave a good description of his
physical characteristics, which also indicates that she was paying attention and that her description is reliable."
¶5 At trial, the detective who administered the lineup testified that the cashier had picked the photograph of Granillo "as looking the closest as[,] I don't remember the exact words, when we were leaving she said that one was the one that looked most similar, I believe it was." The cashier herself testified that she "wasn't sure on the picture," but the "features looked familiar," and that she was "pretty sure" the man in the photograph she had identified was the perpetrator of the robbery. When pressed, she clarified she was "about 100 percent sure" that the man in the photograph was the perpetrator. She then identified Granillo in court. On cross-examination, Granillo's trial counsel attempted to discredit the identification.
¶6 Granillo was convicted and sentenced as described above. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶7 Granillo's sole argument on appeal is that the court erred in denying his motion to suppress the out-of-court identification and preclude the cashier from identifying him in court. He maintains the initial identification was made seventy-seven days after the robbery and was thus unreliable. "We review the fairness and reliability of a challenged identification for clear abuse of discretion." State v. Lehr, 201 Ariz. 509, ¶ 46 (2002). Additionally, "[w]e consider only the evidence presented at the suppression hearing and defer to the trial court's factual findings unless clearly erroneous, but we review de novo the 'ultimate question' of the constitutionality of a pretrial identification." State v. Goudeau, 239 Ariz. 421, ¶ 103 (2016).
¶8 "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." Lehr, 201 Ariz. 509, ¶ 46. "[C]onvictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 196-97 (1972), quoting Simmons v. United States, 390 U.S. 377, 384 (1968).
¶9 We apply a two-part test to determine the admissibility of pretrial identification: "(1) whether the method or procedure used was unduly suggestive, and (2) even if unduly suggestive, whether it led to a substantial likelihood of misidentification." Lehr, 201 Ariz. 509, ¶ 46. However, because "independent reliability is not a constitutionally required condition of admissibility," if impermissibly suggestive procedures are not employed, "the reliability of the identification is simply a question for the jury." United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994), quoting Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986); accord State v. Taylor, 27 Ariz. App. 330, 333 (1976); see also Lehr, 201 Ariz. 509, ¶ 24 ("It is a basic maxim that judges determine admissibility of evidence and juries decide what weight to give it."). The state has the burden of proving by clear and convincing evidence that the circumstances surrounding the pretrial identification were not unduly suggestive. State v. Dessureault, 104 Ariz. 380, 384 (1969).
¶10 In the instant case the state carried its burden. The evidence presented to the trial court at the evidentiary hearing established that the case detective interviewed the cashier on January 14, 2015, less than two weeks after the incident. The cashier provided a physical description of Granillo, stating that he was a light-skinned Hispanic male, standing between 5'10'' and 5'11'', and weighing between 180 and 190 pounds. She also told the detective that she remembered seeing Granillo's face when he entered the store, and still images from the store's security camera demonstrated the cashier had an opportunity to make that observation.
¶11 Two months later, after the detective had identified Granillo as a potential suspect, she prepared the photographic lineup and met with the cashier. Before showing the cashier the lineup, the detective gave her the following admonition:
Photos will be shown to you one at a time. You will be asked if you recognize anyone. If you [identify] anyone during the procedure, you will continue to be shown the rest of the photos in the line-up. Photographs will not be shown to you in any particular order. You should take as much time as you need to look at each photo as the person who committed the crime may or may not be included in this lineup. I do not know the order in which the photos will be shown. Keep in mind that things like hairstyles, beards, and mustaches can be easily changed and that complexion colors may look slightly
different in photographs. So, in other words, I don't know how old these photos are. So, if [they] had a bushier mustache or no mustache the day of the thing . . . they may have shaved it off in these. The complexion might be different because of the lighting where the picture was taken was bright. . . . You do not have to make an identification. This procedure is important to the investigation, and the investigation will continue whether or not you identify anyone. . . . Do you understand these instructions?
The cashier affirmed that she understood, and the detective showed her a sequential series of six photographs, all of Hispanic males of similar age, with similar haircuts and similar facial hair. See State v. Gonzales, 181 Ariz. 502, 509 (1995) ("no requirement that the accused be surrounded by nearly identical persons"). When the cashier was shown Granillo's picture she identified him, and initialed his photograph.
¶12 Nothing in the lineup procedure or method was unduly suggestive. Therefore, the trial court did not abuse its discretion in denying Granillo's motion to suppress and our inquiry is at its end. See Taylor, 27 Ariz. App. at 333.
Disposition
¶13 For the foregoing reasons, Granillo's convictions and sentences are affirmed.