Opinion
No. 1 CA-CR 12-0310
02-04-2014
STATE OF ARIZONA, Appellee, v. LEANDRO ANDY MARTINEZ, Appellant.
Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Mikel P. Steinfeld Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR 2010-006085-001
The Honorable Peter C. Reinstein, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Mikel P. Steinfeld
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Margaret H. Downie joined. THOMPSON, Judge:
¶1 Leandro Andy Martinez appeals his convictions on one count of second-degree murder, two counts of attempted second-degree murder, and three counts of aggravated assault. Defendant argues the trial court erred by failing to remedy a disclosure violation and by admitting an unduly suggestive identification. For reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 After noticing a pickup truck stopped in front of his store, the owner of a convenience market went out to confront the two occupants. A store employee and A.B., a teenager who occasionally helped around the store, followed the owner outside. As the owner approached the truck, the passenger stepped out with a beer bottle in his hand. After a brief verbal exchange between the owner and the passenger, the passenger dropped the beer bottle, pulled out a handgun, and shot the owner three times in the chest, killing him. The employee attempted to run back into the store, but was shot in the right hip and left leg. A.B. was able to duck behind a nearby post to avoid being hit by shots fired towards him. The truck and shooter fled following the shooting.
¶3 During the investigation, A.B. provided the police with a description of the shooter and stated he would be able to identify the person if he saw him again. Approximately one year after the shooting, A.B. identified defendant from a photographic lineup as "the person who shot at them." In addition, defendant's DNA and one of his fingerprints were found on the beer bottle dropped by the shooter.
¶4 Defendant was charged with one count of second-degree murder, a class 1 felony and dangerous offense; two counts of attempted second-degree murder, each a class 2 felony and dangerous offense, and three counts of aggravated assault, each a class 3 felony and dangerous offense. The state further alleged that defendant had two historical prior felony convictions and committed the charged offenses while on release.
¶5 Upon trial to a jury, defendant was found guilty as charged on all counts. The jury additionally found the three aggravating circumstances alleged by the state to be proven. The trial court sentenced defendant as a repetitive offender to concurrent and consecutive aggravated prison terms totaling thirty-four years. Defendant timely appealed.
DISCUSSION
A. Disclosure Violation
¶6 A month before trial, the state disclosed information from the prosecutor's Officer Integrity database concerning D.T., the Surprise Police Department crime scene technician who impounded and swabbed the beer bottle dropped by the shooter. The "integrity file" on D.T. detailed departmental investigations regarding her violation of certain work rules. The violations involved the falsification of time cards and unexcused absences from work.
¶7 The day before trial, defendant moved for additional disclosures by the state regarding D.T. pursuant to Arizona Rule of Criminal Procedure 15.1 and Brady v. Maryland, 373 U.S. 83 (1963). In support of the motion, defendant provided the trial court with two newspaper articles reporting on an investigation into an alleged inappropriate sexual relationship between D.T. and a former assistant police chief. The newspaper articles referenced the work violations disclosed by the state in the integrity file and also mentioned that D.T.'s personnel file indicated she had been reprimanded in 2007 for operating a city vehicle while her license had been suspended as a result of unpaid traffic fines and had been counseled and reprimanded in 2009 and 2010 for neglect of duty and unsatisfactory performance for failing to complete several reports during ongoing criminal investigations. Based on the articles, defendant requested that the trial court conduct an in camera inspection of the personnel files for both D.T. and the former assistant police chief to determine whether the files should be disclosed by the state pursuant to Brady. The trial court denied the request, ruling there had been no showing that the alleged relationship between D.T. and the former assistant police chief could in anyway impact the outcome of his trial. The trial court further denied the motion to preclude the state from calling D.T. as a witness. D.T. thereafter testified at trial regarding her role in the shooting investigation and was questioned during direct and cross-examination about the matters disclosed by the state with respect to her falsified timecards and her untruthfulness about her unexcused absence from work.
¶8 Following the close of evidence, but before closing arguments, defendant informed the trial court he had obtained the personnel file for D.T. from the Surprise Police Department and that it contained information about additional investigations into other departmental policy violations by D.T. not included in the integrity file disclosed by the state. The additional policy violations included failures by D.T. to impound evidence and complete supplemental reports as well as an act of insubordination when counseled on her job performance. Defendant claimed that the state's failure to disclose the personnel file constituted a disclosure violation and moved for a mistrial and dismissal with prejudice. In the alternative, defendant requested that the trial court strike D.T.'s testimony and the fruit of her testimony, including the DNA evidence, or permit him to reopen his case and introduce the contents of the personnel file into evidence. After reviewing the personnel file, the trial court denied the motion for mistrial and the motion to strike D.T.'s testimony and the DNA evidence. The trial court further denied the request to reopen the case, ruling that the information in the personnel file was not relevant.
¶9 Defendant contends the state's failure to disclose the personnel file constitutes a Brady violation and that the trial court erred in not fashioning an appropriate remedy. Brady holds that criminal defendants have a due process right to timely disclosure of material exculpatory evidence. 373 U.S. at 87. To be material under Brady, undisclosed information must be admissible or capable of being used "to impeach a government witness." United States v. Price, 566 F.3d 900, 911-12 (9th Cir. 2009). We review evidentiary rulings of the trial court for abuse of discretion, but review legal and constitutional issues de novo. State v. Pandeli, 215 Ariz. 514, 522 ¶ 11, 161 P.3d 557, 565 (2007) (citations omitted).
¶10 Defendant argues that the personnel file should have been disclosed by the state because the information it contained would have been helpful to impeach D.T. Although the failure to disclose impeachment evidence may rise to the level of a Brady violation, United States v. Bagley, 473 U.S. 667, 676 (1985), the information in the personnel file not included in the integrity file disclosure was not admissible for impeachment purposes. The incidents included in the integrity file about the falsification of time cards and untruthfulness with respect to unexcused absences from work were proper subjects for cross-examination of D.T. because they are probative of her character for truthfulness. See Ariz. R. Evid. 608(b) (permitting inquiry on specific instances of conduct for purposes of attacking or supporting witness's credibility "if probative of truthfulness or untruthfulness"). In contrast, the other information in the personnel file about the alleged improper sexual relationship with the assistant police chief, the lack of compliance with police department policy in the handling of evidence in other cases and other acts of misconduct and insubordination would not be proper impeachment material under Rule 608(b) because it is not probative of veracity. State v. Prince, 160 Ariz. 268, 273, 772 P.2d 1121, 1126 (1989).
¶11 We further reject the argument that the incidents of poor work performance and disregard of policy by D.T. included in the personnel file were relevant because the fact that she had been investigated and punished for previous poor performance provided a motive for her to paint her conduct as compliant in the present case. The problem with this argument is that when D.T. testified at trial she had already left the employ of the police department. Hence, D.T. was no longer at any risk of departmental punishment regardless of her testimony about her job performance in this case. Nor would the information in the personnel file be admissible to prove similar misconduct by D.T. in the handling of the evidence in the instant case because such use would constitute improper character evidence. See Ariz. R. Evid. 404(b) (precluding admission of evidence of acts "to prove the character of a person in order to show action in conformity therewith.").
¶12 The trial court was correct in ruling that the undisclosed information in the personnel file would not affect the outcome of the trial because it was inadmissible and could not be used to impeach D.T. Accordingly, there was no error by the trial court in denying the motion for mistrial and other requests for relief because there was no Brady violation in the non-disclosure of the personnel file.
B. Unduly Suggestive Identification
¶13 Prior to trial, defendant requested a hearing on the admissibility of A.B.'s pretrial identification. At the conclusion of the hearing, the trial court ruled that the identification was admissible. Defendant challenges the trial court's ruling on appeal, claiming A.B.'s identification was the product of an unduly suggestive procedure. We review the trial court's decision for abuse of discretion. State v. Phillips, 202 Ariz. 427, 433, ¶ 19, 46 P.3d 1048, 1054 (2002).
¶14 A criminal defendant is entitled to have a pretrial identification procedure conducted in a fundamentally fair manner. State v. Nordstrom, 200 Ariz. 229, 241, ¶ 23, 25 P.3d 717, 729 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012). When the likelihood of misidentification exists, a defendant's right to due process is violated. Neil v. Biggers, 409 U.S. 188, 198 (1972). To have a pretrial identification suppressed on due process grounds, a defendant must prove that the circumstances surrounding the identification were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." State v. Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).
¶15 A.B. identified defendant from a photographic lineup shown to him by a police detective. The lineup was assembled after A.B. provided the detective with a nickname of the person A.B. said was the shooter. The detective researched the nickname, connected it with defendant, and included a photograph of defendant in the lineup. After being read the standard witness advisory by the detective, A.B. identified defendant as the shooter in about fifteen seconds of being shown the lineup and described his certainty as a "seven or eight" on a scale of ten.
¶16 No claim is made by defendant that the photographic lineup or the manner in which it was presented to A.B. was unduly suggestive. Instead, defendant contends the trial court should have found the identification to be unduly suggestive based on A.B.'s testimony that he felt pressured to provide a nickname for the shooter after the detective told him during a meeting the day before he made the identification, "You know who did this. If not, you had a part in this." According to defendant, this improper pressure by the detective resulted in A.B. looking at pictures on social media websites to find a person to accuse and then falsely identified him as the shooter.
¶17 We find no abuse of discretion by the trial court in admitting the pretrial identification by A.B. In addition to hearing contradictory testimony from A.B. and the detective, the trial court also had the opportunity to view an audio/video recording of the interaction between the detective and A.B. at the police station during which the detective was alleged to have pressured A.B. The recording evidences that, contrary to A.B.'s testimony at the hearing on the motion to suppress, the detective did not engage in any intimidation or other undue pressure tactics to have A.B. obtain the nickname for the shooter from other people in the neighborhood who knew him, and fully supports the trial court's finding that the pretrial identification was not tainted by this prior meeting between the detective and A.B. On this record, defendant has failed to meet his burden of proving that the pretrial identification was the result of an unduly suggestive procedure.
CONCLUSION
¶18 For the foregoing reasons, we affirm the convictions and sentences.