State v. Hernandez

1

The State of Arizona, Appellee, v. Pablo Isaac Hernandez, Appellant.

No. 2 CA-CR 2018-0042

Court of Appeals of Arizona, Second Division

January 21, 2022

Not For Publication See Ariz.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. CR20161916001 The Honorable Michael J. Butler, Judge

Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Michelle Hogan and Andrew Stuart Reilly, Assistant Attorneys General, Phoenix Counsel for Appellee

Joel Feinman, Pima County Public Defender By Michael J. Miller and David J. Euchner, Assistant Public Defenders, Tucson Counsel for Appellant

Vice Chief Judge Staring authored the decision of the Court, in which Judge Brearcliffe specially concurred, and Judge Eckerstrom concurred in part and dissented in part.

MEMORANDUM DECISION

STARING, Vice Chief Judge

¶1 This case comes to us on remand from our supreme court. State v. Hernandez, 250 Ariz. 28, ¶ 25 (2020) vacating State v. Hernandez, 246 Ariz. 543 (App. 2019). The only issue before us is whether the trial court erroneously precluded testimony about eyewitness identification procedure. See id. We affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Hernandez. See State v. Felix, 237 Ariz 280, ¶ 30 (App. 2015). On March 31, 2016, Pima County Sheriff's Deputy Michael Turner was driving a marked unit when a car ran a stop sign, entered his lane, and caused him to swerve to avoid a collision. At this time, Turner "locked eyes" with the car's driver for "a second to two seconds." He later testified the driver's face was "a face that [he] would never forget."

¶3 Deputy Turner attempted a traffic stop. The car did not stop, however, resulting in a pursuit that eventually ended at an apartment complex, where the driver and two other occupants of the car fled on foot. Turner saw the driver's profile as he fled and within minutes identified the driver as Hernandez based on a photograph bearing his name. Using the computer in his patrol unit to view another photograph of Hernandez, Turner again confirmed the driver was Hernandez.

¶4 Before trial, Hernandez filed a motion to suppress evidence of Deputy Turner's pretrial identification, arguing the identification procedure had been unduly suggestive and the identification, if admitted, would be more prejudicial than probative under Rule 403, Ariz. R. Evid. He also moved to preclude Turner from making an identification at trial. The trial court denied the motions, finding the pretrial identification reliable. Hernandez also requested a Willits instruction^[1] based on the state's failure to collect DNA and fingerprint evidence from the car before releasing it to the registered owner. The court denied the motion, finding no loss or destruction of evidence, and also finding that, even had such evidence been discovered and preserved, it would have been "neutral" in terms of its capacity to exculpate or inculpate Hernandez.

¶5 At trial, the state moved in limine to preclude Hernandez from calling a detective "to testify that it is his personal opinion that photo identification should always involve a six-pack line-up of photographs" and that "fingerprint[s] and DNA should always be collected."^[2] The trial court granted the motion as to testimony regarding eyewitness identification procedure, reasoning that "it would have been impossible to have a six-person lineup." The court denied the motion as to the fingerprint and DNA evidence, allowing the detective's testimony.

¶6 Hernandez was convicted of fleeing from law enforcement and sentenced to three years' imprisonment. On appeal, he challenged his conviction and sentence, arguing the trial court had erred in denying his motion to suppress and request for a Willits instruction, as well as in precluding the testimony on eyewitness identification procedure. We affirmed the court's ruling that the pretrial identification was reliable but ultimately reversed and remanded the case for a new trial based on our conclusion that Hernandez "was entitled to a Willits instruction as to the state's failure to preserve any fingerprint and DNA evidence in the car." Hernandez, 246 Ariz. 543, ¶¶ 12, 21, 22. Given our disposition, we did not address Hernandez's arguments related to the state's motion in limine. Id. n.7.

¶7 The state subsequently petitioned our supreme court for review. The court granted the petition and addressed only the Willits issue. Hernandez, 250 Ariz. 28, ¶ 1. Concluding "the trial court did not abuse its discretion in denying Hernandez's request for a Willits instruction," the court vacated our decision and remanded the case to this court, instructing us to consider the issue of "whether Hernandez is entitled to relief based on his argument that the trial court erroneously precluded evidence," which we had previously declined to address. Id. ¶ 25.

Discussion

¶8 Hernandez argues "the trial court erred when it precluded [the detective] from testifying based on his training and experience that presenting a 'six pack' of photographs to a witness is better procedure [and] less likely to produce inaccurate identification . . . than using a single picture." "We review a trial court's ruling on a motion in limine for an abuse of discretion ." State v. Gamez, 227 Ariz. 445, ¶ 25 (App. 2011).

¶9 If an objection to an alleged error was properly preserved, we consider it under the harmless error standard; otherwise, we review for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 18-19 (2005). "Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence." Id. ¶ 18. On the other hand, "[a] defendant establishes fundamental error by showing that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). Fundamental error under the first or second prong requires the defendant to demonstrate prejudice, meaning that "without the fundamental error, 'a reasonable jury . . . could have reached a different [verdict].'" State v. Murray, 250 Ariz. 543, ¶ 14 (2021) (quoting Escalante, 245 Ariz. 135, ¶ 29).

¶10 Evidence presented at trial is generally limited to that which is relevant, meaning it has any tendency to make a fact of consequence more or less probable. Ariz. R. Evid. 401, 402; see State v. Togar, 248 Ariz. 567, ¶ 13 (App. 2020) ("Th[e] standard of relevance is not particularly high." (quoting State v. Oliver, 158 Ariz. 22, 28 (1988))). Further, Rule 701, Ariz. R. Evid., limits opinion testimony of non-experts to that which is "rationally based on the witness's perception[, ] . . . helpful to clearly understanding the witness's testimony or to determining a fact in issue[, ] and . . . not based on scientific, technical, or other specialized knowledge." Rule 702, Ariz. R. Evid., on the other hand, allows individuals qualified as experts to "testify in the form of an opinion" if the testimony meets certain requirements, including that it "will help the trier of fact to understand the evidence or to determine a fact in issue." These requirements are meant to "ensure that a fact-finder is presented with reliable and relevant evidence." State v. Bernstein, 237 Ariz. 226, ¶ 14 (2015) (quoting State v. Langill, 945 A.2d 1, 10 (N.H. 2008)).

¶11 Before trial, Hernandez filed "additional" disclosure pursuant to Rule 15, Ariz. R. Crim. P., listing Tucson Police Department Detective Daniel Deloria as a witness.^[3] During trial, the state filed its motion in limine, claiming Deloria had stated in his interview that "he was not involved in the investigation regarding this case" and Hernandez sought "to call [him] to testify that it is his personal opinion that photo identification should always involve a six-pack line-up of photographs." The state went on to argue that because the trial court had already determined the identification was not unduly suggestive, Deloria's testimony would have been irrelevant and, in any event, "unnecessarily cumulative" given Hernandez's cross-examination of Turner related to the identification.

¶12 Hernandez argued that the motion in limine was "untimely" and that the proposed testimony would have been relevant for the jury "to comprehend and know what could have been done in a different situation."^[4] The trial court ultimately ruled:

I am going to allow the motion but I'm going to-I think any questions regarding the lineup, I think that's dealt with in my previous motion. Whether or not it's a suggestive lineup, then I think you are talking about policies. I think I ruled under the circumstances it would have been impossible to have a six-person lineup, and I think a lineup as it relates to an officer is a different circumstance. So I'm going to grant the motion as to that . . . .

The court further explained: "I think it gets too confusing for the jury when you are talking about whether or not it's a suggestive lineup."

¶13 On appeal, Hernandez first argues the proposed testimony would have been admissible as "contrary evidence" to the pretrial identification, relying on State v Rojo-Valenzuela, 237 Ariz. 448, ¶ 11 (2015) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)). He also claims Detective Deloria was qualified under Rule 702, and thus, he was permitted to testify as a "cold expert." Hernandez further asserts the alleged error...