State v. Hollingsworth

STATE OF ARIZONA, Appellee, v. CURTIS BENJAMIN HOLLINGSWORTH, Appellant.

No. 1 CA-CR 12-0684

ARIZONA COURT OF APPEALS DIVISION ONE

March 3, 2016

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Yavapai County

No. P1300CR201101229

The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Michael O'Toole

Counsel for Appellee

Yavapai County Public Defender's Office, Prescott

By Robert K. Gundacker

Counsel for Appellant

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Peter B. Swann joined.

PORTLEY, Judge:

¶1 Curtis Benjamin Hollingsworth appeals his conviction and sentencing for kidnapping. In this case, we must resolve two issues. First, did the trial court violate Hollingsworth's right to be free from double jeopardy by allowing him to be retried after the prosecutor's pretrial and trial conduct caused a mistrial? Second, did the prosecutor's misconduct in the second trial warrant reversal? For the following reasons, we affirm.

FACTUAL¹ AND PROCEDURAL BACKGROUND

¶2 While driving his Buick in Cordes Lakes in December 2011, Hollingsworth followed the victim, a seventeen-year-old girl taking an evening walk. When the victim realized she was being followed, she ran and thought she was safe when she saw the Buick parked next to a store. But as she walked past a church parking lot, the Buick came towards her and, before she could run, Hollingsworth opened the driver's side door, grabbed her right wrist and told her to "[g]et in my car." Although he grabbed her hard enough to leave marks on her wrist, she broke free and ran into the front yard of a nearby house. Hollingsworth drove slowly by the front of the house, but sped away after the victim yelled at him.

¶3 The victim ran home, told her mother about the incident, and her mother called 9-1-1. The victim gave the deputy sheriff a detailed description of the Buick, including its license plate number. She also told the deputy that she saw the driver, and described the shirt he was wearing as either "yellow or cream-colored" with "dark stripes going down vertically," and told the deputy that the driver had a beer belly.

¶4 The sheriff's office quickly traced the license plate to Hollingsworth, and a deputy went to Hollingsworth's house. The deputy saw a Buick that matched the description and the license plate number given by the victim parked in front of Hollingsworth's house. He touched the car, and the front grille area felt warm, which indicated that the car had been driven recently. Hollingsworth answered the front door wearing a shirt that matched the description of the shirt given by the victim. After getting a warrant, the deputies searched Hollingsworth's car, and found a box of condoms in the glove compartment.

I. First Trial

¶5 Hollingsworth was arrested, charged and the case proceeded to trial. Although all the police reports and discovery materials indicated that the victim said she could not see the driver's face, the prosecutor asked, "Is that man who was driving in the vehicle in the courtroom today?" The victim affirmatively identified Hollingsworth. Then, over objection, the prosecutor introduced Exhibit 170, a picture of Hollingsworth in the shirt when he was arrested, and Exhibit 171, a photograph of an officer holding the shirt Hollingsworth was wearing when he was arrested.

¶6 During the cross-examination of the victim, the following exchange occurred:

Defense Counsel: And all you could see was a cream-colored shirt with dark stripes?

Victim: (Nodding head affirmatively.)

Defense Counsel: Yes?

Victim: Yes.

Defense Counsel: And you could not see his face.

Victim: No.

Defense Counsel: The officers never did a photo lineup with you, did they?

Victim: No.

Defense Counsel: So when you identified Mr. Hollingsworth earlier, you're not sure that's him.

Victim: They showed me a picture afterwards.

Defense Counsel: Who showed you a picture?

Victim: They showed me when I went to the courtroom. When I came in to talk to them, they asked me if this is the shirt and this is the guy inside the Buick.

Defense Counsel: The State did that, or the Victim Services?

Victim: I don't know.

Defense Counsel: [The prosecutor] or Julie . . . Judy?

Victim: They showed me the picture.

Defense Counsel: Who?

Victim: The people you just identified.

Defense Counsel: When did they show you this picture?

Victim: When I first talked to them.

Defense Counsel: And how long ago was that?

Victim: I don't remember.

[* * * *]

Victim: When I first met him.

Defense Counsel: And when was that?

Victim: Maybe a month ago.

Defense Counsel: When did Judy show you the picture?

Victim: They were together.

Defense Counsel: They were together a month ago. But on December 4th, 2011, you could not identify this person.

Victim: No.

(Emphasis added.)

¶7 On redirect, the victim said:

Prosecutor: What have I continuously told you?

Victim: Tell nothing but the truth.

Prosecutor: Have you been telling the truth?

Victim: Yes.

Prosecutor: [W]hen I showed you this photo, Exhibit 170, did I simply ask you if you recognized who that was?

Victim: Yes.

Prosecutor: Who is that?

Victim: That's Curtis.

Prosecutor: Do you have any doubts whatsoever, that this man right here—right here — You see him?

Victim: Yes.

Prosecutor:—is the man who grabbed you that night on December 4th?

Victim: No.

(Emphasis added.)

II. Motion for Mistrial

¶8 Hollingsworth moved to preclude the victim's pretrial and in-court identifications under State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). He argued that the pretrial identification made one month before trial was tainted and unduly suggestive, and the in-court identification should have been precluded because the State never disclosed that the victim could now identify Hollingsworth.

¶9 The court held a separate evidentiary hearing, and the parties stipulated that the court could review the transcript of the victim's trial testimony. Detective Marvin Cline, who interviewed Hollingsworth, testified about Hollingsworth's statements, which were similar to the victim's statements. The detective testified that Hollingsworth admitted that he had driven by a young female wearing clothes similar to the victim's apparel while he was in Cordes Lakes earlier that evening. Hollingsworth explained, however, that the girl had been walking in the middle of the road, in his lane of travel, and that, when he slowed his vehicle down to pass her, the girl yelled at him something to the effect of, "Get out of here." He also said that she might be able "to identify him because he had slowed down to go by her."

¶10 After submitting the evidence, the prosecutor acknowledged that showing the victim a one-person photograph before trial would be a suggestive pretrial identification procedure. He argued, however, that in light of Neil v. Biggers, 409 U.S. 188, 198-99 (1972), the victim's identification of Hollingsworth should not be precluded given her detailed description of Hollingsworth's vehicle, license plate number, and shirt.

¶11 Hollingsworth then orally amended his Dessureault motion to request a mistrial or dismissal, and argued that the prosecutor admitted showing the victim a photograph of Hollingsworth wearing the shirt and, on redirect, admitted that he showed the victim the picture about a month before trial. Hollingsworth also argued that not only was the victim's identification tainted, but that none of the information had been providedbefore trial; as a result, the conduct amounted to prosecutorial misconduct and violated his right to a fair trial.

¶12 The court recognized that before trial the victim "could not identify the [attacker's] face or hair color," but at trial the victim was "one hundred percent positive that [Hollingsworth] was her attacker," and the court noted there was no testimony explaining why the victim was suddenly sure Hollingsworth was the attacker. After considering the evidence, including the length of time between the crime, the identification, and the victim's testimony, the court granted a mistrial because "the photo shown to the victim prior to the trial was unduly suggestive."

III. Motion to Dismiss for Double Jeopardy and Vindictive Prosecution

¶13 Before the second trial, and citing Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984), Hollingsworth moved to dismiss the case with prejudice due to prosecutorial misconduct and due process violations. He argued that the prosecutor had either "knowingly and intentionally tampered with his primary witness" or acted with indifference to the danger of a mistrial or reversal to obtain a tactical advantage and a conviction. He also argued that the State's allegations of aggravating factors in the second trial violated due process as a vindictive prosecution.

¶14 In response, the State noted that in the meeting before the first trial the victim had said that she would not forget Hollingsworth's face. Then, when reviewing trial exhibits with the victim, the prosecutor showed her Exhibit 170, the photograph of Hollingsworth wearing the shirt. The prosecutor asserted that although he made a mistake by showing the victim the photograph, he did not have an improper purpose or intend to act improperly. The State also argued that the mistrial and the court's preclusion of the pretrial and in-court identifications were sufficient sanctions. The State also mentioned the victim told the prosecutor after the mistrial, and for the first time, that she had searched the internet before the first trial looking for Hollingsworth, and found information about him, including his photograph and the fact that he was a level three sex offender.

¶15 The trial court held an evidentiary hearing. After the hearing, the trial court denied the motion to dismiss. Although the court found that the prosecutor's conduct was the basis for the...