Opinion
No. 2 CA-CR 2017-0170
10-05-2018
THE STATE OF ARIZONA, Appellee, v. GIL GAXIOLA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel By Gracynthia Claw, Assistant Attorney General, Phoenix Counsel for Appellee Harriette P. Levitt, 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NOT FOR PUBLICATION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 Cochise County
No. CR201400022
The Honorable Wallace R. Hoggatt, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
By Joseph T. Maziarz, Chief Counsel
By Gracynthia Claw, Assistant Attorney General, Phoenix
Counsel for Appellee Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Gil Gaxiola appeals from his convictions for attempted first-degree murder, armed robbery, three counts of aggravated assault, kidnapping, and theft of means of transportation. The trial court sentenced Gaxiola to a combination of concurrent and consecutive prison terms prison terms totaling 76 years. We affirm.
After the jury returned its verdicts, Count 2 (attempted second-degree murder) was dismissed.
Issue
¶2 On appeal, Gaxiola contends the trial court erred by denying his motion in limine to both preclude the victim's in-court identification and suppress evidence of her pretrial identification of him as her assailant. The state contends the court properly denied the motion in limine. The issue is whether the victim's pretrial identification of Gaxiola was the result of state action and, if not, whether it was otherwise inadmissible under Rules 402, 403, and 602, Ariz. R. Evid.
Factual and Procedural History
¶3 At the hearing on Gaxiola's motion in limine, both parties relied upon the statement of facts in Gaxiola's motion, avowals of counsel, and a single offered documentary exhibit. In their briefing, the parties cite to trial testimony in support of their arguments. However, the record does not show that Gaxiola re-urged his motion in light of any evidence or testimony adduced at trial. Because a ruling on a motion to suppress an identification is reviewed based on the evidence presented to the court at the time of its challenged ruling, we are limited to the facts as presented to the court at the hearing on the motion in limine. See State v. Moore, 222 Ariz. 1, ¶ 17 (2009); see also State v. Dessureault, 104 Ariz. 380, 384 (1969) (hearing must be held immediately upon challenge to identification with state bearing burden of proof by clear and convincing evidence).
¶4 The victim, K.G., worked as a National Park Service maintenance worker at Chiricahua National Monument. In August 2013, she was found in the women's restroom, unconscious and bleeding with a head injury. Her maintenance truck was also missing. K.G.'s truck was found in Douglas the evening of her attack. Inside the truck were a drinking straw, a pair of pants, and a handkerchief. DNA testing of those items resulted in a match with Gaxiola's DNA. DNA from a blood spot on the pants matched K.G.'s DNA.
¶5 During her hospital stay for treatment of her injuries, K.G. was not able to recall information about the attack. After her release, police did not show her a photo array containing Gaxiola's photo, concerned it would implant a false memory. In a May 2014 media interview, K.G. said she briefly saw her assailant's face. A law enforcement officer, who was present during the interview, asked K.G. if she would be able to identify her attacker. K.G. said she had seen his face in the newspaper and recognized him.
¶6 In July 2016, Gaxiola filed his motion in limine. He sought to suppress evidence of K.G.'s pretrial identification of Gaxiola as her assailant because it only occurred after she saw his photograph in the newspaper, and to preclude any in-court identification she might make because it resulted from that unduly suggestive pretrial identification. Gaxiola asserted that the circumstances of these identifications violated his due process rights, and that the evidence, being unreliable and unduly prejudicial, was inadmissible under Rules 402, 403, and 602, Ariz. R. Evid. Gaxiola also requested an evidentiary hearing on the reliability of K.G.'s identification pursuant to Neil v. Biggers, 409 U.S. 188 (1972) and Dessureault, 104 Ariz. 380.
¶7 Following the hearing, the trial court denied Gaxiola's motion on due process grounds, finding that K.G.'s pretrial identification was not the result of state action and therefore not a violation of Gaxiola's due process rights. Further, because that identification was not the result of state action, the court denied Gaxiola's request for an evidentiary hearing on the reliability of the identification. The court concluded that any determination of the reliability of K.G.'s identifications was for the jury. The court also denied Gaxiola's motion on Rule 602 grounds, but did not explicitly address the Rule 402 or 403 grounds.
¶8 A jury convicted Gaxiola and the trial court sentenced him as described above. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1).
Analysis
¶9 On appeal, Gaxiola argues the trial court erred by failing to suppress K.G.'s pretrial identification and to preclude her in-court identification on federal due process grounds. He also argues that the identifications should have been excluded under Rules 402, 403, and 602, Ariz. R. Evid. We review rulings on pretrial identifications for abuse of discretion, and "defer to a trial court's factual findings that are supported by the record and are not clearly erroneous." State v. Moore, 222 Ariz. 1, ¶ 17 (2009). "The ultimate question of the constitutionality of a pretrial identification is, however, a mixed question of law and fact," which this court reviews de novo. Id.
Gaxiola abandoned his claims, raised below, that the identifications violated his due process rights under the Arizona Constitution. State v. Moody, 208 Ariz. 424, n.9 (2004) ("must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim."). --------
Due Process
¶10 Gaxiola argues that, because the newspaper could have obtained Gaxiola's photograph and the details of his arrest only from the police, K.G.'s pretrial identification was the result of state action, and, because it was unduly suggestive, it violated his due process rights under the Fourteenth Amendment to the United States Constitution. The Due Process Clause of the Fourteenth Amendment requires the state conduct pretrial identification procedures in a way "that is fundamentally fair and secures the suspect's right to a fair trial." State v. Lehr, 201 Ariz. 509, ¶ 46 (2002). "[U]nduly suggestive" identifications which lead to a "substantial likelihood of misidentification" are unreliable and therefore inadmissible. Id.
¶11 An identification only implicates a defendant's due process rights, however, where the identification is the result of state action: "the due process clause does not preclude every identification that is arguably unreliable; it precludes identification testimony procured by the state through unduly suggestive pretrial procedures." State v. Williams, 166 Ariz. 132, 137 (1987). The state must bear "sufficient responsibility for the suggestive pretrial identification to trigger due process protection." Id. Though state action for due process claims encompasses not only traditional law enforcement activities, but also action by the courts, legislature, and other government officials, In re Timothy C., 194 Ariz. 159, ¶ 14 (App. 1998), it does not encompass acts of private parties. State v. Sharp, 193 Ariz. 414, ¶ 19 (1999).
¶12 In the context of identifications, in State v. Prion, our supreme court found there was no state action where an article about the defendant with an accompanying photograph was published in a local newspaper. 203 Ariz. 157, ¶ 15 (2002). In that case, Prion was convicted and sentenced to death for murder. Id. ¶ 1. A witness, who knew the victim, saw her with a man the night of her disappearance. Id. ¶ 12. When police showed the witness photographs of both the victim and Prion, he was unable to identify Prion. Id. ¶ 3. Seventeen months later, the witness saw a photograph of Prion on the cover of a local weekly newspaper, which also published Prion's name, date of birth, and that he was incarcerated. Id. ¶ 13. It labeled Prion as the prime suspect in the murder. Id. The witness then identified Prion as the man he saw with the victim the night she disappeared. Id. As our supreme court noted on review, the article and photograph were published in a private newspaper, the article was written by a freelance reporter, not a law enforcement employee, and, although the writer had some contact with law enforcement, she was not an agent of law enforcement or of the prosecution and did not have direct contact with or the cooperation of the assigned detective. Id. ¶ 15. The court concluded there was no state action that resulted in the pretrial identification. Id.
¶13 In State v. Goudeau, a number of witnesses identified the defendant after they variously saw the defendant's photograph, arrest video, and composite sketch, each of which law enforcement disseminated to the media. 239 Ariz. 421, ¶¶ 134-35 (2016). Our supreme court determined "even if the media coverage played a role in the victims' identifications . . . the State was not sufficiently responsible for the coverage[.]" Id. ¶ 135. Another witness identified the defendant after having seen him in pretrial court proceedings. Id. ¶ 136. Similarly, the court determined such circumstances did not result from conduct of the state. Id. ¶¶ 136-37. In each case, because state action was not responsible for any suggestiveness in the procedure, it did not implicate the defendant's due process rights. Id. ¶ 141.
¶14 As acknowledged in Prion and Goudeau, in the absence of state action, the trial court need not make a preliminary determination of reliability of the identification. Goudeau, 239 Ariz. 421, ¶ 131; Prion, 203 Ariz. 157, ¶ 15 ("There is no need to perform a Biggers analysis when the identification is not the result of state action."); see also Perry v. New Hampshire, 565 U.S. 228, 248 (2010) (absent state action "the Due Process clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification."). "[R]eliability is sufficiently tested 'through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions . . . and the requirement that guilt be proved beyond a reasonable doubt.'" Goudeau, 239 Ariz. 421, ¶ 131 (quoting Perry, 565 U.S. at 233).
¶15 Here, as in Prion and Goudeau, the record does not show sufficient, if any, law enforcement, prosecutor, or other such state action responsible for K.G.'s exposure to the newspaper article and photograph. Certainly none was adduced and presented to the court below. Because there was no state action, any challenge to the identification evidence is not to be made to the court couched as a due process violation, but is instead to be made to the finder of fact through the normal mechanisms of the adversary process. Consequently, the trial court anticipated extensive cross-examination on the reliability of K.G.'s identification, noting that is "how our system is designed to deal with these matters." Because there was no state action, the court did not err in denying Gaxiola's motion in limine on due process grounds. Rules of Evidence 402, 403, and 602
¶16 As he did below, Gaxiola also argues the trial court should have precluded the identifications as irrelevant under Rule 402 and as unduly prejudicial under Rule 403, Ariz. R. Evid. The court did not explicitly rule on these grounds in denying the motion in limine. However, we presume trial judges know the law and apply it accordingly. State v. Moody, 208 Ariz. 424, ¶ 49 (2004).
¶17 Evidence is probative and thus relevant if it has some tendency to make a fact of consequence to the determination of the action more or less probable than it would be without the evidence. Ariz. R. Evid. 401. Relevant evidence is admissible unless its probative value is substantially outweighed by, among other things, a danger of unfair prejudice. Ariz. R. Evid. 402, 403. A trial court has broad discretion in balancing the probative value of evidence against its prejudicial effect. State v. Conner, 215 Ariz. 553, ¶ 39 (App. 2007).
¶18 K.G.'s pretrial identification, if credited by the jury, had an undeniable tendency to increase the likelihood that Gaxiola was her attacker. The identification is thus relevant under Rule 402. And, in the absence of any due process violation, Gaxiola has otherwise failed to demonstrate any prejudice that substantially outweighs the probative value of the identification evidence. The trial court did not err in denying Gaxiola's motion in limine under Rules 402 and 403.
¶19 Finally, Gaxiola argued below that because K.G. did not initially remember the details of her attack, she was not competent to testify pursuant to Arizona Rule of Evidence 602. The trial court rejected that argument. In pertinent part, Rule 602, Ariz. R. Evid., states that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony." Gaxiola's counsel said at the hearing that he expected K.G. to testify consistent with disclosure that "she has an idea from her own recollection as to the assault itself, what occurred and who committed the assault." Counsel also said he expected K.G. to testify that she "turned around and caught a brief glimpse of the face of her attacker and that that face was the picture that she saw in the newspaper." Such expected testimony, based as it is on a witness's personal recollection of perceived events, satisfies Rule 602. See State v. Ayala, 178 Ariz. 385, 387-88 (1994). The court did not err in denying Gaxiola's motion in limine under Rule 602.
Disposition
¶20 The trial court did not err in denying Gaxiola's motion in limine on either due process grounds or under Rules 402, 403, and 602, Ariz. R. Evid. Therefore, we affirm Gaxiola's convictions and sentences.