FILED BY CLERK MAR 30 2009 IN THE COURT OF APPEALS STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2007-0340 Appellee, ) DEPARTMENT A ) v. ) OPINION ) NATHAN ANDRES LEYVAS, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20064780
Honorable Howard Hantman, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson Tucson Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin Tucson Attorneys for Appellant
P E L A N D E R, Chief Judge.
¶1 After a jury trial, Nathan Leyvas was convicted of five counts of sexual assault
and two counts each of kidnapping, assault, and attempted armed robbery. The trial court sentenced him to consecutive and concurrent, presumptive prison terms totaling forty years.
On appeal, Leyvas contends the court erred by allowing a witness to identify him at trial
without first having held a Dessureault1 hearing and by denying his motion for judgment of
acquittal on the two attempted armed robbery charges. We affirm.
Background
¶2 “We view the facts and all reasonable inferences therefrom in the light most
favorable to upholding the verdicts.” State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914
(App. 1999). One evening in December 2006, the victims, two female college students, were
walking in a Tucson city park when a man riding a bicycle threatened them with a gun and
subsequently sexually assaulted both of them multiple times. At one point the women heard
the man open a wrapper, possibly containing a condom.
¶3 After the assaults, the man asked if either woman had any money. They said
no, and he then allowed them to walk away. When they realized he was no longer behind
them, they ran to a convenience store and called 911. Police took the victims for medical
examinations, but no male DNA 2 evidence was ever found. Both victims described their
assailant as a skinny Hispanic male in his early twenties who was wearing a gray sweatshirt
and gray beanie cap.
¶4 After Leyvas became a suspect, police searched his bedroom at his parent’s
house and found an air pistol, gray beanie, gray sweatshirt, and a condom. Police also
1 State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). 2 Deoxyribonucleic acid.
2 searched his girlfriend’s house and found the mountain bicycle that Leyvas had used on the
night of the assaults.
¶5 Leyvas’s defense at trial was mistaken identity. Neither of the two victims was
able to positively identify him as the assailant.3 But a female jogger, M., who twice that
night had passed by a man on a bicycle, identified Leyvas as the man she had seen at the park
on the night of the crimes. A few weeks before trial, and about seven months after the
crimes, a detective showed M. a six-person photographic lineup that included Leyvas’s
photograph. M. identified another man as the person she had seen at the park that night. In
a subsequent pretrial interview, the prosecutor told M. she had “identified the wrong person.”
¶6 Before trial, citing only Dessureault, Leyvas moved to preclude M. from
identifying him in court on the ground that any such identification would be tainted by the
prosecutor’s comment. After a brief discussion, and when Leyvas was unable to produce any
“analogous” case law, the trial court determined Dessureault did not apply “to this fact
situation” and allowed M. to identify Leyvas at trial. That identification occurred for the first
time on redirect examination and then again in response to questions by the jury, when M.
answered she was sure Leyvas was the man she had seen at the park. M. further testified she
had “[n]ot [been] very confident at all” when she previously had identified a different man
in the photographic lineup. She also identified the mountain bicycle found at Leyvas’s
3 One victim, who before trial had not been asked to identify the assailant from a photographic or live lineup, testified that Leyvas “match[ed] the description of the person” she had described to police. When the other victim was asked if she saw “anybody in the courtroom that [she] recognize[d] as being from that evening,” she said she did not know but did not “think so.”
3 girlfriend’s house as the one she had seen the man riding at the park and testified that a
recording of Leyvas’s voice was consistent with the voice “tone range” of the man who had
spoken to her while she jogged.
Discussion
I. In-court identification
¶7 Leyvas contends his due process rights were violated when the trial court
allowed M. to identify him in court without first having held a Dessureault hearing to
determine whether the pretrial identification procedure was unduly suggestive and, if so,
whether that would taint any proposed in-court identification by M. He acknowledges that
the pretrial photographic lineup, in which M. “identified a picture of another man,” was not
suggestive. Nonetheless, Leyvas argues, the prosecutor’s later telling M. “she had chosen
the wrong man’s photo” “was sufficient to trigger the Dessureault paradigm,” “requir[ing]
the trial court to make an initial determination whether the pretrial identification
circumstances were unduly suggestive.”
¶8 The state argues, as it did below, that Dessureault does not apply because M.
had failed to identify Leyvas in the pretrial photographic lineup. Similarly, in denying
Leyvas’s motion to preclude M. from identifying him at trial, the trial court accepted the
state’s argument that an allegedly “suggestive nonidentification” does not “fall[] under
Dess[u]reault.” We do not find Dessureault necessarily limited to situations in which an
allegedly suggestive pretrial identification of the defendant has occurred. See State v. Myers,
117 Ariz. 79, 83-84, 570 P.2d 1252, 1256-57 (1977) (after hearing at which victim addressed
4 circumstances surrounding his observation of offender at time of crime, victim’s
identification of defendant allowed at trial even though victim “had been unable to identify
the defendant in a photo lineup or in a live lineup” before trial and had selected another
person in the live lineup); cf. State v. Alexander, 108 Ariz. 556, 564, 503 P.2d 777, 785
(1972) (comments made to witnesses that they had “selected the wrong photo” in
photographic lineup one of multiple, relevant factors contributing to finding of “illegal,”
unduly suggestive pretrial identification procedure; witnesses eventually identified defendant
in second, pretrial photographic lineup, and Dessureault hearing held). But we find no
reversible error under the particular circumstances of this case.
¶9 We review the trial court’s denial of Leyvas’s motion to preclude M.’s in-court
identification for an abuse of discretion. See State v. Prion, 203 Ariz. 157, ¶ 14, 52 P.3d 189,
192 (2002). And, “[w]e review the fairness and reliability of a challenged identification for
clear abuse of discretion.” State v. Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d 1172, 1183 (2002).
But we review de novo the question whether a common law procedural rule with
constitutional underpinnings, such as that set forth in Dessureault, applies to a particular
factual scenario. See State v. Newell, 212 Ariz. 389, ¶¶ 27-28, 132 P.3d 833, 841 (2006)
(legal question whether Miranda v. Arizona, 384 U.S. 436 (1966), applies to specific facts
of case reviewed de novo); State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App.
2000) (due process claims reviewed de novo); cf. State v. Apelt, 176 Ariz. 349, 362, 861 P.2d
634, 647 (1993) (“We agree with the trial court that the identification in this case does not
come within the ambit of Dessureault.”).
5 ¶10 “The criminal defendant’s due process rights include the right to a fair
identification procedure.” State v. Nieto, 118 Ariz. 603, 605, 578 P.2d 1032, 1034 (App.
1978); see also State v. Brady, 145 Ariz. 520, 530, 703 P.2d 464, 474 (1985). “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, 38 P.3d at 1183. Even when “a
pretrial identification procedure is overly suggestive, however, [that] does not bar the
admission of an identification.” Id. “Instead, the question is whether the identification is
reliable in spite of any suggestiveness.” Id. “Thus, there is a two-part test for determining
admissibility: (1) whether the method or procedure used [in the pretrial procedures] was
unduly suggestive, and (2) even if unduly suggestive, whether it led to a substantial
likelihood of misidentification, i.e., whether it was reliable.” Id.; see also Manson v.
Brathwaite, 432 U.S. 98, 114 (1977).
¶11 In Dessureault, about nine hours after an armed robbery, the victim/witness
identified the defendant in a live lineup that included him and three others. 104 Ariz. at 382,
453 P.2d at 953. At trial, the victim again identified Dessureault as the robber. Id. Our
supreme court determined that the pretrial identification procedure was unduly suggestive
because Dessureault was the only person in the lineup who had a moustache and a beard, as
had the robber. Id. at 383, 453 P.2d at 954. Under the circumstances, the court held that,
“although the pretrial identification was unduly suggestive, the in-court identification had an
independent source other than the lineup.” Id. at 384, 453 P.2d at 955. Because the legally
6 flawed pretrial identification “was not conducive to irreparable mistaken identification,” and
because the victim’s “identification was positive and unequivocally made from the
defendant’s face,” the court found no reversible error. Id. at 385, 453 P.2d at 956.
¶12 Referring to situations in which “pretrial identifications” of defendants have
been made, id. at 383, 453 P.2d at 954, the court set forth the following “effective procedures
at the trial court level”:
First, if at the trial the proposed in-court identification is challenged, the trial judge must immediately hold a hearing in the absence of the jury to determine from clear and convincing evidence whether it contained unduly suggestive circumstances. In this the burden is on the prosecution to establish from all the circumstances surrounding the pretrial identification that it was not such as to be unduly suggestive.
Second, if the trial judge concludes that the circumstances of the pretrial identification were unduly suggestive or that the prosecution has failed to establish by clear and convincing evidence that they were not, then it is the prosecution’s burden to satisfy the trial judge from clear and convincing evidence that the proposed in-court identification is not tainted by the prior identification.
Third, if requested, the court must instruct the jury that before returning a verdict of guilty it must be satisfied beyond a reasonable doubt that the in-court identification was independent of the previous pretrial identification or if not derived from an independent source, it must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt.
Id. at 384, 453 P.2d at 955. Referring to those procedures as a “paradigm,” and based solely
on the prosecutor’s having told M. before trial that she had chosen the wrong man’s
7 photograph in the lineup, Leyvas argues “[t]he pretrial identification procedure in toto in this
case was certainly suggestive, triggering a Dessureault inquiry.” We disagree.
¶13 “The requirements of Dessureault are sequential,” triggered only if and when
a determination is made that a pretrial identification procedure was unduly suggestive. State
v. Harris, 23 Ariz. App. 358, 359, 533 P.2d 569, 570 (1975). As this court explained in
Harris:
[I]f the trial court finds that the pretrial identification was not unduly suggestive, it need not do any of the following: (a) [d]etermine whether an in-court identification was tainted; (b) instruct that the jury must be satisfied beyond a reasonable doubt that the in-court identification was independent; and (c) instruct that the jury must be satisfied beyond a reasonable doubt that the pretrial identification was fair.
Id. at 360, 533 P.2d at 571; see also State v. Taylor, 27 Ariz. App. 330, 333, 554 P.2d 926,
929 (1976) (when pretrial identification procedures not unduly suggestive, “there is no need
to determine whether the requirements of [Dessureault] were met”) (citation omitted).
¶14 For the reasons set forth below, we agree with the trial court that Dessureault
does not apply to the particular situation presented here. Accordingly, we conclude the court
did not err in failing to conduct a pretrial Dessureault hearing or to follow the other
procedural steps outlined in that case.4
4 Though not dispositive, we note Leyvas never asked the trial court to hold a pretrial hearing to probe any of the issues he now raises. His cryptic motion to preclude had only one aim—to prevent M. from identifying him at trial because of the taint allegedly caused by the prosecutor’s earlier comment to her. When, as here, a factual scenario does not fall squarely within Dessureault, a defendant should specifically request a hearing, explaining why it is needed and what relevant topics will be explored. See State v. Reid, 114 Ariz. 16, 25-26, 559 P.2d 136, 145-46 (1976) (trial court should have held pretrial evidentiary hearing,
8 ¶15 First, as noted above, the court in Dessureault stated that, “if at the trial the
proposed in-court identification is challenged, the trial judge must immediately hold a
hearing in the absence of the jury to determine from clear and convincing evidence whether
it contained unduly suggestive circumstances.” 104 Ariz. at 384, 453 P.2d at 955. But the
term “it” in that statement must have referred to a witness’s “pretrial identification,” and here
there was none. Id. Because M. did not identify Leyvas before trial and had not yet been
asked whether she could do so during trial, it is not at all clear what purpose would have been
served by conducting a Dessureault hearing. And, from a practical standpoint, such a
hearing, conducted in a vacuum, would not readily facilitate the trial court’s gauging whether
any proposed in-court identification of Leyvas by M. would somehow be tainted by the
prosecutor’s pretrial comment to her.
¶16 Second, the primary concerns addressed in Dessureault and its progeny, and
the mischief those cases seek to avoid, are not present here. Generally, “Dessureault deals
with fairness concerns that arise when a witness (often the victim) of a crime is confronted
specifically requested and fully explained by defense, to determine if witness’s identification of defendant at preliminary hearing tainted by pretrial procedures); McMillian v. State, 265 N.W.2d 553, 558 (Wis. 1978) (although defendant unsuccessfully objected to admission of in-court identification testimony, any right to Dessureault-type hearing was waived “since no request was made” for such hearing); cf. State v. Cartwright, 155 Ariz. 308, 311, 312, 746 P.2d 478, 481, 482 (1987) (no error in failing to include witness in pretrial Dessureault hearing when she first identified defendant on redirect examination at trial and had “never participated in a live line-up and never made a pre-trial identification of any type,” even though she might have been shown photographs before trial); State v. Dominguez, 192 Ariz. 464, ¶ 14, 967 P.2d 136, 140 (App. 1998) (no fundamental error in failure to give Dessureault jury instruction when trial court made no determination “that an out-of-court identification procedure was unduly suggestive” and when “defendant failed to request a Dessureault hearing”).
9 with a live or photographic lineup and asked whether the perpetrator is among them.” Apelt,
176 Ariz. at 362, 861 P.2d at 647. The primary concern arising from that scenario is that
“[u]nduly suggestive pretrial [identification] procedures may unfairly cause a witness to
misidentify the defendant, and then to repeat the misidentification at trial.” State v. Smith,
146 Ariz. 491, 496, 707 P.2d 289, 294 (1985); see also Simmons v. United States, 390 U.S.
377, 383-84 (1968) (“Regardless of how the initial misidentification comes about, the
witness thereafter is apt to retain in his memory the image of the photograph rather than of
the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom
identification.”). As the court in Smith stated, “The ‘very substantial likelihood of an
irreparable misidentification’ at trial deriving from such an unfair pretrial identification
procedure is a primary danger to be avoided.” 146 Ariz. at 496, 707 P.2d at 294, quoting
Simmons, 390 U.S. at 384; see also State v. Osorio, 187 Ariz. 579, 581, 931 P.2d 1089, 1091
(App. 1996); State v. Strong, 185 Ariz. 248, 250, 914 P.2d 1340, 1342 (App. 1995). Again,
because M. did not identify Leyvas before trial at all, through an unfair procedure or
otherwise, this case does not present the “primary danger” toward which the applicable
Arizona decisions are directed. Smith, 146 Ariz. at 496, 707 P.2d at 294.
¶17 Third, whether a witness may reliably make an “in-court identification of the
defendant, untainted by prior identification procedures, is preliminarily a question for the trial
court which will not be disturbed on appeal unless there is clear and manifest error.” Taylor,
27 Ariz. App. at 332, 554 P.2d at 928; see also Smith, 146 Ariz. at 497, 707 P.2d at 295;
Myers, 117 Ariz. at 84, 570 P.2d at 1257. Leyvas acknowledges “[t]he trial court apparently
10 determined that [M.’s] choice of a man other than [Leyvas] from the photo lineup was not
an unduly suggestive pretrial identification.” We find no “clear and manifest error” in that
implicit determination, which Leyvas does not directly challenge. Taylor, 27 Ariz. App. at
332, 554 P.2d at 928.
¶18 He argues, however, “the trial court failed to consider the key additional
circumstances on which [his] Dessureault motion was based”—the prosecutor’s having
informed M. “she had picked the wrong man from the [photographic] lineup.” But the court
was well aware of that fact when it denied Leyvas’s motion. And even though the trial court
did not expressly determine whether the prosecutor’s comment to M. rendered the pretrial
identification procedure unduly suggestive or otherwise unconstitutional, we conclude it did
not, based on the same, undisputed facts before that court. See State v. Money, 110 Ariz. 18,
21, 23, 514 P.2d 1014, 1017, 1019 (1973) (supreme court independently evaluated “‘totality
of the circumstances’ surrounding the identification procedure to determine whether the
lineup was unduly suggestive,” concluding it was not); Taylor, 27 Ariz. App. at 332, 333,
554 P.2d at 928, 929 (noting its “initial inquiry is to determine whether the [pretrial]
photographic lineup was unduly suggestive,” appellate court “determined” it was not).
¶19 As noted earlier, during a pretrial interview the prosecutor told M. she had
“identified the wrong person” in the photographic lineup shown to her about seven months
after the crime. But the record does not reflect that the prosecutor ever steered M. to the
“right person.” Cf. Alexander, 108 Ariz. at 564, 503 P.2d at 785 (unduly suggestive
procedure found when police showed witnesses multiple photographic lineups, detective told
11 witnesses they had first selected wrong photo, police artist drew facial hair onto photos of
defendant but no others, and detective later told witnesses they “had selected the ‘correct’
photo” in second lineup session). For example, the record does not suggest the prosecutor
showed or told M. which photograph in the lineup depicted Leyvas. Cf. United States v.
Woolery, 735 F.2d 818, 821 (5th Cir. 1984) (“Though there is nothing improper in asking an
uncertain witness to look at a line-up a second time, it is unacceptable to do so in a way that
indicates to the witness whom he should select.”). Nor does the record suggest the
prosecutor, either before or during trial, informed M. that the person on trial, Leyvas, was the
perpetrator or the person she actually had seen at the park on the night of the crimes. In
addition, the record does not reflect how Leyvas’s appearance at trial compared to the
depiction of him in the photographic lineup.
¶20 Leyvas maintains, however, that the prosecutor’s having told M. before trial
she had selected “the wrong person” in the photographic lineup, after she had “affirmatively
identified someone other than [him],” “tainted as a matter of law” M.’s subsequent in-court
identification and “deprived him of due process” because M. “was then permitted to make
an identification at trial of the only person in the courtroom whose picture had been in that
photo lineup: [Leyvas].” Citing Simmons and Foster v. California, 394 U.S. 440 (1969),
Leyvas contends the prosecutor’s comment to M. rendered the pretrial identification
procedures unduly suggestive because it greatly increased the likelihood M. would recognize
Leyvas in court from the first photographic lineup and identify him as the man she had seen
in the park. But nothing in the record supports that hypothesis, and both cases on which
12 Leyvas relies involved a situation where the witness had positively identified the defendant
before trial.
¶21 In Foster, the witness finally identified the defendant in a second live lineup
after failing to identify him in a previous lineup and one-to-one confrontation. Foster, 390
U.S. at 443. And the defendant was the only person who appeared in both lineups. Id.
Under those circumstances, the Supreme Court found the procedure impermissibly
suggestive because, “[i]n effect, the police repeatedly said to the witness, ‘This is the man.’”
Id. In Simmons, all witnesses identified the defendant in pretrial photographic lineups. 390
U.S. at 382.
¶22 Here, in contrast, M. did not identify Leyvas in the pretrial procedure and was
not asked to identify him again before trial. Therefore, the main concern addressed in Foster
and Simmons—that law enforcement officers will unduly influence a witness in making a
mistaken identification and then repeating that misidentification at trial—is not present here.
See Smith, 146 Ariz. at 496, 707 P.2d at 294.
¶23 In addition, although we do not condone, and indeed strongly discourage, the
practice of telling a witness before trial she chose the “wrong” person in a lineup, that is less
suggestive or problematic than informing her she made the “right” choice. See United States
v. Moskowitz, 581 F.2d 14, 20 (2d Cir. 1978). As the court in Moskowitz explained, that is
because informing a witness of an incorrect choice “is far less likely to produce an
‘irreparable misidentification’ because it merely narrows the field from which the witness
will make a second selection, and it does not involve any improper reinforcement or
13 confirmation of the second selection itself.” Id. But see United States v. Jarvis, 560 F.2d
494, 500 (2d Cir. 1977) (informing witness of correctness or incorrectness of pretrial
identification might taint later identification so as to require reversal).
¶24 Similarly, our supreme court has expressed concern that informing a witness
he or she chose correctly from a lineup could “lessen or eliminate any doubt” the witness
might have had before the identification procedure. State v. Richie, 110 Ariz. 590, 593, 521
P.2d 1136, 1139 (1974); see also Money, 110 Ariz. at 23, 24, 514 P.2d at 1019, 1020 (police
officer’s informing victims they had chosen from live lineup “the owner of the car which had
been used by their three assailants” might have made them more certain of their
identifications but did not unfairly taint their in-court identifications). In Richie, the victim
identified three robbers in a photographic lineup. 110 Ariz. at 591, 521 P.2d at 1137. An
officer then told the victim before the preliminary hearing that “he had chosen the correct
pictures and that two of the suspects were already in custody including the defendant.” Id.
The trial court denied the defendant’s motion to suppress the victim’s proposed in-court
identification, urged on the ground that the police officer’s comment tainted the identification
process. Id. In affirming, our supreme court concluded, “where the lineup was not
suggestive in the first place, such subsequent comments cannot taint an initially fair
identification procedure or the in-court identification.” Id. at 593, 521 P.2d at 1139; see also
State v. McDonald, 111 Ariz. 159, 164, 526 P.2d 698, 703 (1974); Money, 110 Ariz. at 24,
514 P.2d at 1020; Taylor, 27 Ariz. App. at 333, 554 P.2d at 929. Again, in this case no such
14 suggestive or confirmatory comments were made to M. so as to reinforce any prior
identification or to naturally or inevitably lead her to identify Leyvas at trial.
¶25 We also find significant that M. only identified Leyvas on redirect examination,
after he had introduced the photographic lineup in evidence and questioned M. about her
prior inability to identify him in that lineup.5 Thus, her in-court identification essentially was
prompted by Leyvas’s own trial strategy and cross-examination. “The invited error doctrine
applies to situations where evidence adduced or comments made by one party make
otherwise irrelevant evidence relevant or require some response or rebuttal.” State v. Wilson,
185 Ariz. 254, 259, 914 P.2d 1346, 1351 (1995). When a party “open[s] the door” to later,
otherwise objectionable testimony, there is no error. State v. Garcia, 133 Ariz. 522, 526, 652
P.2d 1045, 1049 (1982). But when error is invited by opening the door, “the evidence or
response must be ‘pertinent’; that is, it must be specifically responsive to the invitation.”
Wilson, 185 Ariz. at 259, 914 P.2d at 1351.
¶26 Here, M. did not identify Leyvas on direct examination and was not asked to
do so. Therefore, nothing in the state’s direct examination of M. prompted the defense
inquiry into identification-related issues on cross-examination. By voluntarily and
strategically probing those issues, Leyvas opened the door to the state’s redirect examination,
which was “specifically responsive to the invitation.” Id. Accordingly, even if M.’s in-court
5 Leyvas failed to object to M.’s in-court identification at trial. But “where a motion in limine is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial.” State v. Burton, 144 Ariz. 248, 250, 697 P.2d 331, 333 (1985); see also State v. Reed, 114 Ariz. 16, 26, 559 P.2d 136, 146 (1976).
15 identification of Leyvas were otherwise objectionable, Leyvas invited any error in that
regard.
¶27 Because we find Dessureault inapplicable to the situation presented here, M.’s
inability to identify Leyvas before trial went to her credibility and the weight to be given her
testimony, not to the admissibility of her in-court identification. See Prion, 203 Ariz. 157,
¶ 18, 52 P.3d at 193; State v. McCall, 139 Ariz. 147, 155, 677 P.2d 920, 928 (1983); see also
Myers, 117 Ariz. at 84-85, 570 P.2d at 1257-58 (“‘[w]henever possible, the fact that
witnesses were previously unable to identify a defendant should properly go to the credibility
and not to the admissibility of subsequent positive in-court identifications’”), quoting People
v. Belenor, 246 N.W.2d 355, 357 (Mich. Ct. App. 1976) (alteration in Myers); Nieto, 118
Ariz. at 606, 578 P.2d at 1035.
¶28 We further note that identifications made for the first time in court generally
are not deemed unduly suggestive or impermissible. See Cartwright, 155 Ariz. at 311, 746
P.2d at 481 (witness not involved in pretrial identification procedure or Dessureault hearing
could nonetheless identify defendant for first time at trial); State v. Meeker, 143 Ariz. 256,
265, 693 P.2d 911, 920 (1984) (defendant’s sitting at defense table with sign that said
“defense” not unduly suggestive); Myers, 117 Ariz. at 84, 570 P.2d at 1257 (“The law does
not preclude a victim from identifying his attacker, presented alone, at a later time just
because the victim could not identify the attacker in a group earlier.”); State v. Brady, 16
Ariz. App. 393, 396, 493 P.2d 939, 942 (1972) (Dessureault’s lineup doctrine not extended
to in-court identifications); see also State v. Valenzuela, 722 F.2d 1431, 1432 (9th Cir. 1983).
16 This is because a witness who testifies in court is subject to thorough cross-examination
about the witness’s identification testimony. See Cartwright, 155 Ariz. at 311, 746 P.2d at
481 (no need for second Dessureault hearing when witness identified defendant for first time
at trial and was thoroughly cross-examined); see also Prion, 203 Ariz. 157, ¶ 17, 52 P.3d at
193.
¶29 Here, Leyvas thoroughly questioned M. about her mistaken identification in
the photographic lineup and how the prosecutor had later informed her that she had chosen
“the wrong person.” M. was examined and cross-examined about her level of awareness on
the night in question, how often and for how long she had observed the man on the bicycle,
and the discrepancies between her testimony and her earlier statement to the police. She
acknowledged that she had described the bicycle as a BMX type, not a mountain bicycle, and
that she had thought the man had been wearing a hooded sweatshirt, not a beanie cap. M.
also noted at trial that nine months had passed since the crime and that her memory at trial
was not as clear as it had been shortly after the incident. Any conflicts or other weaknesses
in her testimony were matters for the jury to consider. See State v. Nordstrom, 200 Ariz. 229,
¶ 27, 25 P.3d 717, 730 (2001); see also McCall, 139 Ariz. at 155, 677 P.2d at 928 (“a
witness’ previous inability to identify a defendant goes to the credibility of the witness, not
the admissibility of subsequent identifications”).
¶30 Leyvas also argues that, because the trial court erred in not “find[ing] the
Dessureault paradigm triggered on these facts, it did not proceed to the second Dessureault
step: requiring the State to prove by clear and convincing evidence that the suggestive
17 pretrial identification procedure did not taint the proposed in-court identification.” See ¶ 12,
supra. As Leyvas correctly notes, Dessureault’s “second step is accomplished using the
factors set forth in Neil v. Biggers, 409 U.S. 188, [199] . . . (1972).” See Lehr, 201 Ariz. 509,
¶ 48, 38 P.3d at 1183-84. However, because the trial court properly found Dessureault not
applicable and because the pretrial identification procedure here was not unduly suggestive,
we need not address whether M.’s in-court identification of Leyvas was reliable.6 See id.;
Smith, 146 Ariz. at 497, 707 P.2d at 295.
6 Leyvas maintains an appellate court should not evaluate in the first instance the factors listed in Biggers when, as here, the trial court did not hold a Dessureault hearing and, therefore, never required the state to prove by clear and convincing evidence that the in-court identification was untainted. See Dessureault, 104 Ariz. at 384, 453 P.2d at 955. We agree that in appropriate circumstances—when a Dessureault hearing is required and conducted and then proceeds to the second step—it is highly preferable for the trial court to rule on the issues of taint and reliability of a proposed in-court identification after evaluating the factors in Biggers. See Smith, 146 Ariz. at 497, 707 P.2d at 295; Myers, 117 Ariz. at 84, 570 P.2d at 1257. But if the appellate court can determine “from the record on clear and convincing evidence that the in-court identification was not tainted by the prior identification procedures . . . the conviction will be affirmed.” Dessureault, 104 Ariz. at 384, 453 P.2d at 955. Other appellate courts have examined the Biggers factors, based on the trial court record, when considering whether an in-court identification was reliable under the totality of the circumstances. See Lehr, 201 Ariz. 509, ¶¶ 48-52, 38 P.3d at 1184; Nieto, 118 Ariz. at 605- 06, 578 P.2d at 1034-35 (although no Dessureault hearing, appellate court evaluated Biggers factors to determine reliability of identification at pretrial hearing); see also State v. Tresize, 127 Ariz. 571, 574-75, 623 P.2d 1, 4-5 (1980). Leyvas never challenged the reliability of M.’s in-court identification of him, nor was the trial court requested or required to address that issue. Therefore, we likewise need not address the Biggers factors here. In any event, based on the totality of the circumstances, we cannot say the pretrial identification procedure, even if unduly suggestive, “led to a substantial likelihood of [M.’s] misidentification” of Leyvas at trial. Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d at 1183; see also Nieto, 118 Ariz. at 605, 578 P.2d at 1034 (courts consider totality of circumstances to determine whether very substantial likelihood defendant misidentified); cf. Alexander, 108 Ariz. at 564, 503 P.2d at 785. Absent such a showing, Leyvas did not establish a violation of his due process rights. See State v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240, 1245 (1987).
18 ¶31 Several other points on the subject of reliability deserve mention. First, Leyvas
never requested a hearing outside the presence of the jury to permit the trial court to evaluate
and determine the reliability of any in-court identification M. might make. Second, after M.
identified Leyvas on redirect examination as the man she had seen at the park on the night
in question, he did not object to that testimony or move to strike it on the ground of
unreliability that he now urges. Third, we find purely speculative Leyvas’s argument that
“the State would not have been able to prove by clear and convincing evidence . . . [M.’s]
subsequent in-court identification of [him] was not tainted by the suggestive procedure,” had
it been required to do so. Accordingly, we reject Leyvas’s contention that his convictions
must be reversed because M.’s in-court identification of him was tainted and unreliable as
a matter of law.7
¶32 In sum, the “effective procedures at the trial court level,” as outlined in
Dessureault, 104 Ariz. at 384, 453 P.2d at 955, arguably might apply even when, as here, no
pretrial identification has occurred. But, under the circumstances presented here, we cannot
say the trial court erred in finding Dessureault inapplicable and, therefore, denying Leyvas’s
motion to preclude M.’s in-court identification.
7 Leyvas correctly points out that, because the trial court found Dessureault inapplicable, he was not entitled to and did not request “the defense-favorable jury instruction mandated by the [Dessureault] paradigm’s third step.” See ¶ 12, supra. Cf. State v. Stow, 109 Ariz. 282, 284, 508 P.2d 1144, 1146 (1973) (Dessureault jury instruction, “if requested as was done here, is mandatory” in cases to which Dessureault applies). We note, however, the trial court instructed the jury that “it is necessary and incumbent upon the State to prove beyond a reasonable doubt that the defendant was the one who committed” the crimes and that, if the jury “entertain[ed] any reasonable doubt as to the question of the identity of the person who committed these offenses, you must find the defendant not guilty.”
19 II. Rule 20 motion on attempted armed robbery charges
¶33 Leyvas contends the trial court erroneously denied his motion, made pursuant
to Rule 20, Ariz. R. Crim. P., because the state presented insufficient evidence “of all the
elements of attempted armed robbery.” On appeal, we review the court’s denial of a Rule
20 motion for an abuse of discretion. See State v. Paris-Sheldon, 214 Ariz. 500, ¶ 32, 154
P.3d 1046, 1056 (App. 2007). We will reverse only if there is “no substantial evidence to
warrant a conviction.” Ariz. R. Crim. P. 20; see also Paris-Sheldon, 214 Ariz. 500, ¶ 32, 154
P.3d at 1056. “‘Substantial evidence is proof that reasonable persons could accept as
sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.’” State
v. Hall, 204 Ariz. 442, ¶ 49, 65 P.3d 90, 102 (2003), quoting State v. Spears, 184 Ariz. 277,
290, 908 P.2d 1062, 1075 (1996). Evidence sufficient to support a conviction can be direct
or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App. 2005).
¶34 Section 13-1902(A), A.R.S., provides:
A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.
See also State v. Benenati, 203 Ariz. 235, ¶ 26, 52 P.3d 804, 811 (App. 2002). Section 13-
1904(A), A.R.S., elevates “robbery” to “armed robbery” when the robber is armed with, uses,
or threatens to use a deadly weapon or simulated deadly weapon. See also State v. Lopez,
158 Ariz. 258, 263, 762 P.2d 545, 550 (1988). “The essential elements of an attempted
robbery are (1) intent to commit robbery and (2) an overt act towards that commission.”
20 State v. Clark, 143 Ariz. 332, 334, 693 P.2d 987, 989 (App. 1984); see also A.R.S. § 13-
1001(A)(2); State v. McCullough, 94 Ariz. 209, 210, 382 P.2d 682, 683 (1963).
¶35 Leyvas argues there “was no substantial evidence that the assailant intended
to force the women to give him their property and no substantial evidence that he took any
actions planned to culminate in taking the victims’ property” because he “innocuous[ly]”
asked them if they had any money. But Leyvas was holding a gun or “simulated deadly
weapon” throughout his encounter with the victims. And one victim testified he was holding
it when he asked them whether they had any money. Thus, the evidence of Leyvas’s actions
and statements permitted an inference that he had intended to take property from the women
by force. See State v. Vann, 11 Ariz. App. 180, 182, 463 P.2d 75, 77 (1970) (“What the
defendant does or fails to do and what he says may be evidence of what is going on in his
mind.”); see also State v. Greene, 192 Ariz. 431, ¶ 39, 967 P.2d 106, 115 (1998) (jury may
infer state of mind from defendant’s behavior at or near time of offense). Additionally, his
requesting money from the victims while he was holding a gun was an act in furtherance of
the crime, sufficient to support his two convictions for attempted armed robbery. See Vann,
11 Ariz. App. at 182, 463 P.2d at 77; see also State v. Wilson, 120 Ariz. 72, 75, 584 P.2d 53,
56 (App. 1978) (grabbing bag was overt act in furtherance of attempted theft and sufficient
to infer intent to commit crime). Therefore, the trial court did not abuse its discretion by
denying his Rule 20 motion on the attempted armed robbery charges.
21 Disposition
¶36 Leyvas’s convictions and sentences are affirmed.
____________________________________ JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________ JOSEPH W. HOWARD, Presiding Judge
____________________________________ PHILIP G. ESPINOSA, Judge