Arizona Criminal Defense Attorney Blog
Recently, the Arizona Court of Appeals issued an opinion in an Arizona robbery and felony-murder case. In its opinion, the court affirmed the lower court’s decision to deny the defendant’s motion to preclude an identification made by a witness.
The Facts of the Case
According to the court’s opinion, the defendant and four other individuals robbed an armored truck as two security guards attempted to refill an ATM. One of the individuals fired a rifle at the security guards, and a security guard fired a gunshot back. The shot fired by the security guard was fatal.
The defendant’s DNA was found on a rifle left near the scene of the crime, in addition to the deceased individual’s cell phone being found at the scene of the crime. The call records from the cell phone revealed that the defendant and the deceased had been in communication on multiple occasions and that the defendant had traveled to and from the location of the crime on the day of the incident. The State was authorized to conduct a wiretap on the phones of the suspects, leading to the defendant being arrested.
Police questioned one of the suspects from the robbery and showed the witness a photograph of the defendant, resulting in the witness failing to recognize the defendant. A year later, the witness identified the defendant in a photographic lineup. The defendant filed a motion to exclude the witness’s identification of him as a result of the suggestive manner in which the photographs were shown to the witness. Additionally, the defendant filed a motion to suppress evidence obtained through the phone wiretap because, at the time of the wiretap application being filed for approval, it did not include an affidavit from the principal prosecuting attorney.
The superior court denied the defendant’s identification suppression request because the witness’s identification was considered reliable, and further denied the wiretap suppression request because the application met the substantive requirements.
The Court’s Analysis
The appeals court agreed with the lower court’s finding that the identification of the defendant was inherently suggestive. However, the court found that the identification was nevertheless reliable. To determine whether an identification procedure is unduly suggestive, a court considers the following factors, weighing them against any suggestiveness of the identification procedures:
- The witness’ opportunity to observe the person;
- The witness’ level of attention;
- The witness’ degree of certainty;
- The accuracy of the witness’ description; and
- The amount of time passed between the incident and the identification.
Here, the court explains that the witness was also a co-conspirator of the crime, and thus spent an extended amount of time traveling with the defendant. The witness also described the events of the robbery, accurately described the defendant’s appearance, and testified that he was not influenced by seeing the photograph of the defendant a year before positively identifying him in the photographic lineup. Two years passed between the crime and the photographic lineup took place, but the court found that this factor did not fully weigh against the witness’s reliability.
The court concluded that the superior court was correct to hold the witness’s pretrial identification as reliable, and thus to permit the witness’s in-court identification of the defendant.
Additionally, the court affirmed the lower court’s denial of the defendant’s motion to suppress the wiretap because the application was not substantially deficient and the affidavit was filed sometime after the application was filed, which still sufficed in establishing that the principal prosecuting attorney had personally reviewed and authorized the wiretap application.
Have You Been Arrested for a Violent Offense in Arizona?
If you have recently been arrested and convicted of a violent crime in Arizona, contact attorney James E. Novak for immediate assistance. Attorney Novak has decades of experience handling complex cases and is passionate about defending clients facing all types of serious accusations in Tempe and across Maricopa County. To schedule a free consultation and learn more, call 480-413-1499.