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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JOSEPH ERIC HILL, Appellant.

No. 1 CA-CR 20-0517 

Appeal from the Superior Court in Maricopa County

No. CR2019-134942-001

The Honorable Ronee Korbin Steiner, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jillian B. Francis

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Carlos D. Carrion

Counsel for Appellant

FILED 10-19-2021
STATE v. HILL

Decision of the Court

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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 Joseph Hill appeals from his convictions and sentences for 

theft, aggravated taking of another person’s identity, and forgery. He 

argues the court erred when it allowed the State to use his driver’s license 

to elicit first-time, in-court testimony from witnesses about whether the 

individual depicted in the license was the same person as the suspect. 

Because the superior court acted within its discretion in admitting the 

license, we affirm. 

BACKGROUND

¶2 In February 2018, a customer identifying himself as “Brian,”

attempted to purchase a large order of wine and champagne from a 

restaurant. The restaurant manager contacted his supplier to obtain the 

merchandise. Charles Dooly, a sales representative for the supplier, 

informed the manager the restaurant could not make the sale because it did 

not have the proper liquor license. Dooly then spoke with Brian, and

suggested he contact a specific wine store to complete his order. 

¶3 Brian called A.M., the owner of the wine store, and placed an

order totaling $43,339. Due to the large quantity being ordered, A.M. told 

Brian he would need to pay in advance. Brian agreed, and explained he 

was going to use his assistant’s credit card and that the sale had to be put 

through “in a particular manner.” A.M. followed Brian’s instructions, and 

the sale initially came back as approved. A.M. then explained that she 

would need a copy of the credit card and the driver’s license of whoever 

picked up the order to complete the transaction. 

¶4 Dooly picked up the merchandise from the supplier and 

brought it to the wine store. Brian’s assistant, “Steve,” called A.M., 

informing her he would pick up the order on Brian’s behalf. Steve arrived 

at the wine store later that evening. Dooly and A.M. described Steve as a

white, bald, middle-aged man with no facial hair. Steve did not have a

driver’s license or credit card on him when he first arrived, so he left to 
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retrieve the items. He returned later and finished the paperwork with A.M. 

Meanwhile, Dooly helped load the order into Steve’s vehicle. Because of 

the size of the order, Dooly discreetly took photos of Steve and the car he 

was driving. 

¶5 The following day, A.M.’s merchant services representative

informed A.M. that the wine store would be charged back for the purchase. 

The representative explained that the transaction had been processed as a 

“forced sale,” and although it came back as approved at the time, the sale 

ultimately did not go through. A.M. called the police and provided her 

records from the transaction, as well phone numbers for Brian and Steve. 

The credit card and license Steve had given her did not belong to a person 

named “Steve,” but rather to someone named J.G. Police discovered that 

one of the phone numbers belonged to Hill. The cell phone provider gave 

police Hill’s address, which matched the address listed on Hill’s license. 

¶6 Although police never asked A.M. or Dooly to identify Hill as 

the individual who had purchased the wine, in December 2019 the State 

indicted Hill for theft, aggravated taking of another person’s identity, and 

forgery. In his notice of disclosure, Hill listed several defenses, including 

mistaken identification. 

¶7 A four-day trial was held in September 2020. Just before 

opening statements, in discussing the State’s exhibits, defense counsel 

objected to the introduction of Hill’s driver’s license, asserting it would be 

unduly suggestive and prejudicial. The State explained that if the witness 

could not recognize Hill in the courtroom, then the State would show the 

witness the license. The court was initially reluctant to admit the license for 

identification purposes. After further discussion, however, the court ruled 

that the license would be admitted. The State’s first witness, A.M., was 

unable to identify Hill as the suspect either in-person, or through the license 

photo, although she did testify that the man in the photo looked similar to 

the suspect. The State’s second witness, Dooly, was able to identify Hill inperson. Over defense counsel’s objection, Dooly also identified the man 

pictured on Hill’s license as the same suspect. 

¶8 At Hill’s request, and over the State’s objection, the court later 

instructed the jury as follows:

Identification. The State must prove beyond a reasonable 

doubt that the in-court identification of the defendant at this 

trial is reliable. In determining whether this in-court 

identification is reliable, you may consider things such as the 
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witness’ opportunity to view at the time of the crime; the 

witness’ degree of attention at the time of the crime; the 

accuracy of any descriptions the witness made prior to the 

trial identification; the witness’ level of certainty at the time 

of the trial identification; the time between the crime and the 

trial identification; any other factor that affects the reliability 

of the identification. 

If you determine that the in-court identification of the 

defendant at this trial is not reliable, then you must not 

consider that identification.

¶9 The jury found Hill guilty as charged and the court sentenced 

Hill to presumptive concurrent prison terms, the longest of which is 15.75 

years. Hill timely appealed, and we have jurisdiction under A.R.S. § 12-

120.21(A)(1). 

DISCUSSION

¶10 Hill argues the court abused its discretion by allowing the 

State to attempt to elicit first-time, in-court identifications with his driver’s

license. We review rulings on in-court identifications for an abuse of 

discretion, but “review de novo the question whether a common law 

procedural rule with constitutional underpinnings . . . applies to a 

particular factual scenario.” State v. Leyvas, 221 Ariz. 181, 184, ¶ 9 (App. 

2009). Because Hill raised the issue at trial, we review for harmless error. 

State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005).

¶11 Hill contends the use of his license to elicit in-court 

identifications violated his due process rights. He argues the use of a single 

photo was unduly suggestive because it “created a substantial likelihood of 

misidentification by unfairly focusing attention on the person that the 

police believed committed the crime,” State v. Strayhand, 184 Ariz. 571, 588 

(App. 1995), and that a more appropriate procedure would have been for 

the State to conduct a police line-up or photo array before trial. 

¶12 It is well established that suggestive pretrial identifications 

arranged by law enforcement officers raise due process concerns. State v.

Lehr, 201 Ariz. 509, 520, ¶ 46 (2002) (“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.”). When pretrial 

identifications are challenged, Arizona courts apply a two-part test to 

determine their admissibility: “(1) whether the method or procedure used 
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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. If the pretrial identification is both unduly suggestive and unreliable, 

testimony regarding the identification must be excluded. Id. The State 

bears the burden of proof by clear and convincing evidence that the 

circumstances surrounding the pretrial identification were not unduly 

suggestive. See State v. Dessureault, 104 Ariz. 380, 384 (1969).

¶13 Hill argues that this two-step procedure should also apply to 

the State’s use of his license for the purpose of a first-time, in-court 

identification. He relies on State v. Strickland, where our supreme court 

applied a Dessureault analysis to a first-time witness identification made

during a preliminary hearing. 113 Ariz. 445, 448 (1976). In Strickland, the

court concluded the circumstances surrounding the identification were

both highly suggestive and unreliable, and therefore granted the defendant

a new trial. Id. Thus, Strickland stands for the proposition “that suggestive 

identification procedures occurring as part of formal court proceedings, like 

those arranged by police, may trigger the procedural protections set forth 

in Dessureault.” State v. Nottingham, 231 Ariz. 21, 25, ¶ 8 (App. 2012),

abrogated on other grounds by State v. Bigger, 251 Ariz. 402, 411, ¶ 25 (2021). 

¶14 After Strickland was decided, however, the U.S. Supreme 

Court clarified that “the Due Process Clause does not require a preliminary 

judicial inquiry into the reliability of an eyewitness identification when the 

identification was not procured under unnecessarily suggestive 

circumstances arranged by law enforcement.” Perry v. New Hampshire, 565 U.S. 

228, 248 (2012) (emphasis added). Thus, “[w]hen no improper law 

enforcement activity is involved, . . . it suffices to test [an identification’s] 

reliability through the rights and opportunities generally designed for that 

purpose, notably, . . . vigorous cross-examination, protective rules of 

evidence, and jury instructions on both the fallibility of eyewitness 

identification and the requirement that guilt be proven beyond a reasonable 

doubt.” Id. at 233; see also Bigger, 251 Ariz. at 412, ¶ 29 (recognizing a jury 

instruction, when appropriate, “as one of the safeguards built into the 

adversarial system relative to eyewitness testimony of questionable 

reliability”).

¶15 Hill acknowledges Perry, but asserts that “[t]he question of 

whether a first time in-court identification orchestrated by a prosecutor 

could trigger due process protections was not before the Court.” Rather, he 

argues the import of Perry is that due process protections are triggered by 

any state actor employing suggestive means of identification, including a 
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prosecutor, and the aim of these procedural safeguards is to “deter the state 

from rigging the identification procedures.” 

¶16 Hill’s proffered analysis conflicts with State v. Goudeau, 239 

Ariz. 421, 457, ¶ 140 (2016). In that case, our supreme court explained that 

“Strickland has been overtaken by Perry to the extent [Strickland] found . . .

in-court identifications could be precluded based on suggestive in-court 

identification procedures that did not involve improper state conduct.”). 

The Goudeau court thus clarified that Perry controls when identifications 

occur “as part of formal court proceedings” and are “not influenced by 

improper law enforcement activity.” Id. at 457, ¶ 141; see also Nottingham, 

231 Ariz. at 25, ¶¶ 8–10. We therefore reject Hill’s argument that the 

procedural requirements in Lehr and Dessureault apply to first-time witness 

identifications made as part of formal court proceedings. Thus, because the 

superior court’s admission of Hill’s license did not implicate due process

concerns, the court was not required to conduct a Dessureault-type hearing 

or analysis. 

¶17 Because admission of Hill’s license does not raise due process 

concerns, we review the court’s decision solely for an abuse of discretion. 

Hill argues the State’s use of the license was unduly suggestive, given that 

it was the only photo of a bald white man presented to the witnesses. But 

the use of a single photo is no more suggestive than the traditional in-court 

identification where a witness identifies the defendant in person. See Perry, 

565 U.S. at 244 (“Most eyewitness identifications involve some element of 

suggestion. Indeed, all in-court identifications do.”); see also Goudeau, 239 

Ariz. at 456–57, ¶¶ 136–43 (finding no abuse of discretion in allowing 

witnesses to identify the defendant for the first time during formal court 

proceedings when he was the only African American male in the courtroom 

and seated next to the defense attorney).

¶18 Hill also contends the State’s reliance on his license photo was 

unnecessary because he was present at trial and therefore available for inperson identification. But the State is generally allowed to introduce 

corroborating evidence, especially considering Hill’s defense was mistaken 

identity. See State v. Talmadge, 196 Ariz. 436, 440, ¶ 19 (2000). The suspect 

was bald and clean shaven at the time of the crime. At trial, Hill had facial 

hair and longer hair. Thus, his license photo, taken when the Hill was clean 

shaven, may have assisted the witnesses in identifying Hill as the suspect. 

¶19 Finally, Hill questions the reliability of the identifications, but 

those concerns were sufficiently tested through cross-examination, when 

A.M. and Dooly were questioned at length on whether they could properly 
STATE v. HILL

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recall and describe who entered the store to purchase the wine. See Goudeau, 

239 Ariz. at 455, ¶ 131. And Hill was afforded additional safeguards to test 

the reliability of the in-court identifications. For example, the superior court 

ensured that pertinent evidentiary rules were followed, and it instructed 

the jury on factors it could consider in evaluating the State’s identification 

evidence. See Bigger, 251 Ariz. at 412, ¶ 29. Accordingly, the court did not 

abuse its discretion in admitting Hill’s license.

CONCLUSION

¶20 We affirm Hill’s convictions and sentences.