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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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 C ounsel for Appellant FILED 10-19-2021STATE v. HILL Decision of the Court

2 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 test imony from witnesse s about whether the individual depicted in the license was the same person as the suspect

. B ecause the superior court acted within its discretion in admitting the license , we affirm.

BACKGROUND

¶2 In February 2018
, a customer identifying himself as “Br ia n,” attempted to purchase a large order of wine and champagne from a
restaurant. The restaurant manager contacted his supplier to obtain the merchandise

. C harles 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 a n 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 toSTATE v. HILL Decision of the Court

3 retrieve the items. H e 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 phot o s 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 fo r 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 pr ovider 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 t he State indicted Hill for theft, a ggravated t aking of a not her person’s identity , and f orgery

. 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 a dmit the license for identification purpose s

. A fter further discussion, however, the court ruled that th e license would be admitted. The State’s first witness, A.M., was unable to identify Hill as the susp ect either in

- person, or through the license ph o to , although she did testify that the man in the photo looked similar to the suspect

. The State’s second witness, Dooly
, was able to identi f y Hill in

person. 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, t he court later instructed the jury as follows:

Identification

. The State must prove beyon d 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 theSTATE v. HILL Decision of the Court

4 witness ’ opportunity to view at the time of the crime; t he 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 T he jury found Hill g uilty 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 S tate 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 procedura l 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 identification s 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 appropr iate procedure would have been for the S tate 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 ) (“ T he 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

. ”). Whe n pretrial identifications are challenged, Arizona courts apply a two

- part test to determine the ir admissibil ity : “(1) whether the method or procedure usedSTATE v. HILL Decision of the Court

5 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 evidenc e 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 appl y to the State’s use of his license for the purpose of a first

- time, in

- court identification. H e relies on State v. Strickland , where our supreme court

a pplied 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 s t ands 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, h owever, the U.S. S upreme C ourt 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, nota bly
, . . . 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
, ¶ 2 9 ( 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 questio n of whether a first time in

- court identification orchestrated by a prosecutor could trigger due process protections was not before the Court.” Rather, h e argues t he import of Perry is that due process protections are triggered by any state actor employin g suggestive means of identification, including aSTATE v. HILL Decision of the Court

6 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 no t 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. a t 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 ad mission of Hill’s license d id not implicate due process

concerns , the court w as 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 witness es

. But the use of a single photo is no more suggestive than the tr aditional in

- court identification where a w i tness 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 attorne y).

¶18 Hill also contends the State’s reliance on h is license photo was unnecessary because he was present at trial and therefore available for in

person identification. But the S tate is generally allowed to introduce corroborating evidence , especially con sidering Hill’s defense was mistaken identity

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

. T he 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 t he 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 properlySTATE v. HILL Decision of the Court

7 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 identifica tions

. 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, th e court did not abuse its discretion in admitting Hill’s license

.
CONCLUSION

¶20 W e affirm Hill’s convictions and sentences

.