Dessureault hearing in Arizona

2022See generally State v. Dessureault, 104 Ariz. 380 (1969). ¶7 Father, J.L., F.L., and two officers testified at the Dessureault hearing.

2022See generally State v. Dessureault, 104 Ariz. 380 (1969). ¶7 Father, J.L., F.L., and two officers testified at the Dessureault hearing.

2015See State v. Cartwright, 155 Ariz. 308, 311 (1987) (“[T]here was no need to hold a Dessureault hearing because the witness had not participated in any pretrial identification procedures.”). ¶18 During cross-examination, the two victims testified that they recognized Woody as their assailant after independently viewing pictures of him published in the Arizona Daily Sun following his arrest.

2015See State v. Cartwright, 155 Ariz. 308, 311 (1987) (“[T]here was no need to hold a Dessureault hearing because the witness had not participated in any pretrial identification procedures.”). ¶18 During cross-examination, the two victims testified that they recognized Woody as their assailant after independently viewing pictures of him published in the Arizona Daily Sun following his arrest.

1995The court conducted a Dessureault hearing, State v. Dessureault, 104 Ariz. 380 , 453 P.2d 951 (1969), cert. denied, 397 U.S. 965 , 90 S.Ct. 1000 , 25 L.Ed.2d 257 (1970), and held that there was no evidence of suggestion or police misconduct.

1990After a Dessureault hearing, State v. Dessureault, 104 Ariz. 380 , 453 P.2d 951 (1969), cert. denied, 397 U.S. 965 , 90 S.Ct. 1000 , 25 L.Ed.2d 257 (1970), the trial court denied the motion, finding that the photographic identification was not a result of suggestiveness or misconduct on the part of law enforcement officers and was therefore admissible.

2015State v. Prion, 203 Ariz. 157, 160, ¶ 14 (2002). 5 STATE v. WOODY Decision of the Court ¶16 The purpose of a Dessureault hearing is to determine whether a pre-trial identification procedure was unduly suggestive. 104 Ariz. at 384 .

2015State v. Prion, 203 Ariz. 157, 160, ¶ 14 (2002). 5 STATE v. WOODY Decision of the Court ¶16 The purpose of a Dessureault hearing is to determine whether a pre-trial identification procedure was unduly suggestive. 104 Ariz. at 384 .

2014See State v. Fierro, 166 Ariz. 539, 546-47 , 804 P.2d 72, 79-80 (1990) (relying in part on extensive cross-examination of witness); State v. Nieto, 118 Ariz. 603, 605 , 578 P.2d 1032, 1034 (App.1978) (noting Biggers factors are “not exclusive”). ¶ 11 We agree with both parties that the trial court erred by concluding Officer Wolfe’s identification was not subject to a Dessureault analysis.

2014See State v. Fierro, 166 Ariz. 539, 546-47 , 804 P.2d 72, 79-80 (1990) (relying in part on extensive cross-examination of witness); State v. Nieto, 118 Ariz. 603, 605 , 578 P.2d 1032, 1034 (App.1978) (noting Biggers factors are “not exclusive”). ¶ 11 We agree with both parties that the trial court erred by concluding Officer Wolfe’s identification was not subject to a Dessureault analysis.

2009See 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).

2009See 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).

1997However, “the Dessureault instruction is only warranted if the trial court finds that the pretrial identification was unduly suggestive.” State v. Perry, 116 Ariz. 40, 47 , 567 P.2d 786, 793 (App.1977); Harris, 23 Ariz.App. at 360 , 533 P.2d at 571 .

1997However, “the Dessureault instruction is only warranted if the trial court finds that the pretrial identification was unduly suggestive.” State v. Perry, 116 Ariz. 40, 47 , 567 P.2d 786, 793 (App.1977); Harris, 23 Ariz.App. at 360 , 533 P.2d at 571 .

2012In State v. Strickland, our supreme court applied a Dessureault analysis to a witness identification made for the first time at a preliminary hearing, granting the defendant a new trial because the circumstances were so unduly suggestive that they created a “ ‘substantial likelihood of irreparable misidentification’” in any subsequent trial. 113 Ariz. 445, 448 , 556 P.2d 320, 323 (1976), quoting Simmons v. United States, 390 U.S. 377, 384 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968).

2012In State v. Strickland, our supreme court applied a Dessureault analysis to a witness identification made for the first time at a preliminary hearing, granting the defendant a new trial because the circumstances were so unduly suggestive that they created a “ ‘substantial likelihood of irreparable misidentification’” in any subsequent trial. 113 Ariz. 445, 448 , 556 P.2d 320, 323 (1976), quoting Simmons v. United States, 390 U.S. 377, 384 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968).

2021He 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).

2021He 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).

2009See 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).

2009See 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).

2009See State v. Myers, 117 Ariz. 79, 83-84 , 570 P.2d 1252, 1256-57 (1977) (after hearing at which victim addressed 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 factor

2009See State v. Myers, 117 Ariz. 79, 83-84 , 570 P.2d 1252, 1256-57 (1977) (after hearing at which victim addressed 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 factor

2009However, 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.

2009However, 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.

2009See State v. Reid, 114 Ariz. 16, 25-26 , 559 P.2d 136, 145-46 (1976) (trial court should have held pretrial evi-dentiary hearing, 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, 83 Wis.2d 239 , 265 N.W.2d 553, 558 (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 ,

2009See State v. Reid, 114 Ariz. 16, 25-26 , 559 P.2d 136, 145-46 (1976) (trial court should have held pretrial evi-dentiary hearing, 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, 83 Wis.2d 239 , 265 N.W.2d 553, 558 (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 ,

2009See State v. Reid, 114 Ariz. 16, 25-26 , 559 P.2d 136, 145-46 (1976) (trial court should have held pretrial evi-dentiary hearing, 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, 83 Wis.2d 239 , 265 N.W.2d 553, 558 (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 ,

2009See State v. Reid, 114 Ariz. 16, 25-26 , 559 P.2d 136, 145-46 (1976) (trial court should have held pretrial evi-dentiary hearing, 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, 83 Wis.2d 239 , 265 N.W.2d 553, 558 (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 ,

2016He argued, however, that in light of Neil v. Biggers, 409 U.S. 188, 198-99 (1972), the victim’s identification of Hollingsworth should not be precluded given her detailed description of Hollingsworth’s vehicle, license plate number, and shirt. ¶11 Hollingsworth then orally amended his Dessureault motion to request a mistrial or dismissal, and argued that the prosecutor admitted showing the victim a photograph of Hollingsworth wearing the shirt and, on redirect, admitted that he showed the victim the picture about a month before trial.

2016After considering the reliability factors set forth in Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), the trial court concluded that Any’s identification was sufficiently reliable and denied Goudeau’s motion to preclude.

1997The majority cites State v. Moran, 109 Ariz. 30 , 504 P.2d 931 (1972) for the proposition that no Dessureault instruction need be given when the pretrial identification procedures were not suggestive.

1997The majority cites State v. Moran, 109 Ariz. 30 , 504 P.2d 931 (1972) for the proposition that no Dessureault instruction need be given when the pretrial identification procedures were not suggestive.

2022But “disagreements in trial strategy will not support a claim of ineffective assistance of counsel, provided the challenged conduct had some reasoned basis.” State v. Vickers, 180 Ariz. 521, 526 (1994) (quoting State v. Nirschel, 155 Ariz. 206, 208 (1987)). ¶17 On review, Martin asserts the superior court (1) misapplied the law when ruling on the Dessureault and body-camera claims of ineffective assistance in the PCR petition and (2) abused its discretion by denying the petition without a hearing. ¶18 Martin contends the superior court improperly analyzed the Dessureault claim for ineffective

2022But “disagreements in trial strategy will not support a claim of ineffective assistance of counsel, provided the challenged conduct had some reasoned basis.” State v. Vickers, 180 Ariz. 521, 526 (1994) (quoting State v. Nirschel, 155 Ariz. 206, 208 (1987)). ¶17 On review, Martin asserts the superior court (1) misapplied the law when ruling on the Dessureault and body-camera claims of ineffective assistance in the PCR petition and (2) abused its discretion by denying the petition without a hearing. ¶18 Martin contends the superior court improperly analyzed the Dessureault claim for ineffective

2022But “disagreements in trial strategy will not support a claim of ineffective assistance of counsel, provided the challenged conduct had some reasoned basis.” State v. Vickers, 180 Ariz. 521, 526 (1994) (quoting State v. Nirschel, 155 Ariz. 206, 208 (1987)). ¶17 On review, Martin asserts the superior court (1) misapplied the law when ruling on the Dessureault and body-camera claims of ineffective assistance in the PCR petition and (2) abused its discretion by denying the petition without a hearing. ¶18 Martin contends the superior court improperly analyzed the Dessureault claim for ineffective

2022But “disagreements in trial strategy will not support a claim of ineffective assistance of counsel, provided the challenged conduct had some reasoned basis.” State v. Vickers, 180 Ariz. 521, 526 (1994) (quoting State v. Nirschel, 155 Ariz. 206, 208 (1987)). ¶17 On review, Martin asserts the superior court (1) misapplied the law when ruling on the Dessureault and body-camera claims of ineffective assistance in the PCR petition and (2) abused its discretion by denying the petition without a hearing. ¶18 Martin contends the superior court improperly analyzed the Dessureault claim for ineffective

2016“The law only requires that [the photo lineups] depict individuals who basically resemble one another such that the suspect’s photograph does not stand out.” Id. (citing State v. Alvarez, 145 Ariz. 370, 373 (1985)); see State v. Martinez, 121 Ariz. 62, 64-65 (App. 1978). ¶15 A Dessureault hearing was not conducted by the trial court in this case because Ballesteros never challenged the pretrial photo lineup identification.

2016“The law only requires that [the photo lineups] depict individuals who basically resemble one another such that the suspect’s photograph does not stand out.” Id. (citing State v. Alvarez, 145 Ariz. 370, 373 (1985)); see State v. Martinez, 121 Ariz. 62, 64-65 (App. 1978). ¶15 A Dessureault hearing was not conducted by the trial court in this case because Ballesteros never challenged the pretrial photo lineup identification.

2016“The law only requires that [the photo lineups] depict individuals who basically resemble one another such that the suspect’s photograph does not stand out.” Id. (citing State v. Alvarez, 145 Ariz. 370, 373 (1985)); see State v. Martinez, 121 Ariz. 62, 64-65 (App. 1978). ¶15 A Dessureault hearing was not conducted by the trial court in this case because Ballesteros never challenged the pretrial photo lineup identification.

2016“The law only requires that [the photo lineups] depict individuals who basically resemble one another such that the suspect’s photograph does not stand out.” Id. (citing State v. Alvarez, 145 Ariz. 370, 373 (1985)); see State v. Martinez, 121 Ariz. 62, 64-65 (App. 1978). ¶15 A Dessureault hearing was not conducted by the trial court in this case because Ballesteros never challenged the pretrial photo lineup identification.

2014See State v. Fierro, 166 Ariz. 539, 546-47 , 804 P.2d 72, 79-80 (1990) (relying in part on extensive cross-examination of witness); State v. Nieto, 118 Ariz. 603, 605 , 578 P.2d 1032, 1034 (App.1978) (noting Biggers factors are “not exclusive”). ¶ 11 We agree with both parties that the trial court erred by concluding Officer Wolfe’s identification was not subject to a Dessureault analysis.

2014See State v. Fierro, 166 Ariz. 539, 546-47 , 804 P.2d 72, 79-80 (1990) (relying in part on extensive cross-examination of witness); State v. Nieto, 118 Ariz. 603, 605 , 578 P.2d 1032, 1034 (App.1978) (noting Biggers factors are “not exclusive”). ¶ 11 We agree with both parties that the trial court erred by concluding Officer Wolfe’s identification was not subject to a Dessureault analysis.

2014As the state acknowledges, “[t]he mere fact that an identification is based on a suspect’s build and clothing — as opposed to the suspect’s face — does not exempt the identification from due process analysis.” 3 State v. Trujillo, 120 Ariz. 527, 530 , 587 P.2d 246, 249 (1978) (applying Biggers factors to analyze identification based on physical stature, clothing, and length of hair); see also Willis v. Garrison, 624 F.2d 491 , 494 *621 (4th Cir.1980) (Biggers factors applied to identification based on height, weight, clothing, and complexion).

2014As the state acknowledges, “[t]he mere fact that an identification is based on a suspect’s build and clothing — as opposed to the suspect’s face — does not exempt the identification from due process analysis.” 3 State v. Trujillo, 120 Ariz. 527, 530 , 587 P.2d 246, 249 (1978) (applying Biggers factors to analyze identification based on physical stature, clothing, and length of hair); see also Willis v. Garrison, 624 F.2d 491 , 494 *621 (4th Cir.1980) (Biggers factors applied to identification based on height, weight, clothing, and complexion).

2014As the state acknowledges, “[t]he mere fact that an identification is based on a suspect’s build and clothing — as opposed to the suspect’s face — does not exempt the identification from due process analysis.” 3 State v. Trujillo, 120 Ariz. 527, 530 , 587 P.2d 246, 249 (1978) (applying Biggers factors to analyze identification based on physical stature, clothing, and length of hair); see also Willis v. Garrison, 624 F.2d 491 , 494 *621 (4th Cir.1980) (Biggers factors applied to identification based on height, weight, clothing, and complexion).

2014As the state acknowledges, “[t]he mere fact that an identification is based on a suspect’s build and clothing — as opposed to the suspect’s face — does not exempt the identification from due process analysis.” 3 State v. Trujillo, 120 Ariz. 527, 530 , 587 P.2d 246, 249 (1978) (applying Biggers factors to analyze identification based on physical stature, clothing, and length of hair); see also Willis v. Garrison, 624 F.2d 491 , 494 *621 (4th Cir.1980) (Biggers factors applied to identification based on height, weight, clothing, and complexion).

2014We reject these arguments because the court was not required to conduct a Dessureault hearing, and therefore any error was harmless. ¶ 30 In Perry v. New Hampshire, the Supreme Court clarified — as this Court had previously held — that only state action requires a Dessureault-type hearing. — U.S. -, 132 S.Ct. 716 , 730, 181 L.Ed.2d 694 (2012) (“[T]he 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.”); see also

2014We reject these arguments because the court was not required to conduct a Dessureault hearing, and therefore any error was harmless. ¶ 30 In Perry v. New Hampshire, the Supreme Court clarified — as this Court had previously held — that only state action requires a Dessureault-type hearing. — U.S. -, 132 S.Ct. 716 , 730, 181 L.Ed.2d 694 (2012) (“[T]he 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.”); see also