                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                SERGIO ARTURO ROJO-VALENZUELA,
                           Appellant.

                     No. 2 CA-CR 2013-0279
                     Filed September 23, 2014


         Appeal from the Superior Court in Pima County
                      No. CR20123276001
           The Honorable Richard D. Nichols, Judge
                The Honorable Scott Rash, Judge

                           AFFIRMED


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel
By David A. Simpson, Assistant Attorney General, Phoenix
Counsel for Appellee

Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
                   STATE v. ROJO-VALENZUELA
                       Opinion of the Court



                              OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Chief Judge Eckerstrom concurred.


E S P I N O S A, Judge:

¶1          After being convicted of attempted first-degree murder
and aggravated assault with a deadly weapon, Sergio
Rojo-Valenzuela (Valenzuela) was sentenced to two concurrent
prison terms of eleven years each. On appeal, he seeks a new trial or
new Dessureault1 hearing, arguing the trial court erred by admitting
evidence pertaining to his pretrial identification by a police officer
and by inaccurately instructing the jury on attempted first-degree
murder. We affirm.

                 Factual and Procedural Background

¶2           One night in August 2012, police responded to an
emergency call from a car wash where Valenzuela and two other
men had been seen displaying guns and acting “a little crazy.” As
Tucson Police Officer Winans arrived at the scene, Valenzuela and
the two men sped away in a dark-colored sport utility vehicle and
several police cars pursued. Following a high-speed chase through
a residential neighborhood, the SUV came to a stop and the
occupants fled on foot. Officer Wolfe continued to chase Valenzuela
in his patrol car, but was forced to stop when Valenzuela scaled a
wall surrounding a residence. As Wolfe started to get out of his
vehicle, shots were fired striking the hood of the car and the front
windshield just above the steering wheel. Although Wolfe took note
of the shooter’s build and clothing, he did not see his face, and none
of the other officers witnessed the shooting. However, a video


      1State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1968)
(trial court must conduct evidentiary hearing upon challenge to
proposed in-court identification).
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                  STATE v. ROJO-VALENZUELA
                      Opinion of the Court

camera mounted on Wolfe’s dashboard recorded the entire event,
including the moment when the gunman fired five rounds at Wolfe
from behind the wall.

¶3            Police immediately set up a “containment” area that
consisted of an inner and outer “quadrant” and began patrolling the
neighborhood in search of the shooter. Valenzuela was discovered
hiding under a van parked outside a residence within the inner
quadrant. Another suspect was detained several blocks away in the
outer quadrant. After arrests were made, Officers Winans and
Wolfe participated in a series of show-ups with Valenzuela and the
second suspect. Winans was unable to positively identify either
individual, but Wolfe identified Valenzuela as the shooter based on
his clothing, shoes, and physical stature.

¶4            Before trial, Valenzuela moved to suppress any pretrial
and in-court identifications and requested a Dessureault hearing “to
protect his due process rights to a fair identification procedure.”
The trial court held a hearing but ultimately denied the motion to
suppress, finding that Officer Wolfe’s identification was not a
“typical identification that would be the subject of a suppression
motion.” The court made no findings concerning the suggestiveness
or reliability of the identification, concluding instead that Wolfe’s
“use [of] the word ‘identification’ . . . [wa]s more of a shorthand
description of his reaction to seeing someone of a similar size and
similar clothing.” The case proceeded to trial, and Valenzuela was
found guilty by a jury and sentenced as set forth above. We have
jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1),
13–4031, and 13-4033(A).

                             Discussion

Pretrial Identification Procedure

¶5           Valenzuela urges us to reverse and remand for a new
trial or new Dessureault hearing based on the trial court’s admission
of Officer Wolfe’s pretrial identification testimony. He challenges
the court’s conclusion that Wolfe’s identification was an atypical one
requiring no evaluation under the due process clause. Had the court
engaged in the proper analysis, he argues, it would have concluded

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                   STATE v. ROJO-VALENZUELA
                       Opinion of the Court

that the show-up identification was both unduly suggestive and
unreliable and that his pretrial and in-court identifications should be
suppressed. The state concedes that Wolfe’s initial identification
was inherently suggestive and that it should have been subjected to
a due process analysis, but argues the court’s ruling may be upheld
because the suggestive identification procedure was necessary
under the circumstances and Wolfe’s identification was reliable.2

¶6           We review the trial court’s ruling for a clear abuse of
discretion, State v. Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d 1172, 1183 (2002),
deferring to factual findings unless “clearly erroneous,” State v.
Forde, 233 Ariz. 543, ¶ 28, 315 P.3d 1200, 1213 (2014); State v. Moore,
222 Ariz. 1, ¶ 17, 213 P.3d 150, 156 (2009). The ultimate question of
constitutionality, however, is a mixed question of law and fact that
we review de novo. Moore, 222 Ariz. 1, ¶ 17, 213 P.3d at 156, citing
Sumner v. Mata, 455 U.S. 591, 597 & n.10 (1982). When analyzing a
claim of error in this context, we consider only the evidence
presented at the suppression hearing. Id.

¶7             The due process clause of the Fourteenth Amendment
requires that police identification procedures be 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; see U.S. Const.
amend. XIV, § 1. To that end, courts have imposed limits on the
admission of such identifications conducted under suggestive
circumstances that may “lead[] the witness to identify a particular
person as the perpetrator of a crime.” Perry v. New Hampshire, ___
U.S. ___, ___, 132 S. Ct. 716, 720 (2012).

¶8           In State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951,
955 (1968), our supreme court set forth the procedure to be followed
when a proposed in-court identification has been challenged on
grounds that it will be tainted by an unduly suggestive pretrial
identification method. First, a hearing must be held “to determine

      2The  state also argued that any error was harmless because
Wolfe’s identification was corroborated by DNA evidence and by
video footage taken from his patrol car’s dashboard-mounted
camera. Our reliability determination, however, renders analysis of
this issue unnecessary.
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                   STATE v. ROJO-VALENZUELA
                       Opinion of the Court

from clear and convincing evidence whether [the prior
identification] contained unduly suggestive circumstances.” Id. at
384, 453 P.2d at 955. If the prosecution fails to establish that the
identification was not unduly suggestive, it may then attempt to
prove that the proposed in-court identification is not tainted. Id. If
the court finds the in-court identification admissible on that basis,
upon request it must provide a cautionary jury instruction
concerning the relationship between the pretrial and in-court
identifications. Id.

¶9             While the procedures set forth in Dessureault still
govern a defendant’s challenge to the admission of identification
evidence, the analysis has been altered slightly to incorporate
subsequent developments in constitutional law. Significantly, we
now recognize that a defendant’s due process rights will not be
violated by the admission of evidence concerning an unduly
suggestive—but nevertheless reliable—pretrial identification. See,
e.g., State v. Williams, 144 Ariz. 433, 440, 698 P.2d 678, 684 (1985)
(well-established that “‘[t]he admission of testimony concerning a
suggestive and unnecessary identification procedure does not
violate due process so long as [it] possesses sufficient aspects of
reliability’”), quoting Manson v. Brathwaite, 432 U.S. 98, 106 (1977); see
also Perry, ___ U.S. at ___, 132 S. Ct. at 720 (if “indicia of reliability
are strong enough to outweigh the corrupting effect of the police-
arranged suggestive circumstances,” identification evidence
“ordinarily will be admitted”).

¶10           A pretrial identification found to be “unduly
suggestive,” will be screened for reliability under the factors
articulated by the Supreme Court in Neil v. Biggers, 409 U.S. 188
(1972). See, e.g., Moore, 222 Ariz. 1, ¶¶ 15-16, 32, 213 P.3d at 156, 158;
Lehr, 201 Ariz. 509, ¶ 48, 38 P.3d at 1183; Williams, 144 Ariz. 433, 439-
40, 698 P.2d 678, 684-85. Such factors

             include the opportunity of the witness to
             view the criminal at the time of the crime,
             the witness’ degree of attention, the
             accuracy of the witness’ prior description
             of the criminal, the level of certainty
             demonstrated by the witness at the
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                    STATE v. ROJO-VALENZUELA
                        Opinion of the Court

             confrontation, and the length of time
             between the crime and the confrontation.

Biggers, 409 U.S. at 199-200. As the state notes, these factors are
“non-exclusive,” and, at times, our analysis may be informed by
other indicia of reliability or lack thereof. See 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. As 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 (4th Cir. 1980) (Biggers
factors applied to identification based on height, weight, clothing,
and complexion).        Accordingly, Wolfe’s pretrial and in-court
identifications should have been admitted only if they satisfied the
requirements of due process set forth above to be admissible at trial.

¶12          The state concedes that the one-man show-up
procedure employed here was “inherently suggestive,” see, e.g.,
Williams, 144 Ariz. at 439, 698 P.2d at 684, but relies on the nature of
Valenzuela’s crime to argue that it was not “unduly” so.
Emphasizing law enforcement’s pressing need to capture a suspect
who had fired on a police officer and taken flight in a residential
neighborhood, the state argues the necessity of the show-up
rendered a reliability analysis unnecessary. It fails, however, to cite
any Arizona authority for the proposition that due process

      3While  we take no position on whether an identification based
solely on the suspect’s clothing implicates due process, we note that
several courts have rejected this view. See Johnson v. Ross, 955 F.2d
178, 180-81 (2d Cir. 1992); People v. Legore, 996 N.E.2d 148, 154-55 (Ill.
App. Ct. 2013).
                                     6
                    STATE v. ROJO-VALENZUELA
                        Opinion of the Court

violations associated with suggestive identifications can be cured by
evidence of exigent circumstances. Nor is it explained how this
notion can be reconciled with binding authority identifying
reliability as the “‘linchpin’” of admissibility when law enforcement
officers employ improper identification procedures. Lehr, 201 Ariz.
509, ¶ 46, 38 P.3d 1172, 1183, quoting Brathwaite, 432 U.S. at 114.

¶13           Indeed, the state’s contention is inconsistent with our
supreme court’s reasoning in State v. Hoskins, 199 Ariz. 127, ¶ 35,
14 P.3d 997, 1008-09 (2000), which involved the use of a show-up
identification of an individual suspected of kidnapping an eighteen-
year-old girl. In Hoskins, the state argued that the defendant had
“no constitutional right to a physical line-up” and that one-man
show-ups were permissible under state law. Id. ¶ 33. At the time the
show-up was conducted, the victim was still missing. The court
observed that the show-up was justified under the circumstances,
but it went on to conclude, based on its examination of the Biggers
factors, that the identification was properly admitted based on its
reliability. Id. ¶¶ 31, 34-35.

¶14         Given that exigent circumstances attend many if not
most suggestive police show-ups, it follows that a reliability analysis
would rarely be required if exigency alone could justify the
admission of suggestive identifications. We are therefore reluctant
to reach such a conclusion in the absence of further guidance from
the Arizona or United States Supreme Court. In any event, the state
presented no evidence at the Dessureault hearing concerning the
necessity of the particular procedure, or the reasons it could not
have taken measures to make the show-up less suggestive.

¶15           Accordingly, we turn to the question of whether the
trial court’s ruling should be affirmed on the basis of reliability.4


      4Valenzuela  argues this analysis should not be conducted for
the first time on appellate review. However, as he acknowledges,
reviewing courts in this state have evaluated reliability in the first
instance where necessary. See Williams, 144 Ariz. at 440-41, 698 P.2d
at 685-86. Moreover, this court has previously determined that
Dessureault allows us to undertake an admissibility analysis for the
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                   STATE v. ROJO-VALENZUELA
                       Opinion of the Court

Although Officer Wolfe’s opportunity to view Valenzuela was brief,
beginning just after Valenzuela fled from the Jeep and lasting only
until he scaled the wall, Wolfe was a fairly short distance away—
“twenty to thirty feet,” by his account—and the area was
illuminated by his squad car’s spotlight. The short duration of
Wolfe’s observation was more than offset by his degree of attention
at that point. See State v. McLoughlin, 133 Ariz. 458, 462, 652 P.2d
531, 535 (1982) (identification reliable notwithstanding short
duration of observation where witnesses “had a reason to have their
attentions riveted on [the suspect]”); Trujillo, 120 Ariz. 527, 530, 587
P.2d 246, 249 (reliability established where witness had only seconds
to view defendant but “her attention was immediately drawn” to
him). The record of the suppression hearing demonstrates that
Wolfe’s focus was solely on Valenzuela and that he had been trained
to take note of a suspect’s clothing and build while in pursuit.

¶16          Officer Wolfe also testified about information he had
provided over the radio immediately after shots had been fired,
before the suggestive show-up occurred. He described the suspect
as “a male wearing all black clothing and . . . of thin build, short
stature.” Evidence in the record established that this description
matched Valenzuela’s appearance on the night of the shooting. See
Moore, 222 Ariz. 1, ¶ 26, 213 P.2d at 157 (comparing description
provided before suggestive procedure to evidence of defendant’s
appearance).     Wolfe’s “99 percent” level of certainty in his
identification—which he attributed to his observations regarding
Valenzuela’s physical build, pants, and distinctive shoes—and the
passage of no more than six hours between Wolfe’s confrontation
and his identification also support a finding of reliability. Thus, we
conclude the foregoing factors are sufficient to determine by clear
and convincing evidence that Wolfe’s pretrial and in-court


first time on appeal. See State v. Leyvas, 221 Ariz. 181, n.6, 211 P.3d
1165, 1174 n.6 (App. 2009) (“[I]t is highly preferable for the trial
court to rule on the issues of taint and reliability . . . [b]ut 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.’”), citing Dessureault, 104 Ariz. at 384, 453 P.2d at 955.
                                   8
                    STATE v. ROJO-VALENZUELA
                        Opinion of the Court

identifications were reliable and admissible. That the jury also
viewed video footage corroborating Wolfe’s description and was
instructed on the reliability of in-court identifications only reinforces
our conclusion that any weaknesses in his testimony were matters of
weight for the jury. See Moore, 222 Ariz. 1, ¶ 29, 213 P.3d at 158.

Out of Court Statements

¶17           Valenzuela next contends that testimony by Detective
Gonzalez, who brought Officer Wolfe to the show-up, regarding
Wolfe’s statement at that time “was classic hearsay” and that the
trial court abused its discretion when it admitted the testimony over
Valenzuela’s objection. The state responds that the detective’s
testimony was admissible pursuant to Ariz. R. Evid. 801(d)(1)(C),
which classifies as non-hearsay any statement of identification made
by a declarant-witness who is subject to cross-examination.
Valenzuela concedes in his reply that this subsection applies to
“statements of identification . . . conducted in a constitutional
manner,” and that the “Rule 801(d)(1)(C) hearsay exemption
[applies] to [the detective’s] testimony about Officer Wolfe’s
statement,” to the extent Wolfe’s identification comported with due
process. We agree, and incorporating our due process analysis
above, conclude that Gonzalez’s testimony regarding Wolfe’s
identification was properly admitted.

Jury Instruction

¶18         Finally, Valenzuela argues that the trial court’s jury
instruction on attempted first-degree murder constituted
fundamental error. He maintains the court’s use of the term “the
crime” or “a crime” in describing the elements of attempt was
impermissibly vague because it allowed the jury to find him guilty
of attempted first-degree murder if it found that he had attempted to
commit any crime, not just first-degree murder.5 The state disputes

      5The   trial court’s instruction provided:

       The crime of attempted first degree murder requires
       proof that the Defendant:

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                   STATE v. ROJO-VALENZUELA
                       Opinion of the Court

his characterization of the instruction, insisting “the crime”
referenced in the instruction can only be interpreted to mean first-
degree murder “and not some hypothetical other crime.”

¶19           We review the legal adequacy of a jury instruction de
novo. State v. Martinez, 218 Ariz. 421, ¶ 49, 189 P.3d 348, 359 (2008).
In doing so, we view the instructions in their entirety to determine
whether they accurately reflect the law, State v. Rutledge, 197 Ariz.
389, ¶ 15, 4 P.3d 444, 448 (App. 2000), and interpret the instruction as
a reasonable juror would, cf. State v. Abdi, 226 Ariz. 361, ¶ 9, 248 P.3d
209, 212 (App. 2011) (interpreting jury instruction dealing with
state’s burden of proof). Applying these standards, we conclude
that no reasonable juror would have interpreted the court’s
instruction on attempted first-degree murder as permitting a guilty
verdict based on a finding that he had been attempting to commit
another crime, given the content of the instruction and its
juxtaposition with an instruction on the substantive crime of first-
degree murder.

¶20          And even were we to find error in the court’s
instruction, Valenzuela has failed to establish any resulting
prejudice. See State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d
601, 607 (2005). In evaluating the impact of an allegedly erroneous
jury instruction, we will, along with other factors, consider the
statements of counsel. State v. Valverde, 220 Ariz. 582, ¶ 16, 208 P.3d
233, 237 (2009). Here, the prosecutor focused on the connection
between the charge of attempted first-degree murder and



       (1) Intentionally engaged in conduct that would
       have been a crime if the circumstances relating to the
       crime were as the Defendant believed them to be; or
       (2) Intentionally committed any act that was a step
       in a course of conduct that the defendant believed
       would end in the commission of a crime; or
       (3) Engaged in conduct intended to aid another
       person to commit a crime, in a manner that would
       make the Defendant an accomplice, had the crime
       been committed or attempted by the other person.
                                   10
                   STATE v. ROJO-VALENZUELA
                       Opinion of the Court

Valenzuela’s intent to commit first-degree murder throughout his
closing:

            There is no question the person that shot at
            [the officer] is guilty of [aggravated
            assault]. And the same with the attempted
            first degree murder. . . . [Y]ou saw where
            that bullet went through Officer Wolfe’s
            car. . . . Those aren’t lucky shots. That is
            someone [who] is trying to kill an
            officer . . . .

            ....

            Premeditation doesn’t mean that the
            Defendant, you know, sat at home and
            made a list of ways that he was going to kill
            Officer Wolfe on August 12th of 2012
            because premeditation is any amount of
            time for reflection . . . . That’s all that is
            required on attempted first degree
            murder . . . .

            ....

            From the first shot, [Valenzuela] was—he
            reflected on killing that officer, but
            certainly by the 5th, yeah, that’s time for
            reflection and that is premeditation and
            that is attempted murder.

There is nothing in these statements to suggest that the jury could
find Valenzuela guilty of attempted first-degree murder based on an
intent to commit any other crime. Accordingly, we conclude that
the alleged instructional error could not have prejudiced Valenzuela
and reject his claim for relief on this ground.

                            Disposition

¶21          For all of the foregoing         reasons,   Valenzuela’s
convictions and sentences are affirmed.

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