                               IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                  v.

                  SERGIO ARTURO ROJO-VALENZUELA,
                             Appellant.

                          No. CR-14-0364-PR
                           Filed July 9, 2015

            Appeal from the Superior Court in Pima County
              The Honorable Richard D. Nichols, Judge
                   The Honorable Scott Rash, Judge
                        No. CR20123276-001
                             AFFIRMED

             Opinion of the Court of Appeals, Division Two
                   235 Ariz. 617, 334 P.3d 1276 (2014)
                              AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
David A. Simpson (argued), Assistant Attorney General, Phoenix,
Attorneys for State of Arizona

Isabel G. Garcia, Pima County Legal Defender, Scott A. Martin (argued),
Assistant Legal Defender, Tucson, Attorneys for Sergio Arturo Rojo-
Valenzuela

JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.
                        STATE v. ROJO-VALENZUELA
                            Opinion of the Court



JUSTICE BERCH, opinion of the Court:

¶1             An inherently suggestive one-person show-up identification
procedure implicates due process, but such an identification is nevertheless
admissible at trial if it is sufficiently reliable. State v. Williams, 144 Ariz. 433,
439–40, 698 P.2d 678, 684–85 (1985). We must decide whether an appellate
court may make a reliability determination in the first instance when the
trial court has failed to do so. We conclude that although the trial court
should make reliability findings before identification evidence is presented
to a jury, an appellate court may make the reliability determination if the
trial court record permits an informed analysis.

                               I. BACKGROUND

¶2             One evening in 2012, Tucson Police Officer Jared Wolfe
responded to an emergency call concerning a man with a gun who was
fleeing in a vehicle. He spotted the suspects’ vehicle and gave chase. After
a high-speed pursuit through a residential neighborhood, the suspects
suddenly stopped their car and fled on foot. Wolfe followed one suspect in
his patrol car, shining his spotlight on him as he jumped over a block wall.
Wolfe testified at a pretrial suppression hearing that the suspect was “of
thin build [and] short stature” and was wearing “a black long-sleeved shirt,
black pants . . . [and] black and red shoes.” Although Wolfe never saw the
suspect’s face, he testified that the suspect was approximately twenty to
thirty feet away and that he was focused on the suspect and free from other
distractions. He further testified that officers develop the ability to attend
closely to physical details while on patrol.

¶3             Wolfe remained on the scene until the area was secured and
then was taken to separately view two individuals. He could not identify
the first suspect, but did positively identify the second suspect, Sergio
Arturo Rojo-Valenzuela. He noted that Rojo-Valenzuela was wearing “the
same pants and shoes that were worn by the individual that went over the
wall” and that “[h]is physical build was exactly what [he] remembered . . .
thin, short stature.” Wolfe testified that he was ninety-nine percent certain
that Rojo-Valenzuela was the man who went over the wall “based on




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                      STATE v. ROJO-VALENZUELA
                          Opinion of the Court


everything else minus the face.”

¶4             After holding a Dessureault hearing, the trial judge denied
Rojo-Valenzuela’s motion to suppress Wolfe’s pretrial identification. See
State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969) (holding that
the trial court must conduct an evidentiary hearing when a pretrial
identification is challenged). The judge did not make any findings
regarding the procedure’s suggestiveness or the identification’s reliability
because he did “not find[] this to be a typical identification that would be
the subject of a suppression motion.” On appeal, the State conceded that
the show-up identification procedure was inherently suggestive and that
the trial court erred in concluding that Wolfe’s identification was not
subject to a due process identification analysis. State v. Rojo-Valenzuela, 235
Ariz. 617, 619 ¶ 5, 334 P.3d 1276, 1278 (App. 2014). Relying on the pretrial
hearing transcript, see id. at 619 ¶ 6, 334 P.3d at 1278, the court of appeals
found by clear and convincing evidence that Wolfe’s identification of Rojo-
Valenzuela was reliable and therefore admissible, id. at 622 ¶ 16, 334 P.3d
at 1281.

¶5            We granted review to clarify whether an appellate court may
decide the reliability of a suggestive identification in the first instance, an
issue of statewide importance. We have jurisdiction pursuant to Article 6,
Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

                              II. DISCUSSION

¶6            The Due Process Clause provides that no person may be
deprived of liberty without due process. U.S. Const. amend. XIV, § 1. It
has been interpreted to require “that any pretrial identification procedures
[be] conducted in a manner that is fundamentally fair and secures the
suspect’s right to a fair trial.” State v. Lehr, 201 Ariz. 509, 520 ¶ 46, 38 P.3d
1172, 1183 (2002), supplemented by 205 Ariz. 107, 67 P.3d 703 (2003). Whether
an identification procedure is so suggestive that it violates a defendant’s
due process rights depends on the totality of the circumstances. See
Dessureault, 104 Ariz. at 383, 453 P.2d at 954. In this case, however, we are
not reviewing the ruling on the motion to suppress. The only issue before
us is whether an appellate court may make the reliability determination in




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                      STATE v. ROJO-VALENZUELA
                          Opinion of the Court


the first instance, a legal determination that we review de novo. See State v.
Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 (1986). Thus, we do not address
the court of appeals’ reliability analysis or conclusion.

¶7            In Dessureault, we set forth the procedure for Arizona courts
to follow when a defendant challenges a pretrial identification. 104 Ariz. at
383–84, 453 P.2d at 954–55. Under Dessureault, the prosecution must prove
by clear and convincing evidence that the identification was not the product
of an inherently suggestive procedure or, if the procedure was inherently
suggestive, that the identification is nonetheless reliable. Id. at 384, 453 P.2d
at 955.1 Subsequent cases have clarified that an in-court identification
resulting from an inherently suggestive initial identification is admissible
unless the procedure created a “very substantial likelihood of . . .
misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)). That is, the court must
determine whether the in-court identification is reliable despite the
suggestiveness of the initial identification. Lehr, 201 Ariz. at 520 ¶ 46, 38
P.3d at 1183 (stating that “reliability is the linchpin in determining the
admissibility of identification testimony” (quoting Brathwaite, 432 U.S. at
114)). The standard has thus evolved from admitting the identification only
upon clear and convincing evidence to excluding the evidence only if there
is a very substantial likelihood of misidentification. See Perry v. New
Hampshire, 132 S. Ct. 716, 733 (2012) (noting that only “the most unreliable
identifications . . . carrying a ‘very substantial likelihood of . . .
misidentification’” are to be excluded (second alteration in original)
(quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)).

¶8              In Biggers, the Supreme Court set forth factors for courts to
consider as part of the totality of the circumstances when analyzing the
reliability of an inherently suggestive identification:

1      Dessureault and earlier cases use the term “unduly suggestive” rather
than “inherently suggestive.” An inherently suggestive identification
procedure triggers the need for a reliability analysis to determine whether
the identification is admissible. See State v. Williams, 144 Ariz. 433, 440–41,
698 P.2d 678, 685–86 (1985). For clarity and consistency throughout this
opinion, we use only the term “inherently suggestive.”



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                      STATE v. ROJO-VALENZUELA
                          Opinion of the Court


       (1)    the witness’s opportunity to view the suspect at the
              time of the crime;
       (2)    the witness’s degree of attention;
       (3)    the accuracy of the witness’s prior description of the
              suspect;
       (4)    the witness’s level of certainty at the initial viewing;
              and
       (5)    the length of time between the crime and the witness’s
              identification of the defendant.

409 U.S. at 199–200; see also Lehr, 201 Ariz. at 521 ¶ 48, 38 P.3d at 1184. These
factors are not exclusive, so a court may rely on other indicia of reliability
as well. See State v. Fierro, 166 Ariz. 539, 546–47, 804 P.2d 72, 79–80 (1990)
(relying in part on extensive cross-examination of identifying witness
instead of exclusively on enumerated Biggers factors).

¶9              Rojo-Valenzuela argues that the foregoing factors require
factual assessments and credibility determinations that must be made by
the trial judge, who has the opportunity to observe the identifying witness.
He asserts that if a trial judge erroneously fails to make reliability findings,
an appellate court may not then, as the panel did here, analyze the
reliability of the identification from the record.

¶10            But Rojo-Valenzuela misunderstands the trial judge’s role in
determining the reliability, and hence the admissibility, of a suggestive
identification. Judging admissibility of identification evidence is a legal
determination, not a factual one. At the suppression hearing, the trial
judge’s role is to evaluate the reliability of the suggestive identification, not
the credibility of the witness. In making the threshold determination of
admissibility, the judge acts as a gatekeeper to withhold identification
testimony from the jury only if there is a very substantial likelihood that the
witness has misidentified the defendant. The jury then acts as the ultimate
fact-finder.

¶11           The Supreme Court explained the roles of judge and jury in
the process this way: “Short of that point [at which a very substantial
likelihood of misidentification exists], such [identification] evidence is for



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                       STATE v. ROJO-VALENZUELA
                           Opinion of the Court


the jury to weigh. . . . Juries are not so susceptible that they cannot measure
intelligently the weight of identification testimony that has some
questionable feature.” Brathwaite, 432 U.S. at 116; see also State v. Nordstrom,
200 Ariz. 229, 242 ¶ 27, 25 P.3d 717, 730 (2001) (noting that weaknesses in a
witness’s testimony go not to admissibility, but “to [the testimony’s] weight
and credibility, both matters for the jury to consider”), abrogated on other
grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012). The trial
judge—or a reviewing court—must determine only whether the witness’s
identification testimony exhibits sufficient indicia of reliability under the
totality of the circumstances to make it admissible. Simmons, 390 U.S. at
384. A trial judge’s gatekeeping role is not intended to displace the jury’s
fact-finding role, which includes assessing the weight and credibility of
testimony and resolving any evidentiary conflicts. Once the identification
is deemed admissible, “[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)
(addressing the respective roles of judge and jury in the expert testimony
context). Thus, as occurred in this case, the trial is the place for the defense
to question weaknesses in the officer’s testimony and challenge his
opportunity and ability to observe the defendant before making an
identification.

¶12            Rojo-Valenzuela concedes that both this Court and the United
States Supreme Court have conducted independent reliability analyses in
the first instance. See, e.g., Brathwaite, 432 U.S. at 114–16; Biggers, 409 U.S. at
199–201; Foster v. California, 394 U.S. 440, 442–43 (1969); Simmons, 390 U.S.
at 385–86; Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on other grounds
by Griffith v. Kentucky, 479 U.S. 314 (1987); see also State v. Cañez, 202 Ariz.
133, 150 ¶ 48, 42 P.3d 564, 581 (2002); Lehr, 201 Ariz. at 521 ¶¶ 49–51, 38 P.3d
at 1184; State v. Tresize, 127 Ariz. 571, 574–75, 623 P.2d 1, 4–5 (1980);
Dessureault, 104 Ariz. at 384–85, 453 P.2d at 955–56. He asserts, however,
that in those cases, the defendants raised the suggestive identification issue
for the first time on appeal, thereby waiving the right to have the issue
decided by a trial court.

¶13            Rojo-Valenzuela concedes, however, that in Williams, this



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                      STATE v. ROJO-VALENZUELA
                          Opinion of the Court


Court appears to have made a reliability determination in the first instance
after the trial court denied a challenge to a pretrial identification without
making reliability findings. See 144 Ariz. at 440–41, 698 P.2d at 685–86. He
argues, though, that Williams is an anomaly that we should not follow. We
disagree because Rojo-Valenzuela’s argument is based on the mistaken
premise that reliability determinations require witness credibility findings.
In this case, as in Williams, the trial court held a suppression hearing at
which the facts surrounding the pretrial identification were fleshed out,
providing the appellate court with a sufficiently developed record to permit
it to make the reliability determination.

¶14           Dessureault itself supports our conclusion that an appellate
court may make a reliability determination in the first instance. See 104
Ariz. at 383–84, 453 P.2d at 954–55 (noting that if an identification is
challenged at trial, an appellate court may affirm a conviction “if it can be
determined from the record on clear and convincing evidence that the in-
court identification was [reliable]”). Here, after evaluating Wolfe’s
testimony at the suppression hearing under the totality of the
circumstances, the court of appeals found that Wolfe’s identification of
Rojo-Valenzuela was reliable and therefore admissible. We agree that it
had before it a record sufficient to allow it to make that determination.

¶15             We emphasize that it is highly preferable for the trial court to
make reliability findings before permitting the jury to hear identification
testimony. An appellate court, however, may evaluate the identification’s
reliability if the record is sufficiently developed. Because the trial court in
this case held a Dessureault hearing, the court of appeals had a sufficient
record from which to analyze the reliability of Wolfe’s identification of
Rojo-Valenzuela. We therefore hold that the court of appeals did not err in
conducting a reliability analysis of Wolfe’s identification in the first instance
on appeal.2

2      The court of appeals “reinforce[d]” its conclusion with evidence that
the jury was shown dash-camera video footage of the suspect jumping over
the wall and instructed on the reliability of in-court identifications. Rojo-
Valenzuela, 235 Ariz. at 622 ¶ 16, 334 P.3d at 1281. We reiterate that review
of a ruling on a motion to suppress is limited to the evidence presented at



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                      STATE v. ROJO-VALENZUELA
                          Opinion of the Court


                            III. CONCLUSION

¶16          We affirm the opinion of the court of appeals and Rojo-
Valenzuela’s convictions and sentences.




the suppression hearing. See State v. Moore, 222 Ariz. 1, 7 ¶ 17, 213 P.3d 150,
156 (2009).



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