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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                FRANKLIN ARNETT CLIFTON, Appellant.

                             No. 1 CA-CR 16-0834
                               FILED 1-11-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-108924-001
                 The Honorable M. Scott McCoy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                            STATE v. CLIFTON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge James B. Morse Jr. joined.


C A M P B E L L, Judge:

¶1            Franklin Arnett Clifton appeals his convictions and sentences
for a single count of drive-by shooting and two counts of aggravated
assault. Clifton argues (1) the superior court abused its discretion in
admitting opinion testimony from a detective because it went to the
ultimate issue, usurping the role of the jury, and (2) the court erred by ruling
that the pretrial identification of the defendant was not conducted in an
unduly suggestive manner. Because no reversible error occurred, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             In February 2013, four friends—D.A. (“Driver”), L.G.
(“Passenger”), and two others—were at a hookah lounge together when it
closed at 2:00 a.m. They all left in the same car. While waiting to turn left at
an intersection, a truck pulled up behind them and began revving its engine
and honking its horn. When the light turned green, Driver made the left
turn, immediately moving into the middle lane to allow the truck to pass.
The truck, however, did not pass, but continued to tail them. After hearing
what “sounded like a rock” hitting the car, they realized the noise was
gunfire. The truck then pulled in front of their car and stopped, forcing
Driver to stop as well. The driver of the truck fired at their car again, and
Passenger saw the truck’s driver lean out of his window. She described him
as a “[h]eavyset, African-American male” holding what she thought was a
“Glock.” Passenger also described the truck as a “black, lifted truck with
white stickers on the back window and Utah plates.” Driver described the
truck as “tall, black lifted, chrome,” with decals on its windows and an
orange or red license plate. The truck then made a U-turn and drove away.
Driver “booked it” away from the scene and Passenger called 9-1-1.

¶3            Two police officers were patrolling nearby when they heard
the gunshots. Passenger had provided a description of the pickup truck to
the radio dispatch operator. A sergeant communicated over the radio that
he had seen a matching vehicle parked on a nearby street. Officers went to


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                            STATE v. CLIFTON
                            Decision of the Court

that location and saw the truck backed into a driveway. They approached
the house, and Clifton came outside. The officers spoke with Clifton, and
he identified the black Dodge Ram with a Utah license plate parked in the
driveway as his. Clifton at one point said he had been at a bar and only
arrived home about one minute before the officers had arrived, but told
another officer he had been home for 45 minutes. One of the officers also
felt the hood of the truck and found that it was warm to the touch.

¶4            Days later, officers approached the same house in order to
arrest Clifton. After setting up surveillance around the residence, they
watched Clifton walk outside with a pack of cigarettes. Clifton stood behind
the tailgate area of the parked black Dodge Ram and smoked a cigarette.
The officers converged and arrested Clifton, also seizing a Ruger .44
Magnum revolver found on top of the open tailgate beside his cigarette
pack.

¶5             Passenger identified Clifton in a photographic lineup prior to
trial, and testified about that identification at trial. Also at trial, the jury
heard testimony from a forensic firearm examiner who determined, after
testing, that the bullet fired into Driver’s car came from the Ruger .44
Magnum revolver in Clifton’s immediate vicinity at the time of his arrest.
A police officer testified that, after searching the truck at the time of arrest,
they found a speed-loader for the revolver and a Ruger handgun box
imprinted with Clifton’s name and the gun’s serial number. A detective also
testified that Clifton’s truck was a “[l]ifted, black in color, Dodge 1500
pickup truck” with “stickers in the rear window” and a “red and orange
type” Utah license plate.

¶6             The State charged Clifton with one count of drive-by
shooting, a class 2 dangerous felony, and two counts of aggravated assault,
class 3 dangerous felonies. Clifton’s first trial ended in a mistrial; prior to
retrial, Clifton moved for a Dessureault hearing challenging Passenger’s
pretrial identification. See State v. Dessureault, 104 Ariz. 380, 384 (1969).
Following an evidentiary hearing, the court denied Clifton’s request to
preclude the identification. After the retrial, the jury found Clifton guilty of
all three counts. The court sentenced Clifton to an aggravated term of 13
years in the Department of Corrections on the drive-by shooting count, to
run concurrently with consecutive presumptive terms of 7.5 years on both
counts of aggravated assault.




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                          Decision of the Court

                             DISCUSSION

I.    Opinion Testimony

¶7           During trial, the following exchange took place between the
State and the case’s lead detective—Detective Darby—during redirect
examination:

      Q: You were repeatedly asked questions about an alleged
      shooting. Do you recall those just before lunch?

      A: I do.

      Q: In fact, regarding “alleged,” did you discover and
      investigate a shooting that actually happened the morning of
      February 8th, 2013?

      A: Yes, a shooting did occur.

      Q: Nothing alleged about it; correct?

      A: Nothing alleged about it.

      Q: In fact, two of your co-workers independently heard the
      sound of gunfire; correct?

      A: They did.

      Q: And even taking the 911 call out of it, your system reported
      residents calling in with the sounds of gunfire?

      A: Yes, ma’am.

      Q: Now, through the course of the investigation, the police
      were able to determine that it was the defendant’s black
      pickup truck that was involved in the shooting; correct?

      A: Yes.

      Q: And that the defendant was the driver of the black pickup
      truck at the time of the shooting?

      A: Correct.




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                     STATE v. CLIFTON
                     Decision of the Court

Q: And that it was the defendant’s revolver, the .44 Magnum,
that was the gun used to shoot at [Driver] and [Passenger]
inside the car; correct?

A: Yes.

Q: And that the defendant was the shooter; correct?

A: Yes.

...

[Defense counsel]: Objection.

...

[Defense counsel]: It’s -- at this point she’s basically
presenting his opinion about the charges in this case and how
he can comment on the evidence and which charges would fit
the evidence, and so I object. This, the whole line of
questioning, not just this part.

[State]: Judge, I didn’t mention charges. . . . I told the Court if
the defense went there, because they kept -- in spite of the
record I made this morning, the detailed record, the record I
made last week, we’re still having inappropriate allegations
of alleged shooting and alleged complaining witnesses. . . . I
didn’t say charging. It’s appropriate. It’s redirect. They
opened the door.

[The court]: I’m going to overrule the objection.

...

[Defense counsel]: And I guess I want to, with all due respect,
make the record complete.

...

It’s up to the jury to decide whether or not the State’s met their
burden in this case beyond a reasonable doubt. For the State
to basically spoon-feed the jurors this is no longer alleged, it
is what it is, is having the detective make an inappropriate
comment on the evidence in this case and the nature of the



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                             STATE v. CLIFTON
                             Decision of the Court

       evidence that they’ve presented in this case. And so that’s
       why I’m objecting.

¶8            Clifton argues the trial court abused its discretion by allowing
the State’s witness to testify that the drive-by shooting and Clifton’s
involvement were facts rather than allegations. He contends this was
improper lay witness opinion testimony that instructed the jury on how to
decide the case. We review a trial court’s ruling on the admission or
exclusion of evidence for an abuse of discretion. State v. Dann, 220 Ariz. 351,
365, ¶ 66 (2009).

¶9             “If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is: (a) rationally based on the
witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.”
Ariz. R. Evid. 701; see also State v. Peltz, 242 Ariz. 23, 29, ¶ 17 (App. 2017)
(“[W]hen a lay witness is drawing a reasonable inference from [the
witness’s] own firsthand knowledge and perceptions of a situation, the
witness is competent to voice [the witness’s] opinion . . . even as to the
ultimate issue.”) (citations omitted). While witnesses “are not permitted as
experts on how juries should decide cases,” Ariz. R. Evid. 704 cmt. (1977),
an opinion is not objectionable “just because it embraces an ultimate issue,”
Ariz. R. Evid. 704(a). Generally, however, a witness may not indicate his
belief in a defendant’s guilt. State v. Williams, 133 Ariz. 220, 228 (1982)
(citation omitted).

¶10           Clifton acknowledges that Darby’s statements “may have
been based, in part, on his perceptions as an investigator,” but argues that
“[t]elling the jury that the elements of the charged offenses were
conclusively proven did nothing to help the jury understand his
testimony.” Regardless of whether this was improper lay witness
testimony, however, any abuse of discretion on the part of the superior
court in allowing this testimony was harmless error. See State v. Sosnowicz,
229 Ariz. 90, 98, ¶ 27 (App. 2012) (even when testimony is erroneously
admitted, we will affirm the verdict if the error was harmless) (citation
omitted). Error is harmless if the State, “in light of all of the evidence, can
establish beyond a reasonable doubt that the error did not contribute to or
affect the verdict.” State v. Valverde, 220 Ariz. 582, 585, ¶ 11 (2009) (citations
omitted).

¶11            Applying this standard here, even assuming that the
detective’s testimony was improper, any error was harmless. The offending


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                            STATE v. CLIFTON
                            Decision of the Court

portion of Detective Darby’s testimony was a relatively brief exchange in
the course of an 11-day trial. The jury was instructed about its role as the
sole judge of the facts, the presumption of innocence, and that the charges
are not evidence. We presume that jurors follow the court’s instructions. See
State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Furthermore, the jury heard
testimony from multiple victims identifying the truck parked in the
driveway as the vehicle involved in the shooting. Multiple police officers
testified about hearing gunshots and finding that truck shortly thereafter.
Clifton identified himself as the owner of that truck. An officer also testified
that the hood of the truck was still warm when they arrived at the scene,
indicating that it had recently been operated. One of the victims testified
that she identified Clifton in a pretrial photographic lineup. The jury also
heard forensic testimony that a specific handgun in Clifton’s immediate
vicinity at the time of his arrest was the gun that fired the bullet found in
Driver’s car.

¶12           In the face of such overwhelming evidence against the
defendant, the jury would have found Clifton guilty even without the
admission of Detective Darby’s testimony. See, e.g., State v. Poyson, 198 Ariz.
70, 77-78, ¶ 22 (2000). We conclude that the jury verdicts were “surely
unattributable” to any possible discretionary error and therefore Detective
Darby’s testimony constituted harmless error. See Valverde, 220 Ariz. at 585,
¶ 11.

II.    Pretrial Identification

¶13           Eleven days after the incident, Sergeant Daukas met with
Passenger to see if she could identify a suspect from a photographic lineup.
Daukas prepared a grayscale six-photograph lineup that included Clifton
and five other individuals. Daukas selected the other five photos through
the police department’s “crime capture system,” choosing photos to “best
match the person of interest” based on the same physical characteristics,
including “anything from facial structure to overall body build, size, shape,
anything that could be used to make as similar pictures as possible.” The
computer randomly selected Clifton’s photo to appear in the second
position in the lineup.

¶14           Daukas gave Passenger a written admonition, which
cautioned that this “group of photographs may or may not contain a picture
of the person who committed a crime now being investigated.” The
admonition also instructed, “[w]hen you have looked at all the photos, tell
me whether or not you see the person who committed the crime.” Daukas
directed Passenger to “read through this, and when you’re done reading


                                       7
                            STATE v. CLIFTON
                            Decision of the Court

this, go ahead and tell me if you have any questions.” Passenger read the
admonition to herself and signed it.

¶15            Daukas told Passenger to first get a mental picture of the man
who had leaned out of the truck’s window. He placed the lineup in front of
her upside-down, telling her to turn the lineup over when she was ready
and point out the man if she saw him. Passenger initially remarked that
they “all look the same,” but then quickly eliminated photos 1, 4, 5, and 6.
Indicating that she was deciding between photos 2 and 3, Daukas asked
Passenger what about the two photos was drawing her attention. She
replied that “they are a little chubbier” and that the head shape was not like
those in the eliminated photos. After about ten seconds of silence, Passenger
repeatedly tapped the second photo and said, “I keep looking at him.”
Daukas asked if she meant number two, to which she responded, “Yeah.”
Daukas asked if she thought he was the man who had leaned out of the side
of the car, and Passenger replied, “It looks like him.” Daukas then asked
her to sign her name on the line under the second photo to indicate her
selection. After she had done so, Daukas questioned Passenger on whether
she had seen the person she had indicated since the shooting or had any
contact from anyone about the situation. After she replied in the negative,
Daukas asked if she had any questions for him and then said, “All right,
pretty easy, right? . . . We’re all done, I have nothing else.”

¶16           After holding a Dessureault hearing, the superior court denied
Clifton’s motion to suppress Passenger’s pretrial identification. See
Dessureault, 104 Ariz. at 384 (the trial court must conduct an evidentiary
hearing when a pretrial identification is challenged). The court held that the
procedure was not suggestive, and therefore did not reach a ruling on the
identification’s reliability. On appeal, Clifton now argues that Passenger’s
pretrial identification was not only unduly suggestive but also unreliable
and should have been suppressed.

¶17           We review the superior court’s ruling on the pretrial
identification for abuse of discretion. State v. Moore, 222 Ariz. 1, 7, ¶ 17
(2009). We defer to the superior court’s findings of fact if those findings are
supported by the record and not clearly erroneous, but “the ultimate
question of the constitutionality of a pretrial identification” is “a mixed
question of law and fact” that we review de novo. Id. (citation omitted).

¶18              The Due Process Clause of the Fourteenth Amendment to the
United States Constitution requires pretrial identification procedures to be
conducted in a fundamentally fair manner that secures the suspect’s right
to a fair trial. State v. Lehr, 201 Ariz. 509, 520, ¶ 46 (2002) (citing Manson v.


                                       8
                             STATE v. CLIFTON
                             Decision of the Court

Brathwaite, 432 U.S. 98, 114 (1977)), supplemented by State v. Lehr, 205 Ariz.
107 (2003). “It is the likelihood of misidentification which violates a
defendant’s right to due process.” Neil v. Biggers, 409 U.S. 188, 198 (1972).
Even an overly suggestive pretrial identification procedure will not bar the
admission of the identification if the identification is still reliable in spite of
any suggestiveness. Lehr, 201 Ariz. at 520, ¶ 46. There is therefore a two-
part test for determining admissibility: “(1) whether the method or
procedure used 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. (citations omitted).

¶19            In determining whether the method or procedure used was
so suggestive as to violate a defendant’s due process rights, we look to the
totality of the circumstances. State v. Rojo-Valenzuela, 237 Ariz. 448, 450, ¶ 6
(2015). The allegedly offending circumstances to which Clifton points all
concern Daukas’ conduct during the procedure, rather than anything about
the photo lineup itself: He claims Daukas should have read the admonition
aloud to Passenger to “ensure she understood it,” and should not have used
grayscale photos. He also contends that Daukas interrupted Passenger’s
deliberation, confirmed her selection before she had definitively decided,
and then congratulated her on her choice.

¶20            Despite Clifton’s characterization of the procedure, we agree
with the superior court: “Here, police randomly placed Defendant’s recent
photograph in an array of six subjects. [Passenger] in short order eliminated
all but two of the persons identified and, after some deliberation and
without prompting, identified the Defendant as the person who shot at
their automobile.” Clifton offers no reason why grayscale photographs are
inappropriate, or why reading the admonition aloud to Passenger would
have been preferable to allowing her to read it herself to ensure
understanding. The photographs were selected based on the “same
physical characteristics,” so much so that Passenger immediately remarked
on how “they all look[ed] the same”—but she nevertheless quickly
eliminated four of the six photos. Then, after silently deliberating without
interruption, she indicated the photo in position two. Daukas then simply
confirmed that number two was her selection and that she believed that
was the man who had shot at them. Daukas’ comment that it had been
“pretty easy, right?” did not seem designed to congratulate Passenger on
that selection, but rather to put her at ease in general.

¶21            The superior court did not abuse its discretion in finding that
the pretrial identification procedure was not unduly suggestive. See State v.
Taylor, 27 Ariz. App. 330, 332-33 (App. 1976) (when appellant did not


                                        9
                           STATE v. CLIFTON
                           Decision of the Court

contend selection of photographs was unduly suggestive and the officer did
nothing to suggest which photo was the appellant, the identification
procedure was not unduly suggestive). Like the superior court, we
therefore need not proceed to analyzing the identification’s reliability. See
Perry v. New Hampshire, 565 U.S. 228, 240-41 (2012) (the due process check
for reliability comes into play only when an unnecessarily suggestive
identification procedure was used).

                              CONCLUSION

¶22          For the foregoing reasons, we affirm the decision of the
superior court.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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