                                                                     FILED BY CLERK
                        IN THE COURT OF APPEALS                        DEC -6 2012
                            STATE OF ARIZONA
                              DIVISION TWO                               COURT OF APPEALS
                                                                           DIVISION TWO

THE STATE OF ARIZONA,            )
                                 )
                      Appellee, )                  2 CA-CR 2011-0169
                                 )                 DEPARTMENT A
          v.                     )
                                 )                 OPINION
NELSON E. NOTTINGHAM,            )
                                 )
                      Appellant. )
                                 )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20103680001

                      Honorable Christopher C. Browning, Judge

                           REVERSED AND REMANDED


Thomas C. Horne, Arizona Attorney General
 By Kent E. Cattani, Joseph T. Maziarz,
    and Joseph L. Parkhurst                                                     Tucson
                                                                 Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender
 By Frank P. Leto                                                            Tucson
                                                             Attorneys for Appellant


E C K E R S T R O M, Presiding Judge.
¶1            This case involves a series of convenience store robberies. Following a

retrial, appellant Nelson Nottingham was convicted of one count of robbery and two

counts of armed robbery.      He was sentenced to a combination of consecutive and

concurrent prison terms totaling 31.5 years. On appeal, Nottingham maintains the trial

court violated his right to due process by permitting the store clerks to identify him

during trial as the perpetrator, even though each had failed to do so when presented with

a non-suggestive photo lineup near the time of the respective incidents. Although we

conclude the court did not err in allowing the in-court identifications, we find it erred in

failing to instruct the jury on the reliability of such identification testimony. Because we

cannot conclude the error was harmless, we reverse Nottingham’s convictions and

remand the case for a new trial.

                          Factual and Procedural Background

¶2            We view the facts in the light most favorable to sustaining the verdicts.

State v. Powers, 200 Ariz. 123, ¶ 2, 23 P.3d 668, 669 (App.), approved, 200 Ariz. 363, 26

P.3d 1134 (2001). Within a one-week period in the summer of 2010, three separate

Tucson convenience stores were robbed.        The three store clerks who witnessed the

robberies were unable to identify Nottingham from pretrial photographic lineups shown

to them within several weeks of the respective offenses.1 In fact, two of the clerks

identified other persons as most closely resembling the perpetrator. Each clerk also was

shown surveillance videos taken from the stores at the time of the robberies. Over

       1
        Two of the clerks were shown the lineup within three weeks of the offenses, but
one clerk viewed the lineup six weeks after the offense.

                                             2
Nottingham’s objection, the clerks were allowed to identify him in court at his first trial.

In a case that focused substantially on the reliability of those identifications, the jury

could not reach a verdict.

¶3            Before his second trial, Nottingham moved to suppress any pretrial and in-

court identification based on State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969),

the Due Process Clause of the United States Constitution, and Rule 403, Ariz. R. Evid.,

contending “the show-up in the original trial was unduly suggestive.” The trial court

denied the motion, ruling that Dessureault’s procedural protections applied only to

pretrial identifications and not those that occur at trial. The court also found that, in any

event, the witnesses’ identification of Nottingham at the first trial “were not the product

of any unduly suggestive circumstances” because the witnesses had been vigorously

cross-examined by counsel and their testimony had been based on their independent

recollection of events.      Although Nottingham had requested a jury instruction that

specified the factors the jury should consider when assessing the reliability of eyewitness

identification testimony, the court did not give the instruction. On retrial, each clerk

identified Nottingham in court as the one who had committed the robbery. Nottingham

was convicted and sentenced as set forth above, and this timely appeal followed.

                                         Discussion

¶4            Nottingham argues the “circumstances surrounding the in-court trial

identifications of [him] approximately seven to eight months after the offenses by three

store clerks who failed to identify him in a photo lineup . . . create a substantial likelihood

of misidentification.” Specifically, he contends the trial court committed reversible error

                                              3
by (1) failing to hold a Dessureault hearing before the second trial, (2) admitting the in-

court identifications by the store clerks, and (3) refusing his request for a Dessureault

instruction. We review a trial court’s ruling on an in-court identification for an abuse of

discretion. State v. Leyvas, 221 Ariz. 181, ¶ 9, 211 P.3d 1165, 1168 (App. 2009). “But

we review de novo the question whether a common law procedural rule with

constitutional underpinnings, such as that set forth in Dessureault, applies to a particular

factual scenario.” Leyvas, 221 Ariz. 181, ¶ 9, 211 P.3d at 1168.

¶5            The Due Process Clause of the Fourteenth Amendment requires that pretrial

identification procedures be conducted by police in a manner that is “fundamentally fair

and secures the suspect’s right to a fair trial.” State v. Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d

1172, 1183 (2002), citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Accordingly,

Arizona courts have held that the presentation of identification evidence arising from

suggestive procedures that create “a substantial likelihood of misidentification” violates a

defendant’s right to due process. Id.

¶6            In Dessureault, our supreme court established a process for challenging

pretrial identification procedures that are “significantly suggestive and as such materially

increase[] the dangers inherent in eye witness identification.” 104 Ariz. at 383, 453 P.2d

at 954; accord Leyvas, 221 Ariz. 181, ¶ 12, 211 P.3d at 1169. That process entitles a

defendant to (1) a hearing to challenge a proposed in-court identification on the grounds

that the underlying pretrial identification process was unduly suggestive, (2) preclusion of

any in-court identification if the trial court concludes both that the pretrial identification

process was unduly suggestive and would taint any subsequent in-court identification of

                                              4
the suspect, and (3) a cautionary jury instruction if the court concludes the pretrial

identification process was suggestive but not sufficiently so to justify preclusion in light

of the circumstances of the case. Leyvas, 221 Ariz. 181, ¶ 12, 211 P.3d at 1169.2

¶7            In Dessureault, as in most cases presenting pretrial identification issues, the

identification process had been arranged by the police. 104 Ariz. at 382, 453 P.2d at 953.


       2
       The so-called Dessureault instruction requested in this case was taken from
Revised Arizona Jury Instructions (RAJI) 39, and provides as follows:

                     The State must prove beyond 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 such things as:

                     1. The witness’ opportunity to view at the time of the
                     crime;

                     2. The witness’ degree of attention at the time of the
                     crime;

                     3. The accuracy of any descriptions the witness made
                     prior to the pretrial identification;

                     4. The witness’ level of certainty at the time of the
                     pretrial identification;

                     5. The time between the crime and the pretrial
                     identification;

                     6. 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.

See State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std.
39 (3d ed. 2008).
                                             5
Here, however, we address whether a defendant is entitled to the same procedural

protections when the pretrial identification process occurs in other court proceedings and

is not arranged by the police. Nottingham maintains that the in-court identifications of

him in his first trial were conducted under unduly suggestive circumstances because

(1) the eyewitnesses had been unable to select him from a non-suggestive photo lineup

and (2) his presence as the lone non-attorney at the defense table made it clear to the

witnesses that he was the person the state suspected of committing the offenses.

Nottingham contends that these suggestive in-court identifications, which occurred at the

first trial, tainted the same identifications conducted at the second trial. And, contrary to

the trial court’s ruling, he argues there is no meaningful analytical distinction between

suggestive procedures conducted by police officers in advance of court proceedings and

those conducted by prosecutors during court proceedings in advance of trial.

¶8            His argument finds support in our state’s jurisprudence.          In 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 (1968).

Thus, our supreme court has squarely held 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. Strickland, 113 Ariz. at 447, 556

P.2d at 322. In so holding, the Strickland court reasoned, “If [an in-court] identification

                                             6
is tainted by a prior identification, whether made at a suggestive police line-up or at a

suggestive preliminary hearing, the end result is the same:          a high likelihood of

irreparable misidentification and a concurrent denial of due process of law to the

defendant.” Id.

¶9            However, the United States Supreme Court more recently has addressed the

question whether “the Due Process Clause requires a trial judge to conduct a preliminary

assessment of the reliability of an eyewitness identification made under suggestive

circumstances not arranged by the police.” Perry v. New Hampshire, ___U.S. ___, ___,

132 S. Ct. 716, 723 (2012). There, the Court observed that the “primary aim of excluding

identification evidence obtained under unnecessarily suggestive circumstances . . . is to

deter law enforcement use of improper lineups, showups, and photo arrays in the first

place.” Id. at ___, 132 S. Ct. at 726. Thus, the “deterrence rationale” does not apply

when “the police [have] engaged in no improper conduct.” Id. The Court held that

“[w]hen no improper law enforcement activity is involved, . . . it suffices to test

reliability through the rights and opportunities generally designed for that purpose,” such

as “vigorous cross-examination” at trial. Id. at ___, 132 S. Ct. at 721.

¶10           Our state supreme court’s contrary analysis in Strickland was anchored

exclusively in its understanding of the requirements of the Due Process Clause of the

United States Constitution. See 113 Ariz. at 447, 448, 556 P.2d at 322, 323. Because the

United States Supreme Court is the final arbiter of those requirements, we must conclude

Strickland has been overtaken by Perry to the extent the former case found that

subsequent in-court identifications could be precluded based on suggestive in-court

                                             7
identification procedures that did not involve “improper state conduct.” Perry, ___ U.S.

at ___, 132 S. Ct. at 728. The pretrial identification here occurred during criminal trial

proceedings, was subject therefore to all the protections therein, and was permitted and

supervised by a neutral, detached arbiter, the trial judge. Under such circumstances, the

core rationale stated in Perry for precluding certain in-court identifications—that doing

so serves the salutary function of deterring law enforcement misconduct—has no

application. Cf. United States v. Leon, 468 U.S. 897, 916-17 (1984) (deterrence rationale

inapplicable to neutral judges and magistrates). Accordingly, under Perry, the trial court

neither erred when it declined to hold a pretrial Dessureault hearing in this case nor when

it admitted the subsequent in-court identifications.

¶11           The Court’s reasoning in Perry, however, prevents us from similarly

affirming the trial court’s denial of Nottingham’s request for a cautionary instruction.

There, the Court declined to impose a prescreening requirement for certain in-court

identification evidence precisely because it trusted the “safeguards built into our

adversary system” to test the reliability of such evidence at trial. Perry, ___ U.S. at ___,

132 S. Ct. at 728. In so reasoning, the Court identified several protections providing due

process to a defendant who challenges the reliability of in-court identifications occurring

after suggestive pretrial identification procedures: among them, the Sixth Amendment

right to confront the eyewitness; the defendant’s concomitant right to effective cross-

examination of the eyewitness; and, important here, the use of “[e]yewitness-specific jury




                                             8
instructions, which . . . warn the jury to take care in appraising identification evidence.”

Id. at ___, 132 S. Ct. at 728-29.3

¶12           By its reasoning, the Court clearly assumed that trial courts would provide

cautionary instructions, alerting the jury to the dangers of identification evidence secured

through a suggestive procedure, even when the suggestive pretrial identification was not

due to “improper state conduct” and therefore was not subject to any judicial pretrial

screening to comply with due process. Id. at ___, 132 S. Ct. at 728. This approach,

which reduces the trial court’s role in assessing the reliability of witness testimony and

elevates the jury’s role, conforms to the Court’s express “recognition that the jury, not the

judge, traditionally determines the reliability of evidence.” Id. And, in observing that

such instructions were one of the primary protections defendants enjoyed under the Due

Process Clause in challenging such evidence at trial, the Court’s reasoning implies that a

trial court would err in declining to provide an instruction when presented with evidence

of any suggestive pretrial identification.

¶13           Accordingly, we conclude Perry has modified Arizona law to the extent our

courts had conditioned a defendant’s entitlement to a cautionary identification instruction

on a trial court’s formal finding that a pretrial identification procedure was “unduly




       3
        In so stating, the Court listed our own RAJI 39—the instruction Nottingham
requested be given in this case—as an example of the type of cautionary instruction that
acts as an important guarantor of due process in the trial presentation of identification
evidence. See Perry, ___U.S. at ___ n.7, 132 S. Ct. at 729 n.7.

                                             9
suggestive.”4 Instead, Perry suggests that, at minimum, a cautionary jury instruction is

required when a defendant has presented evidence that a pretrial identification has been

made under suggestive circumstances that might cause the later “eyewitness testimony

[to be] of questionable reliability.” ___U.S. at ___, 132 S. Ct. at 728.

¶14           We now turn to the question of whether Nottingham was entitled to such an

instruction here. In Arizona, a defendant generally is entitled to a jury instruction “on

any theory reasonably supported by the evidence.” State v. Axley, 132 Ariz. 383, 392,

646 P.2d 268, 277 (1982); accord State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006,

1009 (1998); cf. State v. Linden, 136 Ariz. 129, 137-38, 664 P.2d 673, 681-82 (App.

1983) (even if court denies motion to suppress statements on voluntariness grounds,

defendant entitled to voluntariness instruction “if the evidence has raised a question for

the jury”).5 In making this assessment, a court must view the evidence in the light most


       4
        Before Perry, this court had long held that defendants in Arizona were not
entitled to cautionary instructions regarding the reliability of identification evidence in
the absence of a specific finding by the trial court during a pretrial hearing that a pretrial
identification procedure had been unduly suggestive. See, e.g., State v. Machado, 224
Ariz. 343, ¶ 63, 230 P.3d 1158, 1178 (App. 2010), aff’d, 226 Ariz. 281, 246 P.3d 632
(2011); State v. Osorio, 187 Ariz. 579, 582, 931 P.2d 1089, 1092 (App. 1996), review
dismissed, 188 Ariz. 375, 936 P.2d 1269 (1997); State v. Harris, 23 Ariz. App. 358, 360,
533 P.2d 569, 571 (1975). Our supreme court, however, had never expressly adopted this
interpretation. See State v. Stow, 109 Ariz. 282, 284, 508 P.2d 1144, 1146 (1973)
(concluding, without analysis, that defendant entitled to identity instruction “if requested”
in case where Dessureault hearing held but not specifying whether trial court made
finding of undue suggestiveness).
       5
        A trial court is not required to give a proposed instruction when its substance is
covered adequately by other instructions. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d at
1009. However, the substance of the Dessureault instruction sets forth specific factors a
jury should consider in assessing the reliability of identification evidence, and none of
those factors are covered by general instructions on the burden of proof and the jury’s
                                             10
favorable to the proponent of the jury instruction. See State v. King, 225 Ariz. 87, ¶ 13,

235 P.3d 240, 243 (2010); Rodriguez, 192 Ariz. 58, ¶ 20, 961 P.2d at 1010. “If there is

evidence tending to establish the underlying theory of the instruction, the instruction must

be given and any conflict between that and other evidence must be resolved by the jury.”

Starr v. Campos, 134 Ariz. 254, 255, 655 P.2d 794, 795 (App. 1982). Applying those

standards in light of Perry’s requirements, we conclude that defendants are entitled to a

cautionary instruction when they have shown suggestive circumstances attendant to a

pretrial identification that tend to bring the reliability of the identification testimony into

question. See State v. Osorio, 187 Ariz. 579, 583, 931 P.2d 1089, 1093 (App. 1996)

(Kleinschmidt, J., dissenting) (contending if “evidence raises any issue as to the effect of

pretrial identification procedures on the in-court identification of the defendant as the

perpetrator of the crime, the defendant is entitled to have a properly instructed jury decide

that issue”).

¶15             In so concluding, we not only comply with our duty to bring Arizona

instruction practice into conformity with Perry, but also install an important procedural

remedy for the risks attendant to eyewitness testimony. Both the United States Supreme

Court and our own highest court have acknowledged these risks. See Perry, ___U.S. at

___, 132 S. Ct. at 728 (conceding “the fallibility of eyewitness identifications” and

acknowledging studies showing “eyewitness misidentifications are the leading cause of


role as fact-finder. Cf. Rodriguez, 192 Ariz. 58, ¶ 25, 961 P.2d at 1011 (characterizing
general instructions about burden of proof as “poor substitute for a properly supported
alibi instruction”). General instructions do not “warn the jury to take care in appraising
identification evidence.” Perry, ___U.S. at ___, 132 S. Ct. at 728-29.
                                              11
wrongful convictions”); United States v. Wade, 388 U.S. 218, 228 (1967) (noting pretrial

eyewitness identifications arranged by state “peculiarly riddled with innumerable dangers

and variable factors,” which contribute to “the high incidence of miscarriage of justice

from mistaken identification”); State v. Chapple, 135 Ariz. 281, 293, 660 P.2d 1208,

1220 (1983) (“[T]he law has long recognized the inherent danger in eyewitness

testimony.”). In 1983, our state supreme court observed, “Experimental data indicates

that many jurors ‘may reach intuitive conclusions about the reliability of [such] testimony

that psychological research would show are misguided.’” Chapple, 135 Ariz. at 293, 660

P.2d at 1220, quoting Note, Did Your Eyes Deceive You? Expert Psychological

Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969, 1017

(1977) (alteration in Chapple). And, as Justice Sotomayor emphasized in Perry, in a

portion of her dissent embraced by the majority, contemporary research has not

contradicted that observation:

                      The empirical evidence demonstrates that eyewitness
              misidentification is “‘the single greatest cause of wrongful
              convictions in this country.’” Researchers have found that a
              staggering 76% of the first 250 convictions overturned due to
              DNA evidence since 1989 involved eyewitness
              misidentification.     Study after study demonstrates that
              eyewitness recollections are highly susceptible to distortion
              by postevent information or social cues; that jurors routinely
              overestimate the accuracy of eyewitness identifications; [and]
              that jurors place the greatest weight on eyewitness confidence
              in assessing identifications even though confidence is a poor
              gauge of accuracy . . . .

___U.S. at ___, 132 S. Ct. at 738-39 (Sotomayor, J., dissenting) (citations omitted); see

also ___U.S. at ___, 132 S. Ct. at 728 (majority acknowledging same concern and citing


                                            12
this portion of dissent). Given the risks of misidentification, our trial courts will provide

important assistance to jurors by instructing them appropriately on factors to consider in

evaluating identification evidence.

¶16           Applying the above standards to the facts here, there can be little dispute

that Nottingham was entitled to have the jury instructed as he requested. Indeed, in

Strickland, our supreme court squarely found an in-court pretrial identification, occurring

under very similar circumstances, unduly suggestive. Cf. 113 Ariz. at 446, 447-48, 556

P.2d at 321, 322-23 (victim unable to identify defendant at live lineup or photo lineup,

chose different individual at lineup, then identified defendant at preliminary hearing

when “[i]t was apparent who[m victim] would have to ‘identify,’” partly because

defendant seated at defense table).       And, although, as we have concluded today,

Strickland has been modified by Perry, nothing in Perry overrules our supreme court’s

conclusion that those circumstances were suggestive. To the contrary, the Court in Perry

starkly observed that, “all in-court identifications” involve an element of suggestion.

___U.S. at ___, 132 S. Ct. at 727; see also Stovall v. Denno, 388 U.S. 293, 302 (1967)

(“The practice of showing suspects singly to persons for the purpose of identification, and

not as part of a lineup, has been widely condemned.”), overruled on other grounds by

Griffith v. Kentucky, 479 U.S. 314 (1987); State v. Cañez, 202 Ariz. 133, ¶ 47, 42 P.3d

564, 581 (2002) (“Single person identifications are inherently suggestive.”); State v.

Williams, 144 Ariz. 433, 441, 698 P.2d 678, 686 (1985) (concluding “one-man show-ups

are inherently suggestive”); State v. Hicks, 133 Ariz. 64, 67-68, 649 P.2d 267, 270-71

(1982) (“[S]uggestiveness is inherent in a one-man show-up . . . .”); State v. Ware, 113

                                             13
Ariz. 337, 339, 554 P.2d 1264, 1266 (1976) (single photo show-up “unduly suggestive”).

Because the in-court identifications of Nottingham by the three witnesses at the first trial

were each, in essence, “one-man show-ups,” and because the reliability of the in-court

identifications at both trials reasonably could be questioned in light of the inability of

those same witnesses to identify Nottingham in non-suggestive photo lineups nearer the

time of the incidents, we conclude Nottingham presented evidence which would tend to

bring the reliability of identification testimony at the second trial into question.

Accordingly, the trial court erred in denying his request to have the jury instructed

pursuant to RAJI 39.

¶17           That error, however, is not dispositive; we analyze a court’s improper

refusal to give a requested instruction for harmless error. State v. Marshall, 197 Ariz.

496, ¶ 33, 4 P.3d 1039, 1048 (App. 2000). If the state can show beyond a reasonable

doubt that the error did not affect the verdict, the error is harmless. State v. Anthony, 218

Ariz. 439, ¶ 39, 189 P.3d 366, 373 (2008). Here, the state had little physical evidence

linking Nottingham to the crimes.6 Thus, the primary issue in the case was whether he

could be identified visually as the perpetrator from the surveillance videos and the

witnesses’ in-court identifications of him.          The reliability of the eyewitness

identifications of Nottingham therefore was a large part of the state’s case and was

meaningfully contested. Under such circumstances, we cannot dismiss the possibility


       6
        Although the state contended the shoes taken from Nottingham when he was
arrested appeared to be the same as the shoes worn by the perpetrator, visible in two of
the surveillance videos, this was arguably another type of identification evidence.

                                             14
that the jury might have come to a different conclusion had they been instructed properly.

Cf. State v. Abdi, 226 Ariz. 361, ¶ 17, 248 P.3d 209, 214 (App. 2011) (finding reversible

error in improper jury instruction going to “heart of [defendant’s] case” when issue at

core of instruction “not overwhelmingly proven by the evidence”). The prior mistrial

occurring on the same evidence only reinforces this conclusion. The error therefore was

not harmless.

                                       Disposition

¶18             For the foregoing reasons, we reverse Nottingham’s convictions and

sentences and remand the case for a new trial.


                                             /s/ Peter J. Eckerstrom
                                             PETER J. ECKERSTROM, Presiding Judge

CONCURRING:


/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge*




*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a
judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order
filed August 15, 2012.

                                           15
