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State v. Hicks7/16/1982
Appellant, Ernest Floyd Hicks, was convicted after trial by a jury of first degree murder. Appellant was sentenced to life imprisonment. This court has jurisdiction of this appeal pursuant to A.R.S. § 13-4031. We affirm.
The essential facts are that the appellant and the victim had both been drinking at the Club 37, a bar in Tucson. Both men were regular patrons of the tavern. At about 11:00 P.M. appellant left the bar and went outside. The bartender, seeing that appellant had left his coat, called after him. Appellant said he would return shortly for his coat.
A few minutes later, the victim left the bar. Mrs. Hatfield and Mrs. Cox, also bar patrons, left a few minutes after the victim's departure. As the women reached their car, they heard the sound of a shot and watched a man walk from the victim's dump truck carrying a long-barreled gun to appellant's car. The man put the gun in the open trunk, closed it and drove away.
The women alerted the occupants of the bar who found the victim in his truck, slumped forward in the driver's seat with a gunshot wound in the back of his head behind his left ear. The police were notified and appellant was arrested several minutes later at the nearby trailer of a friend, Cathy Barrow.
Appellant raises six issues on appeal:
(1) Did the police employ an unlawful procedure by producing appellant for identification at a one-man show-up?
(2) Should evidence of the victim's good character have been excluded?
(3) Did the introduction into evidence of two photographs of the victim constitute error?
(4) Did a witness' reference to appellant's "known fingerprints" amount to reversible error?
(5) Was appellant denied a fair trial by the preclusion of expert testimony concerning alcoholic black-outs?
(6) Was appellant denied his constitutional rights by the introduction of a statement he made while intoxicated?
SHOW-UP IDENTIFICATION
Following his arrest, appellant was returned to the parking lot of Club 37. The two witnesses were brought individually to the squad car where appellant was being held. Police officers asked the witnesses to view the appellant to see whether he was the man they saw about an hour earlier walking from the victim's truck with a gun. One witness positively identified appellant as the man in the bar and the man with the gun in the parking lot. The other witness was unsure if he was the same man seen in the parking lot.
Appellant challenged the show-up procedure in a pretrial motion below and now raises the issue on appeal. The trial court denied the motion to suppress identification on the basis that no improper police conduct had been shown.
Recent cases have consistently held that a one-man show-up at the scene of the crime or near the time of the criminal act is permissible police procedure. State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981); State v. Kelly, 123 Ariz. 24, 597 P.2d 177 (1979). Although suggestiveness is inherent in a one-man show-up, a show-up identification
is admissible if the identification is reliable. State v. Tresize, 127 Ariz. 571, 623 P.2d 1 (1980); State v. Trujillo, 120 Ariz. 527, 587 P.2d 246 (1978).
The factors used to determine whether an identification is reliable were adopted from Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.
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