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State v. Hicks7/16/1982
Ed.2d 401 (1972). State v. Tresize, supra; State v. Trujillo, supra. They are: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated by the witness at the identification; and (5) the length of time between the crime and the confrontation.
The identifying witness had ample opportunity to view the man with the gun as he walked from the victim's truck, placed the shotgun in the trunk of a car and looked around before getting in the car. The parking lot was well lit. The witness stated that her attention had been drawn to the man by the sound of the shot, and she was intent upon watching him leave. The witness testified that she positively recognized the man with the gun to be the same man she had seen inside the Club 37 minutes before. She was positive in her identification of appellant in the squad car. The show-up confrontation occurred only about an hour after the crime and in the same place that the observations were originally made. In the totality of the circumstances, we find that the identification was reliable. There was no error in the trial court's refusal to suppress the evidence obtained at the show-up identification shortly after the murder.
EVIDENCE OF VICTIM'S CHARACTER
The appellant claims that there was error in the admission of evidence showing the peacefulness of the victim. The state argues that objection to the evidence was waived and the defense raised the issue initially.
Defense counsel did remark to the jury in his opening statement that:
Cathy Barrow knew [the victim], had had problems with him in the past. He was a loudmouth. She characterized him as obnoxious, a cutting-type person.
The prosecution apparently sought to anticipate a defense of self-defense. The prosecutor asked four witnesses, all patrons or employees of the Club 37, whether the witnesses had ever seen the victim quarrel or engage in physical violence with anyone at the bar. Defense counsel allowed all but the third inquiry to pass without objection, and his relevancy objection to the third inquiry was overruled. All of the witnesses testified that they had never seen the victim become physically violent, and only one witness had seen him argue with people in the bar.
The defense counsel's objection to the testimony of the third witness concerning the character of the victim should have been sustained. Rule 404(a), Rules of Evidence, 17A A.R.S. sets forth the limited circumstances when the character of the victim is relevant. It provides in part:
Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor[.]
In the instant case, the defense had introduced no evidence of the victim's character for the state to rebut. Whatever the defense counsel had in mind by the reference to the victim's nature was never developed in the defense case. We do not believe this remark opened the door for the state to present evidence on the issue. The defense did not follow up with any evidence tending to support the remark in the opening statement. Self-defense was not raised at trial and there was no evidence that the
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