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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 35827

STATE OF IDAHO,

) ) Plaintiff-Respondent, ) ) v. ) ) HECTOR B. ALMARAZ, JR., ) ) Defendant-Appellant. ) ) ) _______________________________________ )

Boise, September 2011 Term 2013 Opinion No. 41 Filed: April 1, 2013 Stephen W. Kenyon, Clerk SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION FILED ON MAY 31, 2012 IS HEREBY WITHDRAWN

Appeal from the District Court of the Third Judicial District of the State of Idaho, Payette County. Hon. Gregory M. Culet, District Judge. The judgment of conviction is vacated and a new trial is ordered. Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Jason Pintler argued. Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth Jorgensen argued. _______________________ BURDICK, Chief Justice Hector Almaraz appeals from his conviction for first-degree murder. He appeals based on several evidentiary grounds. First, he argues that the district court abused its discretion by admitting impermissible character evidence that gang members commit crimes and other violent acts and by admitting improper testimony from a police officer and an expert witness interpreting the security video from the scene of the crime. Almaraz also argues that the district court erred in failing to suppress an eyewitness identification due to suggestive procedures, and by precluding an expert from opining to the suggestiveness of a specific eyewitness' identification. Finally, he contends that the cumulative effect of the errors deprived him of a fair trial, and that 1

this Court should remand the case to the district court for a new trial. We vacate Almaraz's conviction and remand for a new trial. I. FACTUAL AND PROCEDURAL BACKGROUND Hector Almaraz and Thomas Salazar, both members of the gang Brown Magic Clique ("BMC"), attended the Club 7 bar on April 23, 2006. The bar was equipped with sixteen video surveillance cameras which showed that a fight erupted after Almaraz punched another patron, Gabriel Flores. Just thirty seconds after the brawl began, the video cameras depict Flores flailing his arms in the air and stumbling to the ground. Although the video does not clearly portray the shooting or identify any patron with a gun, it does show Almaraz behind Flores just before he was shot. Flores died in the hospital as a result of a gunshot wound to his back. Almaraz was subsequently charged with first-degree murder in the shooting death of Flores. Ken Hust was a patron at the Club 7 bar on the night of the shooting. Three days after the shooting, Hust met with police about the events of that evening. Hust was initially apprehensive and reluctant to speak with the police. At first, Hust told police officers that he did not see the shooter. In an effort to calm Hust's fears and encourage him to talk, the officer conducting the interview, Officer Sloan, told Hust "we caught the guy that did the shooting." Hust then explained that he might be able to recognize the shooter if he saw his face. Officer Sloan left the interview room to retrieve a photo to be used as a photographic lineup and turned off the tape recorder. Officer Sloan testified that upon returning with the photograph, Hust's face went blank as if he had seen a ghost and identified Almaraz without hesitation. The photograph obtained by Officer Sloan and presented to Hust was not a typical photo lineup. Instead of several discrete pictures of different individuals, the photo used was a group photograph of Almaraz and seven other Hispanic men. Almaraz is in the center of the photo with a chandelier hanging directly above his head. Before trial, the defense moved to suppress Ken Hust's eyewitness identification arguing that the overly suggestive procedures the police used to obtain the identification violated Almaraz's due process rights. Specifically, Almaraz argued that Hust's identification was

unreliable because of Officer Sloan's interview procedures, the suggestiveness of the group photograph used as the "photographic lineup," and Hust's lack of opportunity to adequately observe the shooter at the time of the incident. The district court denied Almaraz's motion to suppress. The district court allowed the defense to present expert testimony from Dr. Daniel 2

Reisberg, a cognitive psychologist, about the types of suggestive procedures that can render an eyewitness identification unreliable. In his testimony before the jury, Dr. Reisberg identified proper guidelines regarding witness interviews and identified specific types of police conduct that could compromise a witness's memory. The court allowed Dr. Reisberg to testify

specifically about the suggestiveness of the group photograph the police showed to Hust, but not about the suggestiveness of Officer Sloan's interview procedures. Also prior to trial, the State filed a motion in limine seeking to admit evidence at trial of Almaraz's gang affiliation and the criminality of BMC generally under I.R.E. 404(b) to support its theory of motive. The State argued that the shooting was not merely a random killing, but that Almaraz shot Flores because of gang rivalry. The State asserted that Flores was shot because he was wearing a red jersey, which symbolized the color of a rival gang. Almaraz objected to such testimony during the pre-trial hearing and at trial on the ground that its probative value was substantially outweighed by its prejudicial effect. The district court ruled that evidence of Almaraz's gang affiliation was relevant to the issue of motive and, after applying a balancing test, the court found that the probative value was not outweighed by the prejudicial effect. The district court allowed Tommy Salazar and another former member of BMC, Armando (Milo) Landin, to testify about the criminality of BMC. Landin testified that BMC's criminal purpose was "basically selling drugs and violence." Salazar testified about Almaraz's membership in BMC, general criminal conduct of BMC gang members, and the events that took place with Almaraz on the night that Flores was killed. Specifically, Salazar testified that the colors blue and brown symbolized membership in BMC and that the color of one of the gang's rivals was red. When recalling the details leading up to the fight, Salazar, who was standing near Almaraz in the bar, testified that Almaraz asked Flores why he was wearing a red shirt and inquired about which gang Flores claimed. Flores explained that he was not representing any gang, but simply liked the red Chicago Bulls jersey he was wearing. According to Salazar, Almaraz then asked Flores to remove the jersey. When Flores refused to take off his red jersey, a fight immediately broke out, which ended when Flores was shot in the back. The State then presented Officer Jason Cantrell to testify as an expert on gangs. Officer Cantrell testified about the criminal and violent crimes generally committed by street gangs. His testimony was not specifically related to BMC or any of its members. Almaraz objected to the 3

State calling Officer Cantrell as an expert on "what gang life is like" in general. After the court allowed Officer Cantrell to give his expert opinion testimony about gangs, the defense moved for a mistrial, or alternatively to have the entire testimony stricken from the record, arguing that the State failed to prove that BMC was in fact a criminal street gang with the primary purpose to commit crimes. The State called Lieutenant Stephanie Steele, an officer who was called to duty on the night of the shooting, to review the bar's surveillance video tapes. The defense objected to Lieutenant Steele's characterization of the video when she testified, on re-direct examination, that Almaraz appeared to be in what she called a "shooter's crouch" just before Flores was shot. The defense argued that such an interpretation invaded the province of the jury. The State also called Grant Fredericks to testify as a video expert to assist the jury in accurately interpreting the bar's surveillance videos from the night of the murder. When

testifying to his impression of optimized versions of the surveillance videos, the State asked Fredericks if he had formed an opinion about when Flores was shot. The defense objected, arguing that Fredericks' background in analyzing hundreds of videos was not a sufficient foundation to testify about a person's physiological reaction to being shot. The defense further argued that the question went to the ultimate issue of the case and thereby invaded the province of the jury. The district court allowed Fredericks to give his opinion about the particular video frame that depicts the victim's response to being shot. The jury returned a verdict that Almaraz was guilty of first-degree murder. On

September 26, 2008, Almaraz was sentenced to life imprisonment with 40 years fixed. Almaraz filed a motion for a new trial which was subsequently denied by the district court. Almaraz timely filed a notice of appeal against his conviction and sentence on October 31, 2008. II. ISSUES ON APPEAL 1. 2. 3. Whether the district court abused its discretion by allowing the jury to hear character evidence regarding the criminality of BMC and the criminality of gangs generally. Whether the district court erred in failing to suppress Hust's eyewitness identification as unreliable due to suggestive practices used by the police. Whether the district court abused its discretion by preventing the defense expert, Dr. Reisberg, from testifying about the specific interview procedures used by the police during Hust's eyewitness identification.

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Whether the district court abused its discretion by allowing Lieutenant Steele's testimony interpreting the surveillance video and describing Almaraz's stance just before Flores was shot as a "shooter's crouch." Whether the district court abused its discretion in finding the State laid a proper foundation to support admitting the testimony of Grant Fredericks, a video expert, regarding the precise moment Flores was shot. III. STANDARD OF REVIEW This "Court reviews a trial court's decision admitting or excluding evidence, including

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the testimony of expert witnesses, under the abuse of discretion standard." White v. Mock, 140 Idaho 882, 888, 104 P.3d 356, 362 (2004). "A trial court does not abuse its discretion if it (1) recognizes the issue as one of discretion, (2) acts within the boundaries of its discretion and applies the applicable legal standards, and (3) reaches the decision through an exercise of reason." Fazzio v. Mason, 150 Idaho 591, 594, 249 P.3d 390, 393 (2011). IV. ANALYSIS A. The District Court Did Not Abuse Its Discretion in Admitting Evidence About the Criminality of Gangs Almaraz argues that the district court erred by admitting evidence regarding the criminal conduct of BMC members and of street gangs in general as impermissible character evidence. The State first argues that Almaraz did not preserve this issue for appeal because he only objected generally to the admission of evidence relating to his membership in a criminal gang, not to the evidence of other BMC members' acts or general gang activity. The State then argues that the district court correctly admitted the testimony of Salazar, Landin, and Officer Cantrell to show motive. Almaraz sufficiently objected to both the introduction of Officer Cantrell's testimony and that of Salazar and Landin to preserve these issues for appeal. Generally, this Court will not consider issues on appeal that were not raised below. State v. Danney, 153 Idaho 405, ___, 283 P.3d 722, 725 (2012). Both parties addressed the issue of admitting evidence of BMC's criminal conduct at the pre-trial hearing on the State's motion in limine. The State presented the

testimony regarding the criminal activity of BMC under the guise of I.R.E. 404(b) and argued that the evidence was relevant to Almaraz's motive. The defense objected to this testimony as unfairly prejudicial because of a fear that prior bad acts or wrongs associated with gang activity would be used for propensity purposes, which would substantially outweigh any probative value.

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The defense objected to Officer Cantrell's expert testimony at trial on I.R.E. 404(b) grounds. The Court heard argument from both parties on this issue outside the presence of the jury. It is clear from the defense's argument that the objection to Officer Cantrell's testimony about gang life was made out of a concern that the evidence would in fact be used for propensity purposes. The defense also argued that this evidence was not even relevant, because none of these general gang activities were tied to Almaraz. Therefore, Almaraz sufficiently objected to the State's evidence of other BMC members' acts and of general gang activity as unfairly prejudicial character evidence to preserve these issues for appellate review. Generally, character evidence is not permissible to prove a person acted in conformity therewith. I.R.E. 404(a). Furthermore, evidence of other crimes, wrongs, or acts is also not admissible to prove criminal propensity. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009); see I.R.E. 404(b). However, evidence of other crimes, wrongs, or prior acts may be admissible if offered to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." I.R.E. 404(b). The admissibility of prior bad acts is subject to a two-pronged analysis. State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007). First, the court must determine whether the prior wrong or bad act is relevant to a material issue other than the defendant's character or propensity to commit the crime charged. Id. Second, the court must perform a balancing test to determine whether the probative value of the bad act is substantially outweighed by the danger of unfair prejudice. Id.; see also I.R.E. 403. The trial court's determination regarding the danger of unfair prejudice is discretionary and will not be disturbed on appeal unless it is shown to be an abuse of discretion. Id.; State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991). 1. Both the criminal conduct of BMC and the criminal conduct of gangs generally are relevant to proving motive.

The district court properly used its discretion to admit the testimony of Salazar and Landin to support the State's theory that Almaraz was motivated to kill Flores because of a gang rivalry. On appeal, it is undisputed that evidence of Almaraz's membership in the BMC gang was properly admitted under I.R.E. 404(b) to demonstrate motive. This Court further holds that the testimony from Salazar and Landin regarding the criminal and violent conduct of BMC members was also properly admitted. Such evidence is relevant to explain how gang rivalries can often lead to violence and retaliation. Salazar and Landin provided specific examples of prior crimes that BMC members had committed. The defense argues that such evidence of prior 6

bad acts is improper character evidence under I.R.E. 404(b) because the testimony is about other members' bad acts and is not specifically related to Almaraz. The fact that the conduct was not related to Almaraz shows it was not offered to prove his character but only to prove motive. This testimony is relevant under I.R.E. 401 and I.R.E. 402 because it illustrates how something as simple as wearing a red shirt could trigger a rival gang member to react with violence if he felt disrespected. We hold that this evidence is relevant to an issue other than Almaraz's criminal propensity for murder; it is relevant to illustrate motive and intent. The district court also correctly admitted the testimony of Officer Cantrell, the State's expert on gang activity. Officer Cantrell testified that different gangs wear different colors and that a rival gang wearing a rival color may incite violence. Because none of Officer Cantrell's testimony was specific to BMC, Almaraz argues that the testimony was irrelevant and highly prejudicial character evidence under I.R.E. 404(a). Almaraz argues that by allowing Officer Cantrell to testify that gangs generally commit crimes, the jury would infer that Almaraz was more likely to commit crimes because he is a gang member. Officer Cantrell's testimony is relevant to motive because it explains how criminal gangs operate and assists the jury in understanding the nature of gang rivalries. Thus, we hold that Officer Cantrell's testimony about gang culture was relevant to a material issue other than Almaraz's propensity to commit crime. 2. The probative value of the evidence relating to the gang activity of BMC and the criminal conduct of street gangs in general was not substantially outweighed by unfair prejudice.

The district court recognized the potentially inflammatory nature of gang evidence and balanced the probative value of the testimony against the danger of unfair prejudice in accordance with I.R.E. 403. The court found that the probative value of the testimony was not substantially outweighed by the prejudicial effect of the testimony. To further mitigate any unfair prejudice of gang related testimony, the district court gave a limiting instruction to prevent the jury from considering the evidence as probative of Almaraz's propensity to commit crimes. The district court instructed the jury that "[s]uch evidence may be considered by you only for the limited purpose of proving the defendant's motive. . . . You should disregard such evidence if you find no connection between the crime charged and gang involvement." 1 The testimony challenged is relevant in understanding Almaraz's purported motive to shoot Flores because of a
In addition to giving jury instructions at the close of the trial, the court also gave the jury a limiting instruction regarding all expert testimony presented, explaining that the experts are there to assist the jurors in weighing the information, but ultimately the determination is up to the jurors as the triers of fact.
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seemingly harmless offense--wearing a red jersey in the wrong place. Such evidence of gang culture was necessary to explain how the mere gesture of refusing to remove a shirt could amount to an act of disrespect that provoked a violent and deadly reaction. Therefore, this Court finds that the district court did not abuse its discretion in determining that the probative value of the evidence relating to BMC's criminal activity and the violent nature of street gangs was not substantially outweighed by unfair prejudice. B. The District Court Erred in Failing to Suppress Ken Hust's Identification of Almaraz as the Shooter Hust was a patron at the Club 7 bar on the night of the shooting and he identified Almaraz as the shooter at trial. The defense filed a pretrial motion to suppress Hust's identification arguing that both the interview procedures and group photograph used by the police were overly suggestive, rendering the identification unreliable. The district court denied the motion to suppress, ruling that the identification procedure was not so overly suggestive that it diminished reliability. On appeal, Almaraz contends that the overly suggestive procedures used by the police to obtain Hust's identification violated his due process rights. The State argues that in order for a constitutional violation to occur, the suggestive procedures must be based on police action and the suggestive nature of the group photograph was not created by police action. If showing the suggestive photograph to Hust was state action, the State then argues that the police interview was not suggestive because Officer Sloan was not trying to change Hust's identification, but elicit information that Hust was withholding due to fear of retaliation. The preliminary issue for this Court is whether Office Sloan's act of showing Hust the group photograph was police action. While this Court acknowledges that the suggestive nature inherent in the photograph was not created by police action, the act of showing the suggestive photograph instead of a proper photo lineup was clearly police action. Therefore, this Court must address the substantive issue of whether the district court erred in denying the defense's motion to suppress Hust's identification. In reviewing the district court's ruling on a motion to suppress, this Court applies a bifurcated standard of review. State v. Ray, 153 Idaho 564, 286 P.3d 1114, 1117 (2012). This Court will accept the trial court's findings of fact that are supported by substantial evidence and freely review any constitutional principles implicated by the facts. Id. To determine whether evidence of an out-of-court identification violates due process, this Court applies a two-step test. 8

See State v. Hoisington, 104 Idaho 153, 162, 657 P.2d 17, 26 (1983). First, the defendant must establish that the identification procedure was overly suggestive. United States v. Wade, 388 U.S. 218, 240 n.1 (1967); Hoisington, 104 Idaho at 162, 657 P.2d at 26. Second, if the defendant meets that burden, courts consider whether the identification was nonetheless reliable under the totality of the circumstances. Id. This second step entails considering the witness's opportunity to view the perpetrator, his degree of attention, the accuracy of his description, his level of certainty, and the time between the crime and pretrial confrontation, and then weighing those factors against the "corrupting effect of the suggestive identification." Manson v. Brathwaite, 432 U.S. 98, 108 (1977); Hoisington, 104 Idaho at 162, 657 P.2d at 26. Thus, greater indicia of reliability may be necessary the more egregious the suggestive procedures. This Court is aware of the dangers of erroneous eyewitness identification. As Justice William J. Brennan said, "there is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says `That's the one!'" Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (internal quotation marks omitted)). Indeed, the empirical evidence demonstrates that eyewitness misidentification is "the single greatest cause of wrongful convictions in this country." State v. Henderson, 27 A.3d 872, 885 (N.J. 2011). While this Court has acknowledged that the reliability of eyewitness identification has been subject to "ongoing scientific and judicial inquiry," we have yet to articulate the impact of this inquiry on our due process analysis. See State v. Crawford, 99 Idaho 87, 102, 577 P.2d 1135, 1150 (1978). 2 The New Jersey Supreme Court recently undertook a very thorough

examination of the current state of scientific research regarding eyewitness identifications and concluded that "[t]he research . . . is not only extensive," but "it represents the `gold standard in terms of the applicability of social science research to the law.'" Henderson, 27 A.3d at 916. "Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings." Id. We agree with the New Jersey Supreme Court and find that this extensive research convincingly demonstrates the fallibility of eyewitness

The highest courts of two states have recently called into question the Manson test, based on the last 35 years of social science research into the reliability of eyewitness identifications. See Henderson, 27 A.3d 872; Oregon v. Lawson, 291 P.3d 673 (Or. 2012). In both instances, the courts provided defendants greater protections than Manson prescribes.

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identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification. The New Jersey Supreme Court divided these variables into "system variables" and "estimator variables." System variables are factors that are "within the control of the criminal justice system." Id. at 895. Estimator variables are "factors related to the witness, the

perpetrator, or the event itself--like distance, lighting, or stress--over which the legal system has no control." Id. The research showed that the following system variables help reduce the risk of misidentification: (1) conducting the identification procedure double-blind helps ensure that lineup administrators who know the suspect's identity do not inadvertently suggest the information to the witness; 3 (2) administering proper pre-lineup instructions that inform the witness that a suspect may or may not be in the lineup and it is permissible not to identify anyone; (3) avoiding confirmatory or post-identification feedback which can engender a false sense of confidence in the witness's identification; 4 (4) making a full record of the witness's statement of confidence once an identification is made; and (5) shielding witnesses from viewing suspects or fillers more than once. 5 Id. at 895

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