April 1, 2013 State v. Hector B. Almaraz, Jr. - Idaho State Judiciary

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.
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