State v. Griffin

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DANTREIL AMON GRIFFIN, Appellant.

Nos. 1 CA-CR 22-0380
1 CA-CR 23-0083
(Consolidated)
FILED 2-13-2024

Appeal from the Superior Court in Maricopa County
No. CR2019-105162-001
The Honorable Ronee Korbin Steiner, Judge
The Honorable Timothy J. Ryan, Judge

VACATED IN PART; AFFIRMED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
 STATE v. GRIFFIN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.

C A M P B E L L, Judge:

¶1 Dantreil Griffin appeals his convictions and sentences for
first-degree murder, aggravated assault, unlawful discharge of a firearm,
and assistance of a criminal street gang. He argues that 1) the trial court
erred by failing to preclude unreliable witness identification, 2) the trial
court coerced a deadlocked jury into rendering a verdict, 3) the prosecutor
failed to give notice of the possible sentencing range, and 4) the
victim’s-rights penalty imposed was an ex post facto violation. In briefing,
the parties agreed that the nine-dollar victims’ rights penalty imposed was
an ex post facto violation. We therefore vacate the victims’ rights penalty
assessment. As for the remaining issues, we affirm for the reasons below.

BACKGROUND

¶2 Griffin was affiliated with the criminal street gang known as
the 2200 Block Bloods. The murder victim, William Smith,1 was a
documented member of the Park South Crips—the Bloods’ rival gang. In
November 2018, Smith robbed Griffin’s acquaintance, Tyler, at a nightclub.
Smith was robbed at the same nightclub the following month.

¶3 A few weeks after being robbed, Smith was driving with his
girlfriend when they were shot at and chased by a male in a white Camaro.
This Camaro was later identified in music videos featuring Griffin, Tyler,
and Tyler’s half-brother, Cole. Law enforcement later determined that the
white Camaro belonged to Cole.

¶4 On December 29, 2018, Smith was shot and killed at a gas
station in Tempe. Immediately after the shots were fired, a white Camaro
matching the description of Cole’s vehicle fled the scene. Smith’s girlfriend,
Ashley, was present when he was shot. Two bystanders also witnessed the

1 We use pseudonyms to protect the identities of the victims and
witnesses.

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shooting. Two of the three eyewitnesses—Ashley and Karen—later selected
Griffin out of a photo lineup, but neither did so immediately.

¶5 During an interview, police asked Ashley to look at the
mutual Facebook friends she shared with Cole. One of the mutual friends
was Griffin, whose Facebook name was “Fly B Fresco.” A detective asked
Ashley if she knew Fly Fresco, to which she replied she did not. Three days
later, Ashley told detectives that after searching on social media, she
believed Fly Fresco (Griffin) shot her boyfriend. She identified Griffin in a
photo lineup later that month.

¶6 Karen, an independent eyewitness, was shown a photo lineup
in early January. She did not pick anyone from that lineup. The next day,
she called police and said she wanted to view the lineup again. At that time,
she chose Griffin out of the original lineup.

¶7 Before trial, Griffin moved to preclude the pretrial
identification evidence, arguing that Ashley’s identification was the result
of an unduly suggestive police procedure, and Karen’s identification was
unreliable. The court found both identifications to be properly obtained and
sufficiently reliable to be admissible at trial.

¶8 On the 18th day of trial, the court received a note from the
jury that read: “After rigorous deliberation last evening, we voted
unanimously. We came this morning to render a verdict. One juror changed
their vote this morning and indicated that their mind is made up. What
now?” Without objection from either party, the judge delivered an impasse
instruction. The jury requested a lunch break and a chance to continue
deliberating. Three hours later, the jury rendered guilty verdicts on all
charges.

¶9 After Griffin was convicted of the crimes detailed above, the
court imposed the following sentences: natural life for first-degree murder;
life with the possibility of release after 30 years for aggravated assault; 6.75
years for unlawful firearm discharge; and 16.25 years for assisting in a
criminal street gang. Counts 2-3 were aggravated by the gang affiliation
enhancement. Griffin timely appealed.

DISCUSSION

I. Admission of Pretrial Lineup Identification

¶10 Griffin argues that Ashley’s pretrial identification was the
result of unduly suggestive police conduct and should have been

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precluded. He asserts that by directing Ashley’s attention to Griffin’s
Facebook page, the detective suggested suspicion of Griffin, leading Ashley
to conduct her own investigation. Griffin alleges that the detective’s
conduct improperly resulted in Ashley later identifying him as the shooter.
We disagree.

¶11 We review trial court rulings on pretrial identifications for
abuse of discretion. State v. Moore, 222 Ariz. 1, 7, ¶ 17 (2009). “The ultimate
question of the constitutionality of a pretrial identification is, however, a
mixed question of law and fact” to be reviewed de novo. Id. (citing Sumner
v. Mata, 455 U.S. 591, 597 n.10 (1982)). To show that the admission of pretrial
identification testimony violated the defendant’s due process rights, the
defendant must establish that “(1) that the circumstances surrounding the
pretrial identification ‘created a substantial likelihood of irreparable
misidentification,’ and (2) the state bore sufficient responsibility for the
suggestive pretrial identification.” State v. Williams, 166 Ariz. 132, 137 (1987)
(citing Simmons v. U.S., 390 U.S. 377, 384 (1968)). If the court finds the
pretrial identification procedure to be unduly suggestive, the defendant
must then show that the identification itself was unreliable under the
totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 199 (1972).

¶12 Here, Ashley’s investigation into the social media profile of
Griffin—leading to her identification of him as the shooter—was not
attributable to the detectives. Initially, Ashley was shown a list of 12
Facebook profiles with a reduced, thumbnail-sized profile photo next to
each profile with their associated profile names. When a detective later
pointed out Griffin’s social media account, he did not do so in a way that
suggested Griffin was the shooter. Rather, he asked: “This Fly Fresco, how
do you know him?” When Ashley replied that she did not, he remarked
that they had mutual friends. She explained that she often added Facebook
friends with mutual friends without knowing them personally, and the
discussion of Fly Fresco ended. Ashley was not asked by the detectives to
look at Griffin’s profile, enlarge his profile photo, or engage in any kind of
investigation. To the extent she did any of these things, she did them on her
own. And when she was later shown a photo lineup, the lineup included
Griffin, who she identified as the shooter. The court did not err by admitting
evidence that Ashley identified Griffin as the shooter.

¶13 Griffin argues that the second identification was also
suggestive, but he does not fully develop that argument. We find no error
in the admission of evidence that Karen identified Griffin from a photo
lineup. Although she did not initially identify Griffin when she was first
shown a photo lineup, she requested that she be permitted to see the same

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lineup soon thereafter. At that point she identified Griffin as the shooter.
Our supreme court has held that showing a witness multiple lineups in
which the only common person in each grouping is the prime suspect,
while potentially suggestive, is not necessarily fatal. State v. Alvarez, 145
Ariz. 370, 372 (1985). Here, Karen was not shown different lineups with
only Griffin as a common suspect. Rather, she simply revisited the lineup
once she felt ready to make an identification. Because Griffin was not
singled out in the second lineup, the procedure in which Karen identified
him was not suggestive, and especially not unduly suggestive.

¶14 “The law does not preclude a victim from identifying his
attacker, presented alone, at a later time just because the victim could not
identify the attacker in a group earlier.” State v. Myers, 117 Ariz. 79, 84
(1977). Karen and Ashley both were shown a group of photos, each
including a photo of Griffin. The record does not indicate that either Karen
or Ashley was influenced at all, let alone unduly influenced by the State,
after failing to initially identify the shooter. Cf. Simmons, 390 U.S. at 385
(noting “[t]here is no evidence to indicate that the witnesses were told
anything about the progress of the investigation, or that the [government]
agents in any other way suggested which persons in the pictures were
under suspicion”). Instead, both witnesses, on their own volition, asked for
a second chance to view the lineups they were originally shown. Needing
additional time to accurately identify a suspect does not render the
identification procedure unduly suggestive. Because neither identification
was the result of suggestive lineup procedures, we find no need to review
the totality of the circumstances for reliability. See Biggers, 409 U.S. at 199.
And because we find no error in the court’s introduction of Karen’s
identification, even if we were to find Ashley’s identification to be the result
of suggestive conduct, such an issue would constitute harmless error. See
United States v. Carr, 761 F.3d 1068, 1074 (9th Cir. 2014) (“[E]ven if the
pretrial identification procedure was suggestive and the identification was
unreliable, this court must examine the district court’s failure to exclude the
identification for harmless error.”); State v. Williams, 133 Ariz. 220, 226
(1982) (erroneous admission of cumulative evidence is harmless error). We
affirm the admission of both lineup identifications accordingly.

II. Use of the Impasse Jury Instruction

¶15 Second, Griffin argues that the court improperly coerced a
deadlocked jury into rendering a verdict, violating his right to a fair trial.
He emphasizes that the jury was split 11-1 and that the court knew of the
numerical split. Because the jury was still deliberating, and because the

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court properly assisted the jury by giving an impasse instruction, we find
no error.

¶16 Griffin did not object to the court giving the impasse
instruction, so we review this issue for fundamental prejudicial error. See
State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Jury coercion exists when
the trial judge encourages a deadlocked jury to reach a verdict. State v.
Davolt, 207 Ariz. 191, 213, ¶ 94 (2004). If the numerical division of a split
jury is known, and particularly if the split is lopsided, encouraging the jury
to render a decision can amount to coercion. State v. McCutcheon, 150 Ariz.
317, 320 (1986). However, giving an impasse instruction to a jury where the
numerical split is known is not per se coercive. State v. Huerstel, 206 Ariz.
93, 100, ¶ 19 (2003); see also State v. Sabala, 189 Ariz. 416, 418–19 (App. 1997).
Rather, when the jury affirmatively asks the court for help after reaching an
impasse, Arizona Rule of Criminal Procedure (Rule) 22.4 specifically
authorizes the court to assist.

¶17 In State v. Sabala, a split jury revealed that it reached an
impasse, noting its numerical split and how the majority voted. 189 Ariz. at
417. Over objection, the court issued an impasse instruction offering ideas
for resolution, but urging the jurors that the instruction was not intended
to force a verdict. Id. at 417–18. The jury resumed deliberating for almost
two hours, then reached a verdict. Id. at 418. The defendant argued these
circumstances coerced the sole “not guilty” juror into changing his vote. See
id. We disagreed, noting several factors weighing against coercion: that the
jury never expressed further deliberations would be futile, the length of
time spent deliberating after the instruction, and that the instruction
explicitly counseled against forcing a verdict. Id. at 420.

¶18 The circumstances of the impasse instruction in the present
case similarly do not show coercion. Like in Sabala, when the jury sought
help from the judge, the foreman did not indicate that reaching a verdict
was hopeless. Rather, the foreman explained the split and asked how to
proceed. Moreover, as in Sabala, the court warned the jurors to retain their
independent judgment and not to force a verdict: “This [impasse
instruction] is offered to help you, not to force you to reach a verdict . . . you
should not change your belief concerning the weight or effect of the
evidence . . . for the mere purpose of returning a verdict.” Moreover, unlike
in Sabala, here, Griffin did not object to the proffered impasse instruction.
He has not established fundamental error resulting from the superior
court’s decision to give an instruction authorized by Rule 22.4.

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III. Use of A.R.S. § 13–706(A) Sentencing Enhancement

¶19 Finally, Griffin argues that he did not receive constitutionally
adequate notice of the range of sentence for the aggravated assault charge.
The State filed an allegation seeking to enhance any potential sentence
under A.R.S. § 13–706(B), yet Griffin was sentenced pursuant to A.R.S.
§ 13–706(A). Between the filing of the allegation and sentencing, the State
twice noted that Griffin could face 25 years to life if convicted of aggravated
assault. Griffin did not seek clarification or express confusion either time.
After trial, Griffin objected to an enhanced sentence under the statute
alleged (–706(B)) and the subsection not formally alleged (–706(A)). Though
the State conceded its filing error in its reply to Griffin’s objection, the
record shows that Griffin had actual notice that he faced a sentencing
enhancement based on his prior felony convictions (-706(A)).

¶20 “Sentencing determinations are reviewed for abuse of
discretion.” Davolt, 207 Ariz. at 216, ¶ 112. For sentence enhancement
allegations, notice must be such that the defendant is not “misled, surprised
or deceived in any way by the allegations of prior convictions.” State v.
Benak, 199 Ariz. 333, 337, ¶ 16 (App. 2001) (citation and internal quotation
marks omitted). “[T]he touchstone of the Sixth Amendment notice
requirement is whether the defendant had actual notice of the charge, from
either the indictment or other sources.” State v. Freeney, 223 Ariz. 110, 115,
¶ 29 (2009).

¶21 Griffin argues that because -706(A) offenses are elementally
distinct from -706(B) offenses, he was deprived of a complete defense to a
life sentence for the assault charge. While his criminal history would not
have permitted him to be sentenced under the prior violent felony
conviction enhancement (-706(B)), Griffin had actual notice of and objected
to the sentence he faced under -706(A). As the record reveals, when he
objected to the enhancement for prior violent felony convictions, he also
objected to being sentenced under the non-violent felony enhancement.
Moreover, the State set out the sentencing range he would be facing at a
settlement conference, and the range of sentence was consistent with a
sentence imposed under -706(A). Griffin did not raise any objection or seek
clarification of the range of sentence discussed at the settlement conference.
Griffin’s actual knowledge of the State’s intentions are further cemented in
the final trial management statement. In that statement, the range of
sentence “25 years to life” was set forth and acknowledged by both the State
and Griffin. Griffin’s direct acknowledgment of the sentence he received
completely dispels his claim that he was unaware of the possible range of
sentence he could be facing should he be convicted. The trial court

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committed no abuse of discretion in relying on these facts to uphold his
sentence. Accordingly, we affirm.

CONCLUSION

¶22 Per both parties’ request, we vacate the victim’s rights penalty
assessment of nine dollars. We affirm Griffin’s convictions and sentences
for lack of error or abuse of discretion.

AMY M. WOOD • Clerk of the Court
FILED: AA

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