Adams County District Court No. 10CR953 Honorable Chris Melonakis, Judge.
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Delmon Edric Singley, appeals his judgment of conviction entered on a jury verdict finding him guilty of attempted second degree murder, first degree assault, attempted aggravated robbery, and felony menacing. We affirm.
¶ 2 In the late evening of May 11, 2010, the victim, J.A.C., was commuting home from work when two men, both carrying handguns, confronted him. When J.A.C. shouted for help, one of the men opened fire, shooting him three times, fracturing his pelvic bone, and causing permanent scarring.
¶ 3 At the hospital, J.A.C. told officers that two black men in dark clothing had robbed and shot him. He described the shooter as being in his twenties with a medium-length Afro and wearing a dark-colored, unzipped, hooded sweatshirt, black shoes, and a mask.
¶ 4 Throughout the evening, officers canvassed the surrounding neighborhoods for two black men wearing dark clothing. Eventually, an officer noticed Singley, who at the time was forty-six years old and bald, and another man, wearing dark clothing. The two men were walking down the street carrying a flat-screen television and a laptop computer. When the officer confronted them, a woman ran from her home saying that the men had robbed her. Although Singley and the other man dropped the television set and computer and fled the scene, another officer was later able to arrest Singley. A search incident to arrest uncovered a mask in Singley's back pocket. During an interview with the arresting officer, Singley admitted to knowing about the shooting but denied any involvement in it.
¶ 5 About a week and a half after the shooting, officers presented J.A.C. with two six-photograph lineups in an attempt to identify both the shooter and his accomplice. Officers suspected Singley of being the shooter and built one lineup around a photograph of him. Within forty-five seconds, J.A.C. identified Singley as the shooter; however, he was unable to identify the accomplice among the six photographs in the second lineup. J.A.C. also identified the mask found on Singley as the one that the shooter had been wearing.
¶ 6 The prosecution's case relied heavily on J.A.C.'s prior out-of-court identification of Singley. Although J.A.C. testified to identifying Singley in the photographic lineup, he was unable to identify Singley in court. Instead, J.A.C. identified Singley from a photograph taken during his arrest on the evening of the shooting. In it, Singley is handcuffed and standing next to a police cruiser.
¶ 7 The jury convicted Singley as charged, and the trial court sentenced him to thirty-two years in the custody of the Department of Corrections for the second degree attempted murder, thirty-two years for the assault, and sixteen years for the aggravated robbery. II. Photographic Lineup Identification
¶ 8 Singley contends that the trial court violated his right to due process and a fair trial when it declined to suppress the allegedly impermissibly suggestive and unreliable out-of-court identification, as well as the subsequent in-court identification. Although we first conclude that the trial court erred when it found that the lineup was not impermissibly suggestive, we conclude that the trial court's error does not warrant reversal because under the totality of the circumstances, J.A.C.'s identification of Singley was nonetheless reliable and any error by the trial court in determining reliability was harmless beyond a reasonable doubt. Finally, we conclude that any error in admitting the in-court identification was not plain.
A. Standard of Review
¶ 9 The constitutionality of a pretrial identification procedure is a mixed question of law and fact. People v. Wilford, 111 P.3d 512, 514 (Colo.App. 2004). While we give deference to the trial court's findings of fact, we may give weight to those facts differently and thus reach a different conclusion. People v. Hogan, 114 P.3d 42, 49 (Colo.App. 2004).
¶ 10 Singley objected to the out-of-court identification; therefore, we review for constitutional harmless error. See People v. Martinez, 2015 COA 37, ¶ 10, __ P.3d __, (citing Hagos v. People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119). Under this standard, we reverse if there is a reasonable possibility that the erroneous admission of the identification contributed to the conviction. Id.
¶ 11 Singley did not object to J.A.C.'s in-court identification of him; therefore, we review for plain error. People v. Miller, 113 P.3d 743, 749 (Colo. 2005). Plain error addresses error that is both "obvious and substantial." People v. Stewart, 55 P.3d 107, 120 (Colo. 2002) (internal quotation marks omitted). It must be seriously prejudicial and "'so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.'" Hagos, ¶ 14, 288 P.3d at 120 (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)).
¶ 12 Plain errors must also be "so clear-cut, [and] so obvious, that a trial judge should be able to avoid [them] without benefit of objection." People v. Pollard, 2013 COA 13M, ¶ 39, 307 P.3d 1124, 1133.
B. Applicable Law
¶ 13 The supreme court has outlined a two-part test for determining the admissibility of out-of-court photographic identifications. Bernal v. People, 44 P.3d 184, 190-91 (Colo. 2002).
¶ 14 First, the defendant has the burden of demonstrating that the array was impermissibly suggestive. People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003). "[T]he principal question is whether the picture of the accused, which matches descriptions given by the witness, so stood out from all of the other photographs as to 'suggest to an identifying witness that [that person] was more likely to be the culprit.'" Bernal, 44 P.3d at 191 (quoting Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir. 1986)) (some internal quotation marks omitted). Relevant factors in making this determination include "the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves." Borghesi, 66 P.3d at 103-04 (internal quotation marks omitted). A photographic array need not contain "exact replicas" of the defendant's picture; rather, all that is required is that the "photos are matched by race, approximate age, facial hair, and a number of other characteristics." Bernal, 44 P.3d at 191-92 (internal quotation marks omitted). If a defendant cannot meet this burden and the identification is admissible, then no further inquiry is required. Id.
¶ 15 Second, if the defendant has met this burden, the state must show that the identification was nevertheless reliable under the totality of the circumstances. Id. Factors to consider include, among others, (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the ...