Adams County District Court No. 10CR1565 Honorable Mark D. Warner, Judge
Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, James Joseph Garner, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of attempted reckless manslaughter, one count of first degree assault, and one count of reckless second degree assault. We affirm.
¶ 2 According to the People's evidence, C.A.D. and his brothers R.A.D. and A.A.D. were celebrating C.A.D.'s birthday at a bar. Defendant, his girlfriend Jaime Velasquez, and approximately four other individuals were also at the bar. During the night, a male from defendant's group approached C.A.D. and asked him whether he belonged to a gang. C.A.D. said he did not. Shortly after this encounter, C.A.D. left the bar to go home.
¶ 3 However, C.A.D. returned to the bar with his friend Gabriel Reyes to give his two brothers a ride home. Before the group left, R.A.D. went to the bathroom. On his way back from the bathroom, someone from defendant's group pushed R.A.D. into a table. During the ensuing chaos, defendant shot at R.A.D., grazing his wrist. Defendant then turned, shot, and injured both C.A.D. and A.A.D. After the shooting, defendant and his group fled through the back door. Defendant's glasses, spattered with his blood, were found on the floor of the bar. Also, a bar employee found Velasquez's cell phone containing pictures of defendant and Velasquez taken at the bar. These photos were used to locate and identify defendant.
¶ 4 Before trial, no witness was able to positively identify defendant from a photo lineup. However, at trial, all three brothers identified defendant as the shooter. The defense argued at trial that defendant was not the shooter.
¶ 5 Defendant was found guilty and sentenced to thirty-two years in the custody of the Department of Corrections.
II. In-Court Identifications
¶ 6 Defendant first contends that his right to due process and the requirements of various rules of evidence were violated when the court allowed the brothers to make impermissibly suggestive in-court identifications after failing to make a pretrial identification. We disagree.
A. Standard of Review
¶ 7 Reviewing the constitutionality of in-court identification procedures is a mixed question of law and fact. We give deference to the trial court's finding of fact while conclusions of law are reviewed de novo. Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).
¶ 8 We review the admission of first time, in-court show-up identifications by considering whether the identification is the product of constitutionally impermissible suggestive circumstances. People v. Monroe, 925 P.2d 767, 775 (Colo. 1996).
¶ 9 We review evidentiary rulings for an abuse of discretion. People v. Clark, 2015 COA 44, ¶ 14.
B. Applicable Law
¶ 10 An in-court identification, made by a witness who attended an illegal, pretrial lineup, is permissible only after there is a determination that the in-court identification is based upon a source independent of the improper lineup identification. This determination is made by the trial court, considering the totality of the circumstances. United States v. Wade, 388 U.S. 218, 242 (1967); Monroe, 925 P.2d at 770. The harm sought to be precluded is the likelihood that the in-court identification is the product of the illegal lineup and not the observation of the defendant's wrongful act. Monroe, 925 P.2d at 774.
¶ 11 In considering the totality of the circumstances the trial court should review five factors to gauge the likelihood of misidentification and apply an exclusionary rule: (1) the opportunity of the witness to view the accused; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199 (1972). This analysis deals with the exclusion of impermissible pretrial identifications and the in-court identifications that follow them. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986).
¶ 12 The majority of courts addressing this issue have determined that Neil v. Biggers does not apply to in-court identifications. See Byrd v. State, 25 A.3d 761, 765 (Del. 2011) (remedy for alleged suggestiveness is cross-examination and argument); State v. King, 934 A.2d 556, 559-60 (N.H. 2007) (fact finder can observe witness during in-court identification process and evaluate the reliability the identification); State v. Lewis, 609 S.E.2d 515, 517-18 (S.C. 2005) (remedy for alleged suggestiveness is cross-examination and argument).
¶ 13 Colorado has rejected a rule that one-on-one show-up identifications are per se violations of due process. Monroe, 925 P.2d at 773. Indeed, People v. Monroe made it clear that "[t]he exclusionary rule has not been extended to in-court identifications alleged to be suggestive simply because of the typical trial setting." Id. at 775. It is the duty of the jury to assess the reliability of identification evidence unless there is a very substantial likelihood of misidentification. Id.
¶ 14 The parties dispute whether this issue was properly preserved for appeal. Here, all three brothers made in-court identifications of defendant as the shooter. The first identification was made late in the afternoon, and the court adjourned roughly ten minutes after this identification. The following morning, before questioning continued, defendant objected to the identification as an impermissible one-on-one show-up identification. The court allowed the People to submit case law on the issue and took it under advisement. Defendant contemporaneously objected to the next two in-court identifications, and the court overruled both objections.
¶ 15 The People contend that defendant waived any objection because he failed to ask the trial court to make a final ruling regarding the identifications. However, it is unclear from the record whether the trial court did in fact make a final ruling on the objection. Because the record is not clear as to the trial court's intentions in overruling the objection and defendant clearly contemporaneously objected to the second and third in-court identifications, we conclude that this issue was preserved.
1. Lack of Pretrial Identifications
¶ 16 During the police's investigation and at trial, the brothers gave varying descriptions of the shooter and his clothing. The brothers' description of the events leading up to the shooting was also wide-ranging. As part of the investigation, the brothers had each been shown a photo lineup with the defendant's picture prior to trial; however, at no point were the brothers given the opportunity to identify the defendant in an in-person lineup. None of the witnesses was able to definitively identify defendant as the shooter from the photos. C.A.D. was able to positively identify defendant as being present at the bar the night of the shooting, but could not confirm that he was the shooter. A.A.D. and R.A.D. were not able to identify defendant from the photos as being present at the bar the night of the shooting.
2. Defendant's Presence at the Bar
¶ 17 While there were varying accounts and descriptions of the events on the night of the shooting, it was definitively established at trial that defendant was at the bar on the night of the shooting. First, defendant's DNA was found on a pair of glasses found at the crime scene. Second, a bar employee testified that she saw defendant and Jaime Velasquez taking pictures together on Velasquez's phone a short time before the shooting. That same employee found the phone on the floor following the shooting and, using the photos of defendant and Velasquez from the phone, the police created a bulletin to help locate defendant as a person of interest.
3. In-Court Identifications
¶ 18 At trial, each brother identified defendant as the shooter. Each identification took place while defendant was sitting at the defense table. Despite not having been able to identify defendant as the shooter from the photo lineup, all three of the brothers were certain at trial that defendant was the individual who shot them. The following testimony by one of the brothers is typical of how the in-court identifications were made:
[Prosecutor]: Now, Mr. [R.A.D.], do you see anybody here in the courtroom today who shot at you on that particular evening?
[R.A.D.]: Can I point?
[Prosecutor]: If you recognize somebody as the person who shot at you and the person who shot your brother [C.A.D.], yes, you can tell the Court or the jury where he's seated and tell them an item of clothing he is wearing.
[R.A.D.]: Right now?
[R.A.D.]: He's got a shirt that's blue in color.
[Prosecutor]: And can you tell the jury where he's seated? You can point to him if you need to.
[R.A.D.]: Yeah. It's over there.
[Prosecutor]: Let the record reflect the defendant's been identified . . . .
¶ 19 Although counsel contemporaneously objected to two of the identifications on the basis that they were one-on-one showups, there was no specific argument about what counsel contended were the constitutionally impermissible and suggestive circumstances other than the fact that these identifications occurred in the courtroom setting.
¶ 20 One-on-one confrontations are viewed with disfavor because they tend to be suggestive and present greater risks of mistaken identification than a lineup. People v. Walker, 666 P.2d 113, 119 (Colo. 1983). But, one-on-one confrontations are not per se violations of due process. Id. An in-court identification is properly considered by the jury if it does not stem from a constitutionally defective identification procedure. Monroe, 925 P.2d at 771 (citing Coleman v. Alabama, 399 U.S. 1, 4-5 (1970)).
¶ 21 Here, counsel argued that the brothers had been unable to identify defendant as the shooter prior to trial. While the inability of a witness to identify the defendant in a photographic lineup is relevant and certainly grist for cross-examination, it does not, as a matter of law, preclude him from making an identification upon seeing the defendant in court. People v. Horne, 619 P.2d 53, 57 (Colo. 1980); People v. Borrego, 668 P.2d 21, 23 (Colo.App. 1983). Instead, the previous inability to identify goes to the weight of his identification testimony rather than its admissibility. Horne, 619 P.2d at 57; see also United States v. Brown, 200 F.3d 700, 707 (10th Cir. 1999) (victim's identification of the defendants at trial, while the product of a suggestive procedure, occurred in the presence of the jury and the victim was fully and fairly cross-examined about the process and his previous inability to positively identify ...