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People v. Palacios

Court of Appeals of Colorado, Sixth Division

January 25, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Jose Luis Palacios, Defendant-Appellant.

         Jefferson County District Court No. 13CR2977 Honorable Todd L. Vriesman, Judge Honorable Christopher J. Munch, Judge

          Cynthia H. Coffman, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant

          OPINION

          HARRIS, JUDGE

         ¶ 1 Defendant, Jose L. Palacios, was convicted of felony murder, aggravated robbery, and other offenses after a drug-deal-turned-robbery ended in the shooting death of the victim by Palacios's accomplice.

         ¶ 2 On appeal, Palacios challenges his convictions on two grounds. First, he argues that the court erred in failing to suppress a witness's identification as the product of an impermissibly suggestive identification procedure. Second, he argues that the court erred in allowing the prosecution to use a full-size reconstructed model or "mock-up" of the crime scene during two prosecution witnesses' testimony and again during closing argument. We reject both arguments and therefore affirm.

         I. Motion to Suppress Identification

         ¶ 3 We begin with some factual background relevant to the motion to suppress.

         ¶ 4 The murder occurred in a detached garage, which the victim used as his residence. Two witnesses were present in the garage at the time of the crime: the victim's marijuana supplier and the victim's girlfriend.

         ¶ 5 On the night of the murder, police presented the girlfriend with a photo array. By this time, police knew that two perpetrators had committed the crime and they had identified the accomplice as a suspect. The array included a photo of the accomplice in position no. 1, and five "filler" photos. The girlfriend selected photograph no. 1 as the accomplice and a filler photograph in position no. 3 as possibly depicting the second perpetrator.[1]

         ¶ 6 Two days later, police showed the girlfriend another photo array, in an effort to identify the true second perpetrator. The array included a photograph of a suspect - not Palacios - in position no. 3, and five filler photographs. The girlfriend selected a filler photograph in position no. 5 as a photo of the second perpetrator.

         ¶ 7 Police soon learned that Palacios was likely the second perpetrator. So they showed the girlfriend a third photo array, this time with a photograph of Palacios in position no. 3, and five filler photographs. The girlfriend identified Palacios as the second perpetrator.

         ¶ 8 Palacios filed a motion to suppress the girlfriend's out-of-court identification and to exclude any subsequent in-court identification. He contended that the police had "induced" the girlfriend's identification of Palacios by "putting the suspect in the same position as the filler that had already been selected." The court denied the motion, reasoning that because the girlfriend had previously selected photos in position nos. 1, 3, and 5, simply placing Palacios's photo in position no. 3 did not render the array impermissibly suggestive.

         ¶ 9 On appeal, Palacios reasserts his argument that the final photo array was impermissibly suggestive because his photo was placed in position no. 3, after the girlfriend had selected a ...


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