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