City
and County of Denver District Court No. 15CR5126 Honorable
Andrew P. McCallin, Judge
Philip
J. Weiser, Attorney General, Brenna A. Brackett, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Cynthia M. Mardian, Alternate Defense Counsel, Denver,
Colorado, for Defendant-Appellant
OPINION
TERRY
JUDGE.
¶
1 Defendant, Wenston Williams, appeals his judgment of
conviction entered after a jury found him guilty of
aggravated robbery and second degree assault. He also appeals
the sentence imposed after the trial court adjudicated him a
habitual criminal.
¶
2 In Part IV of this opinion, we consider whether two guilty
pleas entered at the same hearing constitute two separate
convictions for purposes of the habitual criminal sentencing
statute, § 18-1.3-801(2)(a)(I), C.R.S. 2018, when the
pleas were to two charges brought in separate charging
documents, but later joined for trial under Crim. P. 8(a)(2).
We conclude that when two charges would have been tried
together in one trial but for the defendant's guilty
pleas, they cannot be considered "separately brought and
tried" under the habitual criminal sentencing statute.
See Gimmy v. People, 645 P.2d 262, 267 (Colo. 1982).
¶
3 We affirm the judgment, reverse the sentence, and remand
with directions to impose a new sentence and to correct the
mittimus.
I.
Background
¶
4 Defendant robbed an Uber driver (the victim) at knifepoint
in an alleyway in Denver. After the jury returned its
verdict, the trial court held a hearing to determine whether
defendant was a habitual criminal. Based on defendant's
prior convictions for first degree assault (heat of passion)
and two prior convictions for distribution of a Schedule II
controlled substance, the trial court adjudicated him a
habitual criminal and sentenced him to sixty-four years in
prison.
II.
Defendant's Motion to Suppress Pretrial Identification
¶
5 Defendant contends that the pretrial photo lineup, from
which the victim identified him, was impermissibly
suggestive. He argues that he was older than the other men in
the photo array, the clothing displayed in his photo was
unduly suggestive as compared with the clothing worn by the
other pictured men, and there were impermissible differences
between the photos because some of the pictured men had
tattoos. He also contends that the photo array was
impermissibly suggestive because of the limited number of
photos included. We disagree with all of these contentions.
A.
Standard of Review and Applicable Law
¶
6 The constitutionality of pretrial identification procedures
presents a mixed question of law and fact. Bernal v.
People, 44 P.3d 184, 190 (Colo. 2002). Because defendant
objected, we review for harmless error and will reverse if
there is a reasonable possibility that any erroneous
admission of the identification contributed to the
conviction. People v. Singley, 2015 COA 78M, ¶
10.
¶
7 Suggestive lineups are disapproved of because of the
increased likelihood of misidentification and, thus,
conviction of the innocent. Bernal, 44 P.3d at 190.
Therefore, "each case must be considered on its own
facts," and a conviction based on an eyewitness's
identification at trial "following a pretrial
identification by photograph will be set aside on that ground
only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable
misidentification." Id. at 191 (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)).
This standard requires a two-part analysis. Id.
¶
8 "First, a court must determine whether the photo array
was impermissibly suggestive . . . ." Id. The
defendant bears the burden of proof. Id.
"Second, if the defendant's burden is met, the
burden shifts to the People to show that despite the improper
suggestiveness, the identification was nevertheless reliable
under the 'totality of the circumstances.'"
Id. (quoting Manson v. Brathwaite, 432 U.S.
98, 114 (1977)).
¶
9 Relevant factors to consider in determining whether the
identification procedure is impermissibly suggestive include
the size of the array and the manner of its presentation, as
well as the details of the photographs themselves.
Id. An array that includes a photo that is unique in
a manner directly related to an important identification
factor may be held impermissibly suggestive. People v.
Borghesi, 66 P.3d 93, 104 (Colo. 2003) ("[T]he
remaining consideration is whether the photographs in the
array are so limited that the defendant is the only one to
match the witness's description of the perpetrator."
(citing Bernal, 44 P.3d at 191)). The police are not
required to "provide a photo array containing only
'exact replicas' of the defendant's
picture," but the photos must be "matched by race,
approximate age, facial hair, and a number of other
characteristics." Bernal, 44 P.3d at 191-92
(quoting People v. Webster, 987 P.2d 836, 839
(Colo.App. 1998)).
¶
10 If the court finds a photo array impermissibly suggestive,
it must then proceed to the second step of the analysis and
determine whether, under the totality of the circumstances,
the suggestive procedure created a very substantial
likelihood of misidentification. Id. at 192.
B.
Discussion
¶
11 The number of photos in the array - six - and the
complained-of details of the photos did not render the lineup
impermissibly suggestive.
¶
12 The victim described the suspect as a black male, thirty
to forty years old, five feet eight inches tall, heavily
built, and wearing a black hoodie.
¶
13 At a preliminary hearing, the detective who conducted the
photo lineup testified that before he showed the photos to
the victim, he gave the victim several standard admonitions
about the photo lineup process. The detective showed the
victim the six photographs individually. Though the detective
did not remember whether the victim viewed any of the
photographs twice, he testified that the victim was
"pretty quick about" viewing them. The detective
was not involved with the case in any other way and did not
know the identity of the suspect. Another detective testified
that he compiled the photo lineup using photographs from Web
Mug based on the characteristics described by the victim.
¶
14 Nothing about the presentation of the photographs renders
the procedures surrounding the array suggestive, and the
number of photographs shown was not so small as to make the
presentation unfairly suggestive. See People v.
Wilford, 111 P.3d 512, 514 (Colo.App. 2004). The
question, then, is whether defendant's photograph
substantially matches the description given by the victim,
and whether it "so stood out from all of the other
photographs as to 'suggest to [the victim] that
[defendant] 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)) (alteration in
original).
¶
15 The trial court found that, although the filler photos
were of men younger than defendant, defendant "in fact,
looks close in age to the individuals who are aligned in the
photo array, even though they were all in their 30s."
Based on that finding, the court concluded that
defendant's "age did not stand out as an identifying
characteristic among all of the other individuals who are
aligned in the photo array."
¶
16 The court also rejected defendant's argument that his
photo improperly stood out because he was wearing a hoodie.
The court noted that the hoodie in defendant's photo was
red, whereas the victim described the suspect as wearing a
black hoodie, and that another man in the photo array was
wearing a black hoodie. Under all of the circumstances,
including other distinguishing characteristics, such as
"the shaved head, the approximate age, and the
description provided by [the victim]," the court found
that the photo of defendant wearing a hoodie did not cause
the array to be unduly suggestive.
¶
17 The record supports the court's findings. The photo of
defendant matched the victim's description of the suspect
"by race, approximate age, facial hair, and a number of
other characteristics," and the filler photos depicted
men who generally fit the ...