People v. Williams

Page 945

[Copyrighted Material Omitted]

Page 946

[Copyrighted Material Omitted]

Page 947

          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

         J. Jones and Nieto^[*], JJ., concur

         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

Page 948

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, 412 P.3d 741.

         [¶ 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, 88 S.Ct. 967, 19 L.Ed.2d 1247 (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, 97 S.Ct. 2243, 53 L.Ed.2d 140 (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, ...