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People v. Williams

Court of Appeals of Colorado, Fifth Division

March 7, 2019

The People of the State of Colorado, Plaintiff-Appellee,
Wenston Williams, Defendant-Appellant.

          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


          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 ...

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