[Copyrighted Material Omitted]
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and County of Denver District Court No. 15CR5126, Honorable
Andrew P. McCallin, Judge
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
Jones and Nieto[*], JJ., concur
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
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 defendants 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
3] We affirm the judgment, reverse the sentence, and
remand with directions to impose a new sentence and to
correct the mittimus.
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
defendants 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.
Defendants 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.
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 eyewitnesss
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 defendants 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 witnesss 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 defendants
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
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
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,