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Garner v. People

Supreme Court of Colorado, En Banc

March 18, 2019

James Joseph Garner, Petitioner
v.
The People of the State of Colorado, Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 12CA2540

          Attorneys for Petitioner: Megan A. Ring, Public Defender Inga K. Nelson, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General Jillian J. Price, Assistant Attorney General Denver, Colorado

          Attorneys for Amicus Curiae The American Psychological Association: Wilmer Cutler Pickering Hale and Dorr LLP Michael J.P. Hazel Denver, Colorado

          Wilmer Cutler Pickering Hale and Dorr LLP David W. Ogden Daniel S. Volchok Kevin M. Lamb Washington, D.C.

          Attorneys for Amicus Curiae The Innocence Project: Johnson & Klein, PLLC Eric K. Klein Amy D. Trenary Boulder, Colorado

          MÁRQUEZ JUSTICE

         ¶1 Eyewitness identifications are extremely powerful evidence. "[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'" Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (quoting Elizabeth F. Loftus, Eyewitness Testimony 19 (1979)). But such evidence is also fallible. Indeed, "the annals of criminal law are rife with instances of mistaken identification." United States v. Wade, 388 U.S. 218, 228 (1967). Precisely because identification testimony is so persuasive, a mistaken identification can lead to a wrongful conviction.

         ¶2 Criminal defendants therefore have access to certain safeguards at trial to test the reliability of identification evidence, including the right to counsel and the opportunity to cross-examine prosecution witnesses. The U.S. Supreme Court has also recognized "a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime." Perry v. New Hampshire, 565 U.S. 228, 232 (2012). Specifically, in Neil v. Biggers, the Court held that where the State seeks either to admit evidence of a resulting out-of-court identification or to elicit a live identification from the witness at trial, due process requires the trial court to assess whether, under the totality of the circumstances, the identification is nevertheless reliable. 409 U.S. 188, 198-99 (1972).

         ¶3 Here, the People charged James Garner for a bar shooting that injured three brothers. The People's case hinged on the brothers' live identifications of Garner at trial almost three years later, though none of them could identify Garner as the shooter in an earlier photographic array. The core question before us is whether, in these circumstances, Biggers required the trial court to assess the reliability of the brothers' first-time in-court identifications before allowing them in front of the jury.

         ¶4 Garner argues that particularly given the brothers' inability to identify him before trial, their in-court identifications were the product of impermissibly suggestive circumstances, and the trial court should have suppressed them under both Biggers and the Colorado Rules of Evidence. The People respond that where an in-court identification does not stem from a constitutionally defective out-of-court identification procedure, the court need not screen the in-court identification for reliability. Instead, any questions of reliability are for the jury to weigh.

         ¶5 We hold that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to assess the identification for reliability under Biggers. Because Garner alleges no impropriety regarding the pretrial photographic arrays, and the record reveals nothing unusually suggestive about the circumstances of the brothers' in-court identifications, we hold that the in-court identifications did not violate due process. We further hold that Garner's evidentiary arguments are unpreserved and that the trial court's admission of the identifications was not plain error under CRE 403, 602, or 701. Accordingly, we affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶6 Near closing time at a Denver bar, two groups were celebrating birthdays. Christian Adame-Diaz was celebrating with his friend and his two brothers, Roberto and Arturo. The defendant, James Garner, was celebrating with his girlfriend and a few others. A fight broke out between the two groups. Someone pulled out a gun and fired six shots, injuring all three brothers. Following the shooting, Garner's group fled. Police recovered from the scene a pair of glasses splattered with Garner's blood, and a cell phone belonging to his girlfriend.

         ¶7 The People charged Garner with attempted murder of each brother; first-degree assault of Christian and Arturo; possession of a weapon by a previous offender;[1] and crime of violence sentence enhancers. The defense maintained that although Garner was at the bar on the night of the shooting, he was not the gunman.

         ¶8 During their investigation, police presented each brother with a photographic array that included Garner. Although Christian was able to identify Garner as someone present at the bar the night of the shooting, none of the brothers identified Garner as the gunman.

         ¶9 Despite failing to identify Garner in the pretrial photo arrays, all three brothers positively identified him almost three years later at trial as the shooter. Roberto testified first. When asked whether he saw "anybody . . . in the courtroom . . . who shot at [him] on that particular evening," Roberto pointed at Garner and identified the color of his shirt. Roberto said the shooter's face was something he would never forget. The following morning, defense counsel moved to strike Roberto's in-court identification of Garner "as an impermissible one-on-one show[-]up identification, not comporting with the factors that are required." The trial court took the issue under advisement.

         ¶10 Arturo was the next brother to testify. When asked how long he had stayed at the bar that night, Arturo spontaneously identified Garner, saying, "[U]ntil this individual here fired at us. I don't want to see this guy I remember with the gun." Arturo said he was "a hundred percent sure that it was him." Defense counsel objected to "the unduly suggestive nature of th[e] one-on-one identification," but did not specify what made the in-court identification suggestive. The trial court overruled the objection.

         ¶11 Christian likewise spontaneously identified Garner in the courtroom. While testifying about the events leading up to the shooting, Christian pointed at Garner and said, "[H]im, James that's here, pushed [Roberto] against the chairs. When he fell on top of the chairs and tables, he took out his gun and started shooting my brother." Christian was positive that Garner was the gunman. Defense counsel again objected "as to a one-on-one prejudicial show-up lineup," and the trial court again overruled the objection.

         ¶12 Throughout trial, defense counsel questioned the reliability of the brothers' identification testimony. In her opening statement, counsel asked the jury to note how the brothers' descriptions of the shooter initially conflicted but began to cohere over time:

[T]he . . . brothers . . . give different descriptions of what they think the man looked like. . . . None of them describe a person with facial hair. Yet later they meet with the district attorneys and the detective at the bar, and suddenly all of their descriptions kind of start to line up a little bit more because now they are all describing a guy with facial hair.

         ¶13 Counsel highlighted these and many other discrepancies in the brothers' descriptions of the shooter through cross-examination, eliciting differences in the type, color, and detail of the shooter's clothing, and whether he had facial hair or wore glasses.

         ¶14 Defense counsel also confronted each brother with his earlier failure to identify Garner as the shooter in a photographic array. For example, Christian acknowledged on cross-examination that when he saw Garner in the photo array, he told the detective, "He was there but he was not the shooter." And counsel engaged in the following exchange with Roberto:

Q. Now, you spoke with [the detective] again . . . so that you could look at the [photo] lineup and see if you could find the man you'll never forget?
A. Yes.
Q. Which you did not?
A. No, I didn't do it.

         ¶15 During closing argument, defense counsel again sought to undermine the brothers' in-court identifications. She retraced for the jury how "[e]veryone's initial description of the shooter [wa]s different," and how the brothers' descriptions changed over time. Counsel also contrasted the brothers' inability to identify Garner in the photographic arrays with their certainty that he was the shooter when they saw him in court: "They can't identify James Garner at . . . all, but when he's sitting in this chair, the one with the arrow over it, that's when they can say they're sure."

         ¶16 The jury convicted Garner of first-degree assault of Christian; second-degree assault of Arturo; and the lesser-included offenses of attempted reckless manslaughter of Christian and Arturo. The jury acquitted Garner of all attempted murder charges and of all the lesser-included charges against Roberto.

         ¶17 Garner appealed his convictions, arguing, as relevant here, that the admission of the brothers' in-court identifications violated his right to due process under the state and federal constitutions, and the requirements of CRE 403, 602, and 701.

         ¶18 The court of appeals rejected these contentions. People v. Garner, 2015 COA 175, ___ P.3d ___. The court reasoned that in Neil v. Biggers, the U.S. Supreme Court articulated a test for "the exclusion of impermissible pretrial identifications and the in-court identifications that follow them." Garner, ¶ 11. The harm to be avoided, the division explained, is the risk that "the in-court identification is the product of the illegal lineup and not the observation of the defendant's wrongful act." Id. at ¶ 10. The court recited the factors identified in Biggers that a trial court should consider when assessing the reliability of an identification that follows an impermissibly suggestive confrontation procedure: (1) the witness's opportunity to view the accused at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the witness's level of certainty at the confrontation; and (5) the length of time between the crime and the confrontation. Id. at ¶ 11 (citing Biggers, 409 U.S. at 199).

         ¶19 The court of appeals next observed that the majority of courts have declined to extend Biggers to in-court identifications that do not follow unlawful pretrial identifications. Id. at ¶ 12. The court also observed that Colorado has not applied "[t]he exclusionary rule . . . to in-court identifications alleged to be suggestive simply because of the typical trial setting." Id. at ¶ 13 (quoting People v. Monroe, 925 P.2d 767, 775 (Colo. 1996)).

         ¶20 Relying on these principles, the court noted that although Garner's counsel "objected to . . . the identifications on the basis that they were one-on-one show-ups," she offered no specific argument identifying the "constitutionally impermissible and suggestive circumstances other than the fact that the[] identifications occurred in the courtroom setting." Id. at ¶ 19. The court reasoned that, although "relevant and certainly grist for cross-examination," the brothers' inability to identify Garner as the shooter prior to trial did not, as a matter of law, "preclude [them] from making an identification upon seeing [Garner] in court." Id. at ¶ 21. The court explained that the brothers' previous failure to identify Garner went to the weight of their in-court identification testimony, rather than its admissibility. Id. at ¶¶ 21-22.

         ¶21 The court observed that "[e]ach identification was done in the presence of the jury," and that "defense counsel extensively cross-examined and impeached each of the brothers with their prior inconsistent statements and inability to identify defendant as the shooter from the photo lineup." Id. at ¶ 23. Thus, the court concluded, Garner "was given a full and fair opportunity to cross-examine each of the in-court identifications," and his right to due process was not violated. Id.

         ¶22 The court also summarily rejected Garner's "bare evidentiary arguments," noting that defense counsel had not made specific objections at trial under CRE 403, 602, or 701. Id. at ¶ 23 n.2. It concluded the trial court had not, in any event, abused its discretion under those rules in admitting the in-court identifications. Id.

         ¶23 We granted Garner's petition for a writ of certiorari to decide whether the in-court identifications were admitted in error.[2]

         II. Analysis

         ¶24 Garner argues that the admission of the brothers' first-time in-court identifications violated his rights to due process and a fair trial. Importantly, he does not allege that the pretrial identification procedures were improper. Instead, he contends that the brothers' first-time in-court identifications were the product of impermissibly suggestive circumstances, particularly given the brothers' inability to identify Garner as the shooter in the pretrial photographic arrays. Therefore, he argues, the trial court was required to assess the reliability of these in-court identifications under the Biggers test before admitting them. Garner also contends the trial court should have excluded the identifications under CRE 403, 602, and 701, though he failed to make specific objections under those rules at trial.

         ¶25 The People respond that in-court identifications not preceded by improper pretrial identification procedures do not implicate a defendant's right to due process. The People observe that in-court identification procedures historically have not been cause for concern, and point out that in Perry v. New Hampshire, the U.S. Supreme Court held that the Biggers reliability test is not required for identifications that were not procured under suggestive circumstances arranged by law enforcement. Although they acknowledge that all in-court identifications entail some element of suggestion, they contend that any inherent suggestiveness of the courtroom setting is not attributable to law enforcement. The People thus argue the trial court was not required to prescreen the brothers' in-court identifications for reliability under the Biggers factors; rather, the reliability of their identification testimony was for the jury to weigh. Alternatively, the People argue that even under the Biggers factors, the identifications were sufficiently reliable to be admitted. Finally, the People contend that the trial court did not plainly err by failing, sua sponte, to exclude the challenged identifications under CRE 403, 602, and 701.

         ¶26 We begin our analysis by tracing the U.S. Supreme Court's development of the test articulated in Biggers. We then observe that in the wake of Biggers, courts have been divided on whether the Biggers reliability analysis applies to an in-court identification not preceded by an improper out-of-court identification procedure. We also note that in Colorado, we have recognized that certain in-court identifications might raise due process concerns, but we have declined to require prescreening of identifications alleged to be suggestive based merely on the ordinary courtroom setting.

         ¶27 Next, we turn to a discussion of the U.S. Supreme Court's decision in Perry. There, the Court held that out-of-court identifications that are not a product of suggestive circumstances arranged by law enforcement do not require judicial prescreening for reliability under Biggers. Though the Supreme Court in Perry did not squarely address whether Biggers applies to first-time in-court identifications, its reasoning has significantly reshaped that debate: the clear majority of courts to consider the issue since Perry have concluded that Biggers does not require trial courts to screen first-time in-court identifications for reliability. These courts have concluded that for defendants identified for the first time in court, the ordinary safeguards of the trial process are sufficient to satisfy due process, and the reliability of the identification testimony is for the jury to weigh.

         ¶28 Relying on the Supreme Court's reasoning in Perry, we hold that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to assess the identification for reliability under Biggers. Because Garner does not allege that the pretrial identification procedures were improper, and the record reveals nothing unusually suggestive about the circumstances surrounding the brothers' in-court identifications, we hold that their admission did not violate ...


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