(568 P.2d 1177)
No. 76-159Colorado Court of Appeals.
Decided July 7, 1977. Rehearing denied July 28, 1977. Certiorari granted September 19, 1977.
In prosecution for burglary, felony theft, and conspiracy in connection with theft of television set from apartment house, critical prosecution witness was attendant at parking lot near the apartment house who identified defendant as being in car similar to that of the thieves some forty-five minutes before theft and again saw defendant in that car some days later. Following conviction, defendant appealed.
Affirmed
1. CRIMINAL LAW — Identification — At Trial — Basis for Reversal — Condition — Impermissibly Suggestive — Substantial Likelihood — Misidentification. A conviction based on an identification at trial will be set aside only if prior identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification which denies the defendant due process of law.
2. Illegal Confrontation — Witness — Defendant — In Court Identification — Permissible — Condition — Independent Basis — Present. Even if there has been an illegal confrontation between a witness and a suspect, the witness may make an in-court identification if there is an independent source upon which to base that identification.
3. Identification Procedure — Impermissibly Suggestive — In-Court Identification — Burden on People — Clear and Convincing Evidence — Not Tainted. Where there has been an impermissibly suggestive identification procedure conducted by the police, it is the burden of the People to show by clear and convincing evidence that a subsequent in-court identification was not the result of suggestion, but was the product of the witness’s own recollection.
4. In-Court Identification — After Illegal Confrontation — Totality of Circumstances — Factors For Consideration — Listed. In deciding whether or not there exists an independent basis for an in-court identification of a defendant by witness following an illegal confrontation between that defendant and the witness, the totality of the circumstances must be considered and among the factors for consideration are: The opportunity for the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Page 482
5. In-Court Identification — After Tainted Photo Lineup — Multiple Factors — Support — Trial Court Ruling — Witness — Independent Basis — For Identification. While witness did not observe the actual crime, he did testify as to his opportunity to observe suspect car and its front seat occupants at close range on the date of the crime, and his conversation about the burglary with another witness to the crime within 45 minutes of his encounter with the vehicle gave him reason to remember that encounter, and some weeks later the witness again observed the car and its occupants, and was sufficiently certain that the car and two of the persons he saw entering it were the same he had seen on the earlier day that he recorded and gave to the burglary victim the car’s license number; moreover, this subsequent “identification” by the witness occurred before the police had ever contacted him and his identification of defendant on the later date from an untainted photo lineup bolstered the witness’s assertion that he could identify some of the people he saw in the car on the date of the burglary and on the later date; consequently, all of these facts when considered together, were sufficient for the trial court to find that the evidence was clear and convincing that the witness had a basis independent of a tainted photo lineup with which to identify defendant, and thus, the trial court’s finding therefore will not be disturbed on review.
6. Trial — Improper Question — Immediate Objection — Sustained — Matter Not Pursued — Refusal of New Trial — Not Abuse of Discretion. Not every improper question or attempt to present improper evidence mandates a new trial, and thus, although improper question concerning original charges filed against defendant was asked by the prosecutor, an immediate objection by defense counsel was sustained, and no information was elicited from defendant as result of the question and the matter was not pursued further; consequently, defendant failed to show prejudice as a result of the question, and there was no abuse of discretion by the trial court in refusing to grant defendant a new trial based upon that improper question.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Felipe V. Ponce, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, Lawrence J. Schulman, Deputy State Public Defender, for defendant-appellant.
Division II.
Opinion by JUDGE ENOCH.
Page 483
Defendant, Ernest Huguley, appeals his conviction of second degree burglary, felony theft, and conspiracy. We affirm.
Defendant and one Edker Robinson were accused of breaking into an apartment in Denver and stealing a color television set. A tenant of the apartment house, Frieda Brown, worked in a nearby building which faced the apartment house, and which was separated from it by a parking lot. She testified that on the morning of January 30, 1975, she observed two men knock on the door of the manager’s apartment and then after receiving no answer, rejoin a third party in a yellow and black car which was parked on the street next to the apartment house and parking lot. About five minutes later, she observed two men force open the door of the manager’s apartment and carry the color television to the same car, which was now stopped in the alley by the apartment. Mrs. Brown called the police as soon as the burglars broke in the door. Shortly after the burglary, but before the police had arrived, she discussed the burglary, and the car and its occupants, with the parking lot attendant. At trial, she was able to identify the burglars as being black males, describe the clothing worn by them, and given their relative heights, but she was not able to identify the parties because she had not been close enough to see their faces.
The attendant at the parking lot, James Fling, testified that a yellow car with a black or faded brown top and occupied by three parties had entered his lot that morning, that he went up to the car and talked for three or four minutes to the driver and front seat passenger, whom he identified as defendant and Robinson, and that they backed out of the lot when they learned that they had to pay to park there. Fling also described the clothing that the parties in the front seat were wearing. Fling learned of the burglary shortly after it occurred, when Mrs. Brown talked to him. When Mrs. Brown described the car and its occupants, Fling informed her that he had in fact observed that car because it had entered his parking lot earlier. He testified that 40-45 minutes had elapsed between the time he saw the car in his lot and his conversation with Mrs. Brown.
On March 4, 1975, Fling again saw Robinson, defendant, and another person getting into the same car he had seen on January 30. At that time, Fling stopped, wrote down the license number of the car, and gave it to the victim, who in turn relayed the information to the police. Shortly thereafter, the occupants of the car were detained and defendant and Robinson were subsequently arrested.
Defendant claims that the court erred in refusing to suppress Fling’s in-court identification of him as one of the persons in the car which drove into Fling’s lot on January 30, 1975. We do not agree.
At the in-camera hearing, just before trial, it was revealed that, after Robinson and defendant had been detained on March 4, Fling was shown a photo lineup of six photographs, including Robinson’s, but not including defendant’s because a photograph of defendant was not available. At that
Page 484
time, Fling identified Robinson’s photograph as that of one of the occupants of the car on both January 30 and March 4. The police officer returned the next day, March 5, with the same set of photographs, except that a photograph which had now been obtained of defendant, was substituted for one of the other photographs in the array. Robinson’s picture remained in the array. Fling identified defendant as another occupant of the car he has been on both January 30 and March 4.
The court held that the identification made of Robinson from the photo lineup was valid and that Fling also had an independent basis for that identification. The identification of defendant’s photograph was suppressed because the photo lineup was found to be unduly suggestive. However, the court ruled that Fling had an independent basis for his identification of defendant, and that he would therefore be allowed to make an identification of defendant in court.
[1-4] A conviction based on an identification at trial will be set aside only if prior identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood or irreparable misidentification which denies the defendant due process of law. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. Even if there has been an illegal confrontation between a witness and a suspect, the witness may make an in-court identification if there is an independent source upon which to base such an identification. People v. Renfrow, 193 Colo. 131, 564 P.2d 411; Glass v. People, 177 Colo. 267, 493 P.2d 1347. Where there has been an impermissibly suggestive identification procedure conducted by the police, it is the burden of the People to show by clear and convincing evidence that the in-court identification was not the result of suggestion, but was the product of the witness’s own recollection. Sandoval v. People, 180 Colo. 180, 503 P.2d 1020. The totality of circumstances must be considered in deciding whether or not an independent basis for the identification exists, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and the following factors, among others, should be considered: The opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the leval of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. [5] Defendant claims that the People failed to sustain their burden of showing that Fling’s identification had a basis independent from the tainted photo lineup. We disagree. While Fling did not observe the actual crime, he did testify as to his opportunity to observe the suspect car and its front seat occupants at close range on January 30. Also, his conversation about the burglary with Mrs. Brown within 45 minutes after hisPage 485
encounter with the vehicle gave him reason to remember this encounter. Most importantly, on March 4, 1975, Fling again observed the car and its occupants, and was sufficiently certain that the car and two of the persons he saw entering it were the same as he had seen on January 30, that he stopped near the car, wrote down its license number, and gave the information to the victim of the burglary. This subsequent “identification” by Fling occurred before the police had ever contracted him. Additionally, his identification of Robinson on March 4 from an untainted photo lineup bolstered Fling’s assertion that he could identify some of the people he saw in the car on January 30 and March 4. All of these facts, when considered together, were sufficient for the trial court to find that the evidence was clear and convincing that Fling had a basis independent of the tainted photo lineup to identify defendant, and the court’s findings therefore will not be disturbed on review. People v. Knapp, 180 Colo. 280, 505 P.2d 7.
Defendant also contends that it was reversible error for the district attorney to ask defendant whether the offense of possession of burglary tools, which constituted a prior felony conviction, was the offense with which he was originally charged in that case.
Section 13-90-101, C.R.S. 1973, permits the showing of prior felony convictions for the purpose of impeaching the credibility of any witness, including a defendant. However, it is immaterial what the grounds for arrest or the original charges were, and if such information is elicited by improper questions, it may be grounds for reversal. People v. Robles, 183 Colo. 4, 514 P.2d 630. Here, the question was clearly improper. However, because of an immediate objection by his counsel, which was sustained, no information was elicited from defendant as a result of the question and the matter was not pursued further.
[6] Not every improper question or attempt to present improper evidence mandates a new trial. See, e.g., People v. Goff, 187 Colo. 103, 530 P.2d 514; People v. Knapp, supra; Lee v. People, 170 Colo. 268, 460 P.2d 796. The decision as to whether the prosecutor’s conduct mandated a new trial was within the sound discretion of the trial court, and will not be disturbed unless there has been a manifest abuse of discretion. Lee, supra. Defendant has the burden of showing prejudice in this case, and his conjectures about the possible prejudicial effects of the question are insufficient to sustain this burden. See Segura v. People, 159 Colo. 371, 412 P.2d 227. The court instructed the jury that evidence which had been stricken had to be disregarded and that statements of counsel were not evidence. We must presume the jury followed this instruction, Goff, supra, and therefore we find no abuse of discretion by the trial court in refusing to grant defendant a new trial.Judgment affirmed.
JUDGE RULAND concurs.
Page 486
JUDGE KELLY dissents.
JUDGE KELLY dissenting:
I respectfully dissent.
The ultimate question in this case — whether Fling’s in-court identification testimony should have been admitted — divides analytically into two inquiries: First, was Fling’s testimony relevant to the issue of guilt, and second, was an adequate foundation laid for the admission of that testimony? The majority does not address the first problem posed by Fling’s testimony, and answers the second question affirmatively. In my view, the record requires a negative response to both.
I.
The majority does not consider the relevance of Fling’s testimony, and, although this issue was not raised by the defendant, it is of greater initial concern to me than the adequacy of the foundation laid by the People for admission of the testimony. For, if the testimony is not relevant to the issue of guilt, the adequacy of the foundation is of no consequence, there being no nexus between the defendant and the crime.
In my view, Fling’s observations on January 30, even if taken as true, are not probative of any material issue. There is no logical or rational legal connection between Fling’s proffered evidence and the issue of Huguley’s guilt. Absent this connection, the evidence is irrelevant, and, therefore, inadmissible. 1 S. Gard, Jones on Evidence § 4.1 (6th ed.) McCormick on Evidence § 85 (E. Cleary 2d ed.); 1 J. Wigmore, Evidence § 28 (3d ed.); See Bush v. Jackson, 191 Colo. 249, 552 P.2d 509 (1976).
The evidence offered could, at most, establish the defendant’s presence in the vicinity of a crime 45 minutes before its commission. Given the present crime rate, many people have, at some time, been equally close in time and distance to criminal activity. That Huguley may have entered Fling’s parking lot does not indicate his participation in the burglary. Even if we indulge the possible inference that the automobile seen by Fling on January 30 is the one used by the burglars, nothing in the record supports the additional and necessary inference that Huguley was still in the automobile when the burglary occurred. Yet another inference is necessary to tie Huguley to the burglary: The record is devoid of evidence indicating that he was a participant and not a mere bystander. People v. Braly, 187 Colo. 324, 532 P.2d 325 (1975).
Thus, even if Fling’s testimony was properly admitted, at least three inferences are necessary to establish Huguley’s guilt. Criminal convictions cannot rest on a concatenation of inferences. Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952). Fling’s testimony should have been excluded as irrelevant and the majority’s failure to confront this issue
Page 487
has led it into error regardless of its analysis of the foundation issue.
II.
The record also shows that the trial court erred in failing to suppress Fling’s in-court identification testimony. Under established legal principles, such testimony must be based on certain foundation facts, and, here, the People have failed to produce the required foundation.
The majority correctly cites Sandoval v. People, 180 Colo. 180, 503 P.2d 1020 (1972), as establishing the principles applicable to this case, but the majority misapprehends the duality of the test. I Sandoval, the Court quotes from Constantine v. People, 178 Colo. 16, 495 P.2d 208 (1972), where it was said:
“It is the burden of the People to show by clear and convincing evidence that any suggestion was not present and that the identification was the product of the victim’s own recollection. Stewart v. People, 175 Colo. 304, 487 P.2d 371; Martinez v. People, 174 Colo. 125, 482 P.2d 375.” (emphasis added)
Under Sandoval, identification testimony is admitted and the issue of credibility is left to the jury once the People show by clear and convincing evidence that no suggestion was present in the out-of-court identification procedures. But where the trial court properly rules that this burden has not been discharged, as it did here, the People must then provide clear and convincing evidence that the in-court identification is a product of the witness’s own observations and memory, uninfluenced by the suggestive out-of-court identification.
Here the People did not meet this burden. The burden could only have been met by clear and convincing evidence that Fling’s testimony was based wholly upon his contact with the defendant on January 30, and was in no way influenced by or the product of the suggestive photographic display Stewart v. People, supra; Martinez v. People, supra; Fresquez v. People, 178 Colo. 220, 497 P.2d 1246 (1972).
In Constantine, supra, for example, the Court noted that facts in the record supported the trial court’s finding that the witness had a sufficient independent source upon which to base his in-court identification. In Fresquez, supra, where the trial court properly suppressed evidence of illegal lineup procedures, the Supreme Court said, “The burden, therefore, was on the People to show by clear and convincing evidence that there was an independent source of recollection in order to have an in-court identification.”
Thus the crucial inquiry, once the illegality of the photo display is established, is whether the identification testimony springs from observations so divorced from the suggestive display as to be purged of the taint. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967). In determining whether the People have met this burden, we are governed by Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401
Page 488
(1972):
“The central question [is] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive . . . . [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity to view the witness at the time of the crime, the witness’degree of attention, the accuracy of the witness’ prior description of the criminal, the leval of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (emphasis added)
People v. Jones, 191 Colo. 385, 553 P.2d 770 (1976).
The trial court here made no findings as to any of these factors. This would, ordinarily, warrant a reversal and remand for adequate findings. In this case, however, the record itself reveals the adequacy of Fling’s testimony as a matter of law. Not one of the factors enumerated in Neil v. Biggers has been satisfied.
Fling did not view the defendant at any stage of the criminal transaction. He did not know that any criminal activity had taken place until 45 minutes after the automobile in question left his parking lot Compare People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973), and Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971). Nothing aroused Fling’s suspicions or otherwise focused his attention on the car or its occupants. Compare Martinez v. People, supra.
The record is replete with these and other indications of Fling’s inattentiveness and faulty memory. He testified that during his estimated two-to-four minute conversation with the driver of the yellow automobile he was largely concerned with other vehicles entering and leaving his parking lot. His observations of the occupants of the yellow car were obviously limited, for, when asked, Fling was unable to identify or describe which of the defendants drove the car. Compare McGregor v. People, 176 Colo. 309, 490 P.2d 287 (1971).
Thus, it is not surprising that Fling gave no prior description of the facial or physical characteristics of the occupants of the vehicle, one of the factors to be considered under Neil v. Biggers, supra. Compare Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971), and United States v. Milano, 443 F.2d 1022 (10th Cir. 1971). Indeed, there was no evidence at the Wade
hearing, or even at trial, that Fling had described or could describe any of the facial characteristics of the defendant upon which he claimed to base his identification. At no time prior to the photo display was Fling in touch with the police about his purported observations, and when he was shown the photos, he was advised that the the vehicle had been located and its occupants detained. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
Page 489
In addition, the record is silent on whether Fling’s supposed recollection of the defendant’s facial characteristics was based on his observations of January 30 or March 4. The critical, and only relevant recollection, if Fling had any, was that of January 30. Fling had two separate opportunities to view the parties, one on January 30 and the other on March 4. It is never made clear in the record whether Fling’s identification of the defendant was based on his observations of January 30 or those of March 4. Each time the question was propounded, it was asked equivocally. Evidence that Huguley may have been in the car on March 4 is not evidence that he was an occupant of the car on January 30. Automobiles change occupants over the course of five weeks.
While the length of time between the commission of the crime and confrontation is the final factor for consideration under Neil v. Biggers, supra, Here, it is not the length of the gap between January 30 and March 5 that is critical. Fling’s own testimony shows that he had no memory of the events of January 30, and thus, there was no recollection which the passage of time could warp. The following exchange is demonstrative of Fling’s failure to recall the events:
“Q And you don’t remember who was sitting the automobile on the 30th of January, 1974 (sic)?
“A No, I don’t.”
It is possible that one with Fling’s experience might accurately remember an automobile for several weeks. However, the record reflects that, in making his identification, Fling relied solely on his recollection of the automobile, his observations of March 4, and the impermissible photographic display. Although, after persistent questioning at trial, Fling finally stated that the defendant was an occupant of the vehicle on both January 30 and March 4, it becomes increasingly apparent, as one studies this record, that Fling’s identification was based upon the defendant’s hapless occupancy of the vehicle Fling saw on March 4.[1]
I cannot imagine a more dangerous precedent that the affirmance of a conviction which may have been based solely on the defendant’s presence in an automobile 34 days after the commission of a crime.
The attempt of the People to show that Fling had an accurate and independent recollection of Huguley’s presence in the automobile on March 4 is an effort, and in light of the majority opinion, an apparently successful effort, to turn our attention from the crucial point: Did Fling have an accurate and independent recollection of Huguley’s presence in the
Page 490
automobile on January 30? The fact remains that there was no foundation provided by the People showing any independent source for Fling’s in-court identification. Fling’s testimony, viewed as a whole, merely amplifies his incredibility and demonstrates the People’s failure to purge the identification of the primary taint.
The United States Supreme Court has observed:
“. . . [I]mproper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. . . . This danger is increased if the police display to the witness . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” Simmons v. United States, supra; see also R. Buckhout, Eyewitness Testimony, supra.
Each of the dangers noted in Simmons is present here.
The identification procedures employed in this case give rise to a substantial likelihood that this defendant has been misidentified. Neil v. Biggers, supra; Neighbors v. People, 171 Colo. 349, 467 P.2d 804 (1970). In my view, there is no foundation for the identification. The defendant’s conviction should be reversed, and he should be discharged.
Page 491