No. 93CA0430Colorado Court of Appeals.
Decided April 7, 1994. Petition for Writ of Certiorari DENIED December 19, 1994.
Appeal from the District Court of El Paso County Honorable Douglas E. Anderson, Judge, No. 91CR3196
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JUDGMENT AFFIRMED
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Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Law Firm of William Muhr Associates, Edward L. Arcuri, III, Colorado Springs, Colorado for Defendant-Appellant
Division III
Criswell and Davidson, JJ., concur
Opinion by JUDGE TAUBMAN
[1] Defendant, Christopher S. Kemp, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of aggravated robbery, one count of conspiracy to commit aggravated robbery, and three habitual criminal counts. Defendant also appeals the life sentence imposed under the habitual criminal statute. We affirm. [2] The testimony at trial revealed the following. On May 13, 1990, a World Savings Bank branch in Colorado Springs was robbed and $580 was taken. The robber approached a teller window and ordered the teller to give him all of her twenties, fifties, and hundreds. The robber warned the teller not to activate the alarm and that he was armed. The robber took the money and left. [3] The branch manager observed the conversation between the robber and the teller. She felt that something was wrong. As the robber started to leave, the manager attempted to interrupt to see if she could be of any assistance. The teller told the manager to leave the robber alone because he said he was armed. As the robber left, the teller hit the activator button for the security camera. Pictures were taken, but destroyed before the trial. [4] The teller and the manager described the robber as a tall, thin, dark-complected man with a blue bandana around his head, a blue windbreaker, jeans, and tennis shoes. Both witnesses identified Kemp as the robber in a photographic line-up shown to them six months after the robbery. At trial, the witnesses also identified Kemp as the robber. [5] Another witness, who loaned his Ford Bronco to his son for the day, told the police that he saw his car in the parking lot when he was leaving a local cafeteria. He noticed that there were three men in his car, none of whom was his son. The witness reported the car stolen and described the driver as a thin man with long dark hair, mustache, and sunglasses. The car was later found in good condition. [6] The police investigation revealed that this Bronco had been used by the robber to flee the scene. The witness’ son later told the Colorado Springs Police that he had loaned the Bronco to Kemp on May 13, 1990, the date of the robbery. The witness’ son identified Kemp as the robber, based on statements made by Kemp to him. [7] Another witness acknowledged that, on the day of the robbery, Kemp had signed out of the community corrections facility in which he was incarcerated to look for a job. Kemp returned to the community corrections facility later that day and turned in the first page of his job hunting form. He never turned in the second page of the form, on which he was supposed to list the contacts he had made that day. [8] Defendant was convicted at trial and was sentenced to life imprisonment. I. Court Appointment of Identification Expert Witness
[9] Defendant first contends that the trial court erred when it denied his request for an appointed expert who would testify regarding the fallibility of eyewitness identifications. We disagree.
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The trial court has broad discretion to evaluate on a case-by-case basis whether expert testimony on this issue would assist the trier of fact to understand evidence or to determine facts in issue. We will not reverse the trial court’s ruling to admit or exclude such expert testimony unless the ruling is manifestly erroneous. Campbell v. People, 814 P.2d 1 (Colo. 1991).
[11] Here, the trial court correctly analyzed defendant’s offer of proof regarding expert testimony under the standards set forth in Campbell v. People, supra. It specifically found that the expert testimony regarding impairment of memory under stressful conditions was:[12] The trial court properly analyzed defendant’s request for an expert on the reliability of eyewitness identification under CRE 702 (assistance to the trier of fact) and CRE 403 (probative value outweighed by unfair prejudice, confusion of the issues, etc.). Thus, we conclude that the denial of defendant’s request for a court-appointed expert on the reliability of eyewitness identification was proper under Campbell v. People, supra, and was not manifestly erroneous.less probative considering the fact that there [were] two independent bank teller identifications. . ., along with one to two co-defendant identifications and additional corroborating evidence. . . In view of all the circumstances in this case, the court doubts the admissibility of the . . . expert testimony even though there would be some small helpfulness to the jury. . . . That helpfulness is clearly outweighed by confusion of the issues, the possibility of misleading the jury, considerations of undue delay and waste of time and resources.
II. Improper Identifications of Defendant
[13] Defendant next argues that the pretrial identifications should have been suppressed because they were the product of unduly suggestive line-ups. We disagree.
(Colo.App. 1986). [16] After hearing extensive testimony from defendant and the detective who prepared the line-up, the trial court concluded that there was nothing improper about the photographic line-up. Because we agree with the trial court’s determination that the procedures were proper and its conclusion is supported by the record, the out-of-court, line-up identifications were admissible and the trial court was not required to examine the other factors suggested by defendant.
III. Testimony of Prior Incidents
[17] Defendant further argues that the trial court improperly permitted identification testimony from witnesses involved in other, similar bank robberies. Again, we disagree.
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offer witnesses. The trial court then weighed the other factors, including the similarities between the crimes, and admitted the similar crime testimony for the limited purpose of identity. The trial court also instructed the jury before and after the testimony of each witness and in the general charge to the jury that the testimony was to be considered only for the purpose of identity. See People v. Garner, supra.
[20] The trial court properly applied the factors set forth in People v. Garner, supra, and People v. Spoto, supra, and its findings are supported by the record. Thus, we conclude that the trial court did not abuse its discretion when it admitted the similar crime evidence. IV. Admissibility of Hearsay Statements of Co-Defendant
[21] Defendant further contends that the trial court improperly admitted hearsay testimony of a co-defendant implicating defendant in the World Savings robbery. We disagree.
V. Sentencing Under Habitual Criminal Statute
[24] Defendant argues that he was improperly sentenced under the habitual criminal statute. First, he contends that the habitual criminal charges were not included in the original information and thus, could not be added by an amendment. Second, relying on § 18-1-410(1)(f)(I), C.R.S. (1986 Repl. Vol. 8B), defendant contends that the trial court should have applied the recent amendments to the habitual criminal statute that changed a mandatory life sentence to a sentence of four times the maximum presumptive range. Thus, defendant maintains he should have been sentenced to 64 years in prison, four times the maximum 16-year presumptive range sentence for aggravated robbery. See Sections 18-4-302(3), C.R.S. (1986 Repl. Vol. 8B) (class 3 felony) and 18-1-105(1)(A)(1), C.R.S. (1993 Cum. Supp.) (16-year maximum presumptive range for a class 3 felony). We disagree with both contentions.
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(2), C.R.S. (1986 Repl Vol. 8A), states in relevant part that:
[28] In 1993, the General Assembly amended the sentencing portion of § 16-13-101(2) to read: “and shall be punished for the felony offense to which such person is convicted . . . for a term of four times the maximum of the presumptive range . . . for the class of felony of which such person is convicted.” See §16-13-101(2), C.R.S. (1993 Cum. Supp.). The General Assembly expressly provided that this amendment would apply to offenses committed on or after July 1, 1993. Colo. Sess. Laws 1993, ch. 322, § 28 at 1975-6. [29] Whether a defendant is entitled to be resentenced under ameliorative amendments depends on the intent of the General Assembly as expressed in the statutory language. Amendments should be construed in a manner consistent with the effective date clause, while avoiding anomalous results. See People v. McCoy, 764 P.2d 1171 (Colo. 1988); People v. Gallegos, 789 P.2d 461Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony, or . . . of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished by imprisonment in a correctional facility for the term of his or her natural life.
(Colo.App. 1989). [30] Here, the General Assembly explicitly stated that the amendment to the habitual criminal statute only applies to offenses committed on or after July 1, 1993. Because defendant was convicted of an offense committed in 1991, the amendatory language does not apply to him. We do not address the effect of the amendment on defendant’s proportionality review because that issue was not raised.
VI. Trial Court’s Consideration of Acquittal
[31] Defendant also contends that during a proportionality review of his sentence the trial court improperly considered a crime of which he was acquitted. We agree with the defendant but conclude that this error was harmless.