Campbell v. People, s. 90SC86

Decision Date24 June 1991
Docket NumberNos. 90SC86,90SC95,s. 90SC86
PartiesEarl William CAMPBELL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

Miller, Hale & Harrison, Daniel C. Hale, Robert Bruce Miller, Boulder, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty., Gen., Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decisions in two separate cases, consolidated here, against the same defendant, Earl William Campbell, on the admissibility of expert testimony concerning the reliability of eyewitness identification. In People v. Campbell, 785 P.2d 153 (Colo.App.1989), the court reversed the defendant's conviction on grounds not before us 1 and remanded the case back to the trial court with directions. Because the admissibility of the proffered expert testimony on eyewitness identification was likely to arise at retrial, the court addressed this issue and concluded that the trial court did not err by excluding such testimony. In People v. Campbell, No. 87CA1956 (Colo.App. Nov. 30, 1989) (not selected for publication), the court reached the same conclusion and affirmed the defendant's judgment of conviction. We reverse the court of appeals holding and remand with directions on this issue in People v. Campbell, 785 P.2d 153 (Colo.App.1989), and remand with directions to vacate the judgment and return to the trial court in People v. Campbell, No. 87CA1956 (Colo.App. Nov. 30, 1989).

I.

The defendant's convictions arose from two separate robbery episodes in October 1986. The first robbery occurred at approximately 6:15 p.m. on October 3, 1986, at a convenience store in Franktown, Colorado. There were two witnesses to the robbery: Rebecca Herron (Herron), a store clerk, and Tammy Hill (Hill), a customer. At approximately 6:00 p.m., Herron took a short break from work in the back storage room. While on her break, Herron observed a white male wearing a blue stocking cap and a blue coat peer quickly into the storage room. Shortly thereafter, Herron returned to work to relieve the other cashier on duty. As she was approaching the cash register, she again saw the man with the blue hat wandering through the store. Meanwhile, Tammy Hill had entered the store with her two children. She too noticed the man as they passed each other in the store aisles. Eventually, the man approached the cash register and placed several items on the counter. He then pulled a gun from his pants, pointed it at Herron, and demanded all the store's money. As Herron was placing the money from the store's safe in a brown bag, Hill approached the counter with her children. The robber turned to her, placed his hand on her arm, and told her to take her children to the candy aisle. Hill never saw the man's gun, but she grabbed her children and took them to the back of the store. The robber then told Herron that he was going to shoot her. He pointed the gun at her and fired. The bullet missed Herron, ricocheted off the counter, and was later discovered lodged in the ceiling. After firing his gun, the robber fled from the store.

That evening, Herron and Hill each assisted Deputy Sheriff Gary Robinson in preparing separate composites of the robber. On October 24, 1986, Detective Dale Row showed a photographic lineup to Herron and Hill at different times. They each unequivocally selected the defendant from the photographic array. An information was filed against the defendant on October 31, 1986, for the October 3 robbery, charging him with attempted first-degree murder, aggravated robbery, theft, and one crime-of-violence count.

On November 24, 1986, a separate three-count information was filed against the defendant for an armed robbery at a Safeway store in Parker, Colorado, on October 10, 1986. There were also two witnesses to that robbery: Lester Palmer (Palmer), the store's manager, and Laura Christine Kelsay (Kelsay), a Safeway employee. The October 10 robbery occurred at approximately 6:15 p.m. Kelsey was working in the store's customer service room and was cashing Palmer's paycheck when a man approached Palmer from behind. The man asked Palmer if he was the store manager. Palmer turned to the man and acknowledged that he was. The man then told Palmer that he had a gun and ordered him to retrieve the store's money. Palmer told Kelsay that they were being robbed and that he would handle the matter. As Palmer handed the robber the money in the store's safe, the robber exposed the handle of the gun he was holding in his right pocket and warned Palmer that he would shoot if any attempt to sound an alarm was made. After receiving Palmer's word that he could escape unhindered, the robber fled from the store.

That evening, a police sketch artist prepared a composite drawing of the robber based on Palmer's description. Approximately one week after the robbery, Officer John Hindes requested that Palmer view a photographic lineup. Palmer was unable to make a positive identification and asked if he could see one of the suspects in the lineup in person. His request was not fulfilled. The following week, Officer Vernon Tolson asked Palmer to view another photographic lineup, from which he made an immediate positive identification of the defendant as the robber.

Kelsay was not asked initially to view a photographic lineup, nor did she assist in preparing a composite. Instead, two to three days after the robbery, Officer Hindes showed her three photographs, none of which depicted the defendant and two of which were photographs of a Gerald Wayne Baker. Kelsay indicated that she was ninety-percent sure that the two pictures of Gerald Baker resembled the robber. She was not positive, however, because she had only seen the robber's profile and the pictures displayed front-view shots. On October 21, 1986, Officer Tolson asked Kelsay to view the same six-picture photographic lineup that he had shown to Palmer. She hesitantly selected a photograph that was not the defendant, primarily because the subject wore glasses similar to the pair worn by the robber. In making this selection, Kelsay again stated that she was unsure about her choice because it was a front view of the subject and she had only seen the robber's profile. A second photographic array was subsequently shown to Kelsay consisting of profile shots of the same six subjects. She then positively identified the defendant as the robber. Prior to viewing any photographs, Kelsay had seen the composite drawing prepared with Palmer's assistance. Kelsay testified that she had voiced her concerns to Palmer about the accuracy of the composite drawing, stating that she thought the robber's glasses were different and that his face was more angular and his chin wider than the composite's depiction of the robber.

Following the defendant's arrest, combined motions hearings were held for both prosecutions against the defendant, which addressed the defendant's motion for appointment of an identification expert and his motion to suppress identification. All four of the eyewitnesses to the October 3 and October 10 robberies made positive in-court identifications of the defendant as the robber during these hearings. On March 24, 1987, the trial court granted the defendant's motion to appoint an identification expert. The court subsequently denied the defendant's motion to suppress identification on April 8, 1987, finding that the identification procedures used were not unnecessarily suggestive so as to render the in-court identification unreliable.

The trial for the October 3 robbery began on May 5, 1987. The prosecution's only evidence of guilt against the defendant was the testimony by the two eyewitnesses, Herron and Hill. No identification could be made from fingerprints that were lifted from the door of the convenience store following the robbery. Defense counsel's opening statement and cross-examination focused on the theory that the eyewitnesses to the crime had misidentified the defendant as the robber. 2 During trial, the defendant presented two alibi witnesses to establish that the defendant was looking at a rental home with a realtor in Woodland Park, Colorado, at the time of the offense. Defense counsel also sought to introduce testimony from Dr. Edith Greene, a psychology professor, on the reliability of eyewitness identification. Dr. Greene was prepared to testify that (1) contrary to popular belief, high levels of stress impair rather than improve memory; (2) the tendency of victims to focus on the weapon used during the crime reduces their ability to recall details about the offender's appearance; (3) there is no correlation between a witness's expression of confidence in his or her identification of a suspect and the accuracy of that witness's recollection; and (4) a witness's viewing of a composite drawing or photograph can influence the witness's memory of the criminal. Following defense counsel's offer of proof, the trial court denied admission of Dr. Greene's testimony. The court relied on the general acceptance standard for novel scientific evidence set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), to find that Dr. Greene's proffered testimony was not based on "scientifically established standard[s]," and further found that the proposed testimony would invade the province of the jury in evaluating witness credibility.

The trial for the October 10 robbery began on July 8, 1987. As in the first trial, no identification could be made from a set of latent fingerprints lifted from the crime scene. The defense again relied on a theory of misidentification, but this time no alibi witnesses were presented. On the admissibility of Dr. Greene's proffered testimony, the trial court took judicial notice of its prior ruling and excluded the evidence. The defendant was found...

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