Fresquez v. People

• Decision Date: 08 May 1972
• Docket Number: No. 24318,24318
• Parties: Frank Joseph FRESQUEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1246

497 P.2d 1246

178 Colo. 220

Frank Joseph FRESQUEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 24318.

Supreme Court of Colorado, En Banc.

May 8, 1972.

William M. Cohen, Peter Rogers, Boulder, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Eugene C. Cavaliere, Asst. Atty. Gen., Denver, for defendant in error.

HODGES, Justice.

Defendant Frank Fresquez was found guilty by a jury of grand theft and conspiracy to commit grand theft. By writ of error, he urges reversal on several grounds, none of which have merit as a basis for reversing this conviction. We therefore affirm the trial court's judgment.

These are the facts pertinent to the resolution of the significant issues presented. On February 16, 1968, at about 5:00 p.m., two men entered a Boulder jewelry store. One of the men, later identified as the defendant, asked to see silverware, and he went to the rear of the store with the clerk, Mrs. Cortese. The second man remained at the front of the store, near a display case containing diamond rings. After five to seven minutes, the first man joined the other at the front of the store at the diamond display case. A short time after the two men left the store, a tray of diamond rings valued at approximately $2,145 was discovered missing. The owner of the store testified that he had last seen the rings about 30 minutes before the men entered his store, and that between the time he last saw the rings and the time they were discovered missing the two men were the only customers who had been in the store.

The police were notified and descriptions of the two men were given by Mrs. Cortese and by the store owner, Mr. Whittingham. Mrs. Cortese's description was in all respects similar to those she later gave with the exception that her first description deleted any mention of acne scars or pockmarks on the face of the man to whom she had shown the silverware. Later that same evening, two detectives went to Mrs. Cortese's home where they showed her 4 to 5 sheets of paper each containing 25--30 photographs. Mrs. Cortese made no identification from these photographs.

On March 4th, the detectives returned to Mrs. Cortese's home with 10 glossy photographs and a Denver police bulletin depicting six wanted men. The police bulletin contained a picture of defendant Fresquez. The bulletin was apparently used because no glossy photo of Fresquez was available. Mrs. Cortese identified the picture of the defendant as the man who had been in the store, although she said that she would prefer to see him in person before making a positive identification as she did not like to make identifications from pictures.

On March 6th, Mrs. Cortese was taken to Denver to view a police lineup. The defendant was one of the subjects and Mrs. Cortese identified him at that time.

A pretrial hearing was held on defendant's motion to suppress any in-court identifications. After considering a great deal of testimony, with searching cross-examination, the judge denied the motion to suppress and ruled, in effect, that Mrs. Cortese could make an in-court identification based on an independent recollection of the image of the defendant in her mind which she had made at the time of the event. At this hearing, the trial judge made no ruling as to the admissibility of any testimony regarding the extra-judicial identification procedures. With respect thereto, he left two questions open. One, whether the defendant was represented by counsel at the lineup, as the district attorney offered to prove that a representative of the Public Defender's office had been present. Secondly, only 7 of the 10 glossy photographs shown to Mrs. Cortese on March 4th were produced at the suppression hearing, and none of the five sheets of pictures shown to her on the night of the theft were produced. The court instructed the district attorney to attempt to produce these at the trial.

At trial, the People presented only two witnesses in their case-in-chief and one in rebuttal. Mrs. Cortese identified the defendant as the man in the store. At the close of her direct testimony, defense counsel requested at an In camera hearing that the pictures which were not produced at the suppression hearing be made available so that he could use them in cross-examination in order to challenge the credibility of Mrs. Cortese's in-court identification.

At this In camera hearing, it was represented to the trial court by the district attorney that these photographs could not be produced because they were apparently not identified or retained in the investigative file of this case after they were shown to Mrs. Cortese. In effect, the trial court then ruled that these items were not material in any event because the trial court was thereupon ruling that evidence pertaining to the lineup and the photographic displays be excluded.

It is not clear from the record exactly why these identification procedures were ordered excluded, since the trial judge made no specific findings. No attorney representation may have been the basis for excluding the lineup. Why the trial judge excluded evidence by the district attorney regarding the photographic displays is, however, obscure. No finding was made except the finding at the pretrial In camera hearing that Mrs. Cortese could make an in-court identification based upon an independent recollection of the defendant which she had made in her mind at the time of the event. It is implicit, we believe, in this finding that the trial judge was satisfied from all the evidence presented that the photgraphic displays and the lineup were not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.

We make note of defense counsel's statement to the trial court during this In camera hearing that the photographs which were shown to Mrs. Cortese, but which whenever produced, were the essential items being requested by him for use in his cross-examination of Mrs. Cortese. To this the trial court again stated its ruling that the pictures were not material. The court then stated to the defense counsel that 'You are entitled to use any picture that we have here . . .' in the cross-examination of Mrs. Cortese.

Just prior to the termination of this In camera hearing, the trial court made a ruling that defense counsel's 'request on behalf of the defendant is denied.' As we view the record, the only request which the defendant's counsel made was to have those pictures, which were not produced at the pretrial In camera hearing, be now made available to him for cross-examination purposes. The court then added 'there may be no use of The pictures, but only oral examination of the witness as to whether or not she has seen The pictures.' (Emphasis added.)

It is our view, in considering the entire record of this In camera hearing, that the above prohibition against the use of 'the' pictures applies only to those pictures which could not have been made available. This is so because the ruling then goes on to state that the witness could be questioned regarding the circumstances under which she viewed these pictures. As to the other pictures which were available, the trial court had already ruled that defense counsel could utilize them in his cross-examination.

The defense consisted of the testimony of the defendant's brother who had already pleaded guilty to a conspiracy charge growing out of the same event. He testified that it was not the defendant, but someone else who was involved with him in the theft. He also stated that he had not been in a camera shop across the street from the jewelry store on the same day the jewelry store theft occurred.

The People then presented in rebuttal the testimony of the owner of a camera shop located across the street from the jewelry store. This person identified the defendant and his brother, who was sitting in the back of the courtroom; he also testified that both had been in his store about thirty minutes before the alleged offense at the jewelry store. No evidence was presented to indicate whether or not the diamond rings, or any part of them, were ever recovered.

On the basis of the foregoing facts and our interpretation of the trial judge's ruling at the pretrial suppression hearing and the In camera hearing during the trial, we now discuss the several grounds upon which the defendant maintains that the trial court committed reversible error.

I.

It is maintained that the trial court erred in allowing the in-court identifications of the defendant. The defendant argues that the in-court identifications were allowed without a showing by clear and convincing evidence that they were not tainted by the pretrial identification procedures, which were excluded from evidence by the trial judge. He argues that there was no showing of an independent source as required by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

We agree that the People did not meet their burden of showing by clear and convincing evidence that defendant was represented by counsel at the lineup under the Wade-Gilbert-Stovall doctrine. Lineup testimony was therefore properly excluded. The People also had the burden of showing that the photographic identification was not 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' The trial court excluded this for no given reason, but obviously not because photographic identification was unduly suggestive. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. 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. People v. Bowen, Colo., 490...