People v. Borghesi

• Decision Date: 24 March 2003
• Docket Number: No. 01SC479.,01SC479.
• Citation: 66 P.3d 93
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Adriel BORGHESI, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

66 P.3d 93

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Adriel BORGHESI, Respondent/Cross-Petitioner.

No. 01SC479.

Supreme Court of Colorado, En Banc.

March 24, 2003.

As Modified on Denial of Rehearing April 14, 2003.

Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.

David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.

Justice BENDER delivered the Opinion of the Court.

I. Introduction

Defendant Adriel Borghesi was convicted of three counts of aggravated robbery. Two of the convictions were based upon an incident involving the taking of a store's property from two employees. The third conviction was based upon a separate and later incident involving a taking of the same store's property from a single employee. In People v. Borghesi, 40 P.3d 15 (Colo.App.2001), the court of appeals vacated one of the convictions arising from the first incident and held that the two charges were multiplicitous primarily because consecutive sentences such as those imposed for aggravated robbery convictions are mandatory, thus making disproportionate sentencing a distinct possibility. On a second, unrelated issue, the court of appeals held that the admission of out-of-court testimony based upon a photographic array did not violate the defendant's due process right to a fair trial because the array was not impermissibly suggestive.

We now reverse on the issue of the defendant's multiple sentences. We hold that the defendant's judgments of conviction were not multiplicitous because robbery and aggravated robbery are crimes intended to protect persons who control property taken by force and intimidation. Thus, a robber may be convicted of more than one count of robbery by taking commonly-owned property from more than one person. On the issue of the admissibility of out-of-court and in-court identification testimony, we hold that because the differences between the defendant's photograph and others in the array do not relate to a feature witnesses used to identify him, the array was not impermissibly suggestive and the admission of testimony concerning out-of-court identifications did not violate the defendant's right to due process. Hence, on the first issue we reverse the judgment by the court of appeals and return it to that court to address any issues raised by the defendant but not addressed in its opinion. On the second issue, we affirm the judgment of the court of appeals.

II. Facts and Proceedings Below

Late one evening, two clerks were working at Kitty's Adult Book and Video Store while one customer was present. In preparation for a shift change, both clerks were standing behind the counter and counting the store's money in the single cash register. Then, a man entered the store, started to come behind the counter where the two clerks were standing, and said, "O.k. boys, give up your shit now." When the first clerk jumped over the counter to the customer side in an effort to flee, the robber pulled out a hatchet and said he would "axe" the second clerk if the first clerk went anywhere. The first clerk then stopped and stood by as the second clerk gave the robber money from the register. When the second clerk was unable to open the safe, as the robber demanded, the robber repeatedly swung the hatchet into the counter.

When the robber moved away from the counter, the first clerk began to walk towards an exit in the rear of the store. The robber raised the hatchet at him and said "I will axe you, I will follow you." When the robber departed with the money from the register, the first clerk then ran out of the store and called the police. When the police arrived, both clerks and the customer described the robber as a white male, approximately six feet tall, and weighing between 150 and 160 pounds.

Six days later, a strikingly similar robbery occurred at the same bookstore. This time, however, only the second clerk was present. After a brief struggle with the robber, who again carried a hatchet, the clerk gave the robber the money from the cash register. According to the second clerk, the same man committed both robberies.

A year after the robberies, the police summoned the two clerks and the customer to review a photographic lineup of six pictures, one of which was a picture of the defendant. The six pictures all portrayed light-skinned Caucasian males of approximately the same age, weight, and hair coloring. Despite the physical similarities, the defendant's image stood out because his skin tone was significantly lighter, either due to the lighting when the picture was taken or to the overexposure of the film. The other five photographs were similar in terms of lighting, exposure, and skin tone. Additionally, the defendant's picture was distinguishable from the other photo because he was leaning slightly forward with his head tilted, while the others were squarely positioned facing the camera. Before showing the photographs to the clerks and customer, the officer provided each witness with a photographic lineup admonition, which addressed identification procedures and indicated that the witnesses should ignore any differences in the type or style of the photographs.¹ After reviewing the lineup, the first clerk identified the defendant as the robber, but stated that he was only 70% sure of his identification. The second clerk selected the defendant's picture, but later indicated that he was unsure of his identification. The customer selected two pictures, including the defendant's, that resembled the robber.

The defendant was charged with three counts of aggravated robbery. Two of the three counts arose from the first incident, naming the first clerk as a victim of the robbery and the second clerk as a separate victim of the robbery. The third count arose from the second incident, when only the second clerk was present.

Before trial, the defendant filed a motion to suppress any in-court and out-of-court identifications of the defendant by witnesses on the basis that the photographic lineup was impermissibly suggestive and inherently unreliable. The trial court found that that the officer who showed the witnesses the array took no suggestive measures that induced them to make inappropriate identifications. Despite the difference in appearance of the defendant's photograph, the trial court ruled that the array was not impermissibly suggestive. As a result, all three out-of-court identifications were admitted into evidence at trial.

At trial, the prosecution presented testimony from both clerks. The first clerk made an in-court identification, and stated that he was sure that the defendant was the robber. The second clerk was not asked to, and did not identify the defendant at trial. Instead, his pretrial identification was admitted into evidence, and he testified that he had selected the defendant's photograph because it appeared to be the closest match to the robber. He further testified that although the detective in charge of the lineup did not explicitly tell him who to pick, it was obvious based upon the detective's inflections during the identification procedure and because the defendant's image stood out from the others that the defendant's picture was the one to be chosen. The customer also testified about his pretrial identification of the defendant's picture, and stated that the detective mentioned that a suspect had been apprehended.² The defendant's theory of defense was mistaken identity.

A jury convicted the defendant on all three counts of aggravated robbery. The trial court sentenced the defendant to two consecutive ten-year sentences for the counts arising from the first incident and to a concurrent ten-year sentence for the count arising from the second incident.

On appeal, the court of appeals held that the two charges from the first incident containing two counts were multiplicitous, and accordingly vacated the defendant's conviction for the robbery charge that listed the first clerk as the victim of the crime. While the court set forth several factors in considering whether the defendant's convictions were multiplicitous, the court ultimately held that the two charges were unconstitutional "primarily" because consecutive sentences such as those imposed for aggravated robbery convictions are mandatory, thus making disproportionate sentencing a distinct possibility.³ Also central to the court's analysis was its conclusion that robbery is a crime against property, and as a result, when only one taking of property occurs—as in this case, the store's property—there can be only one conviction of robbery. Borghesi, 40 P.3d at 21. Concerning the testimony of the in-court and out-of-court identifications of the defendant, the court held that the photographic lineup was not impermissibly suggestive because the defendant's distinctive appearance alone did not lead to an identification by witnesses of the defendant as the robber. Accordingly, admission of testimony about identifications from the lineup did not violate the defendant's right to due process. Id. at 19.

We granted certiorari to review the judgment of the court of appeals on these issues.⁴

III. Each Victim of a Robbery Forms the Basis of a Separate Charge of Robbery

A. Introduction

The defendant argues that he committed only one aggravated robbery during the first incident because there was only one violent taking of property from a common owner. Therefore, his conviction of two counts of aggravated robbery is multiplicitous. In contrast, the prosecution argues that there were two robbery victims because the robber put both in fear of death or bodily injury and both possessed control over the property. Therefore, the defendant was properly convicted of two counts of...