People v. Borghesi, No. 99CA1358.

• Decision Date: 01 March 2001
• Docket Number: No. 99CA1358.
• Citation: 40 P.3d 15
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Adriel BORGHESI, Defendant-Appellant.
• Court: Colorado Court of Appeals

40 P.3d 15

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Adriel BORGHESI, Defendant-Appellant.

No. 99CA1358.

Colorado Court of Appeals.

March 1, 2001.

As Modified on Denial of Rehearing June 14, 2001.

Certiorari Granted January 22, 2002.¹

Ken Salazar, Attorney General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Adriel Borghesi, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of aggravated robbery. We affirm in part and reverse defendant's conviction and sentence for one of the counts.

Late in the evening on September 13, 1997, an adult bookstore was robbed. At the time, two clerks and one customer were in the bookstore. The two clerks were in the process of changing shifts, and both clerks were standing behind the counter counting money. The robber approached and threatened the two clerks, one of whom jumped over the counter as if to leave the bookstore. The robber then pulled out a hatchet, swung it around, and threatened to harm the second clerk if the first clerk left the store. The second clerk gave the robber the money from the cash register. The customer had an unobstructed view of the robbery. The first clerk then escaped to a neighboring business and called the police. The first clerk and the customer gave generally similar descriptions of the robber to the police.

Six days later, late at night, the bookstore was again robbed by a man wielding a hatchet. This time, the only person in the bookstore was the second clerk, who engaged the robber in an altercation, sustained a cut on one hand, and ultimately gave the robber the money from the cash register. The second clerk's description of the robber was similar to the two descriptions given by the first clerk and the customer following the first robbery. He also stated that he thought the robber in the second robbery was the same person who robbed the bookstore on the earlier occasion.

One year later, all three witnesses were shown a photographic lineup containing defendant's photograph. The first clerk and the customer in the first robbery equivocally identified defendant. The first clerk positively identified defendant at trial as the robber. The customer did not identify defendant at trial.

The second clerk tentatively identified defendant in the photographic lineup, but later testified that his choice was influenced by the detective conducting the photographic lineup. The second clerk was also invited by the prosecutor's office to walk into the courtroom during defendant's preliminary hearing to see if he could identify anyone in the courtroom, whereupon he identified defendant as the robber. In addition, the second clerk identified defendant as the robber at the hearing on defendant's motion to suppress both the in-court and out-of-court identifications.

On two occasions prior to trial, however, the second clerk indicated he was unsure of his identification of defendant. The second clerk was not asked to, and did not, identify defendant at trial, and he testified that he was a poor witness. However, his pretrial identifications were admitted into evidence at trial.

The bookstore used a video surveillance system, which recorded both robberies. The videotapes, as well as several still photographs taken from these videotapes, were admitted into evidence at trial. An investigating officer testified that he recognized defendant as the robber on both of the videotapes.

Defendant was charged in two informations with three counts of aggravated robbery. The first information charged defendant with two counts of aggravated robbery for the September 13, 1997, incident, one count naming the first clerk as the victim and the other count naming the second clerk as the victim. The second information charged defendant with one count of aggravated robbery for the September 19, 1997, incident and named the second clerk as the victim.

The cases were consolidated for trial, and the jury convicted defendant on all three counts. The trial court sentenced defendant to two consecutive 10-year sentences for the first robbery and to a concurrent 10-year sentence for the second robbery, all to the Department of Corrections.

I.

Defendant first asserts that the photographic lineup was impermissibly suggestive and violated his constitutional right to due process. We disagree.

The question whether a pretrial photographic identification procedure is impermissibly suggestive must be resolved in light of the totality of the circumstances. People v. Monroe, 925 P.2d 767 (Colo.1996); People v. Bolton, 859 P.2d 311 (Colo.App.1993).

To warrant suppression, a pretrial photographic lineup must be so suggestive that it makes the identification, and any subsequent identification, unreliable as a matter of law. People v. Monroe, supra; People v. Harris,

914 P.2d 434 (Colo.App.1995).

A photographic array is not unduly suggestive "if the photos are matched by race, approximate age, hair type, and a number of other characteristics." People v. Harris, supra, 914 P.2d at 437. Exact replicas of a suspect's physiognomy are not required. See People v. Bolton, supra.

If a pretrial identification is not impermissibly suggestive as a matter of law, but is nonetheless tainted with some degree of untrustworthiness, it is admissible, and the weight it should be accorded is a matter for the jury. Juries can intelligently measure the weight to be given identification testimony that has some questionable feature. People v. Monroe, supra.

Moreover, if an out-of-court identification procedure is not unconstitutionally suggestive, the issue of whether an in-court identification has an independent source need not be addressed. See People v. Mack, 638 P.2d 257 (Colo.1981)

.

The pretrial photographic lineup in this case contains six color photographs. All the men depicted, including defendant, are light-skinned Caucasian males, about the same age and weight, with short to extremely short hair. The physiognomy of each male pictured is unique. Defendant's image, however, stands out because his skin tone is considerably lighter than that of the others, due to the lighting or overexposure of the film. The other photographs are all strikingly similar to one another in terms of lighting, exposure, and skin tone. In addition, all the other men are squarely positioned in front of, and are looking into, the camera, whereas defendant is leaning forward with his head cocked at a slight angle.

While, when presented with the array, one's attention is immediately drawn to the photograph of defendant because of its distinctive appearance, this alone would not cause one to identify defendant as the robber. The individuals depicted in the photo array were matched in race, approximate age, hair type, weight, and a number of other characteristics.

In addition, the witnesses were unable to give a positive identification of defendant at the time the photographic lineup was presented to them. The first clerk, who identified defendant at trial and at the hearing on the motion to suppress, thought defendant's picture was the closest match and stated that he was only "70% sure" that defendant was the robber. The second clerk, who was present at both robberies but did not identify defendant at trial as the robber, identified defendant as the closest match in the photographic lineup, but later disavowed his identification to the authorities on at least two occasions. The customer picked defendant's photograph and one other photograph, but indicated that neither was identical to the robber.

We conclude, as did the trial court, that the photographic lineup evidence was not unreliable as a matter of law. The jury was fully capable of weighing this evidence along with other identification evidence in reaching its conclusions. Thus, we uphold the trial court's determination that the photographic array — although far from ideal — was not impermissibly suggestive. Having so held, we need not address the related issue of whether the prosecution provided an adequate independent basis for the first clerk's in-court identification of defendant.

II.

Defendant next argues that the evidence was insufficient to sustain his conviction for the second robbery. More particularly, he suggests that because he was never conclusively identified at trial by the second clerk who was the only witness to the second robbery, the evidence is insufficient. We disagree.

When the sufficiency of evidence is challenged on appeal, the reviewing court must determine whether the evidence viewed as a whole, and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988). In light of this deferential standard of review, we find that the evidence was sufficient to uphold the jury's verdict.

Evidence is unconvincing, and therefore insufficient, if it leaves too much room for speculation and conjecture and is equally consistent with a hypothesis of innocence as with that of guilt. Solis v. People, 175 Colo. 127, 485 P.2d 903 (1971). In other words, a mere modicum of relevant evidence cannot sustain a conviction beyond a reasonable doubt. People v. Gonzales, 666 P.2d 123 (Colo.1983).

In this case, the second clerk was the only witness to the second robbery, and his pretrial identification of defendant was equivocal at best. At the hearing on the motion to suppress, the second clerk identified defendant and stated that he thought defendant was the robber on both occasions. Unsure of his choice, the second clerk twice stated that he thought defendant might not be the robber. The second clerk was not asked to and...