People v. Dotson

• Decision Date: 17 January 2002
• Docket Number: No. 00CA1029.,00CA1029.
• Citation: 55 P.3d 175
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rhidale DOTSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

55 P.3d 175

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rhidale DOTSON, Defendant-Appellant.

No. 00CA1029.

Colorado Court of Appeals, Div. V.

January 17, 2002.

Rehearing Denied March 7, 2002.

Certiorari Denied October 7, 2002.

Ken Salazar, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Rhidale Dotson, appeals from the judgments of conviction and sentences entered upon a jury verdict finding him guilty of aggravated robbery, conspiracy to commit aggravated robbery, second degree assault, and first degree burglary. We affirm, but remand for amendment of the mittimus.

The victim had placed an advertisement in the newspaper to sell two electronic keyboards. He received a call regarding the ad and arranged a meeting time. Three men came to his home. While the victim was setting up the keyboards and other equipment, he turned around and saw that the three were pointing guns at him. Two of the men took the equipment, and the third forced the victim to his knees and struck him several times with a gun.

Several weeks later, the victim was shown three photo arrays but was unable to make any identification. Two weeks thereafter, the investigating detective learned that a keyboard case had been pawned by defendant's brother. The victim was then shown two additional photo arrays, each with six photographs. The first included a photograph of defendant's brother, and the second included a photograph of defendant. The victim positively identified defendant as the third assailant, the one who had hit him with the gun. The victim was then shown the keyboard case, which he identified as his own.

Defendant was arrested and charged with aggravated robbery, conspiracy to commit aggravated robbery, second degree assault, and first degree burglary. Before trial, defendant filed motions to suppress the evidence of the victim's out-of-court identification and other evidence seized from defendant's home. The court denied the motions. The jury found defendant guilty as charged. Defendant was sentenced to twenty years on the aggravated robbery count, fifteen years on the second degree assault count, and ten years on the crime of violence count, with those sentences to run consecutively to one another and concurrently with the five year sentence on the conspiracy count.

I.

Defendant contends that the trial court committed reversible error by failing to suppress the evidence of the victim's identification of defendant from the photographic array. We disagree.

A pretrial identification procedure violates a defendant's due process rights if it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." People v. Monroe, 925 P.2d 767, 771 (Colo.1996)(quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968)). The question of whether a pretrial photographic identification procedure is impermissibly suggestive must be resolved in light of the totality of the circumstances. People v. Monroe, supra. An out-of-court identification made as a result of an unnecessarily suggestive identification procedure is inadmissible unless the identification can be shown under the totality of circumstances to be reliable. People v. Mattas, 645 P.2d 254 (Colo.1982).

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, 914 P.2d 434 (Colo.App.1995). Exact replicas of the suspect's physiognomy are not required. People v. Bolton, 859 P.2d 311 (Colo.App. 1993).

Here, the victim had described his assailant as a tall black man between twenty and thirty years old with a round face. All the photo arrays shown to the victim included men of the same age and race as defendant. In the array that included defendant, several of the other men were wearing white T-shirts similar to that of defendant. The other subjects in the photos also matched defendant in hair length and style, and several have faces approximately the same shape as defendant's.

A.

Defendant contends that the array was impermissibly suggestive because the background of his photograph was much darker than that of the other five. He also contends that in the photograph his facial features appeared much darker than they really are and that this led the victim to select his photograph. We disagree.

Much of defendant's argument is in reference to a color copy of the original photo array. In the copy, defendant's features are so dark as to be almost unrecognizable. However, the record shows that the victim identified defendant from the original photographic array, in which defendant's features are more clearly portrayed, and then circled and initialed the same picture on the color copy.

Although the background of defendant's original photograph is somewhat darker than the others, it is not so striking or distinctive as to be impermissibly suggestive and to give rise to a substantial likelihood of irreparable misidentification.

B.

Defendant also contends that the out-of-court identification was otherwise unreliable because it occurred two months after the incident and because, before being shown the last two arrays, the victim was told that a keyboard case had been recovered and was thus led to infer that the arrays included a suspect in the case.

The United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), articulated a five-point totality of circumstances test to be used in determining the reliability of an identification. The factors include: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the degree of attention of the witness; (3) the accuracy of prior descriptions given by the witness; (4) the level of the witness's certainty demonstrated at the later confrontation; and (5) the length of time between the crime and the confrontation.

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 to be accorded it is a matter for the jury. People v. Monroe, supra.

The victim testified that he observed his assailant inside his home for at least fifteen minutes. The victim's description included the approximate age, height, and clothing of the assailant, as well as specific details about his teeth and the shape of his head. The victim quickly identified defendant from the photograph and was positive about his identification.

Eight weeks had elapsed before the victim was shown an array that included defendant's picture. However, the extent of the delay is but one factor to be considered and is not per se an indication of unreliability. See People v. Walker, 666 P.2d 113 (Colo.1983)(identification of defendant made twenty months after incident was permissible). The jury was capable of considering the delay, as well as the other circumstances of the photo array, in determining whether defendant was mistakenly identified as the assailant.

We agree with the trial court's conclusion that, under the totality of the circumstances, the victim's identification of defendant was not unreliable as a matter of law. Therefore, the trial court properly refused to suppress the evidence of identification.

II.

Defendant next contends that the trial court erred in admitting evidence seized in the search of his home. We reject the contention.

Six law enforcement officers went to defendant's home to execute an arrest warrant for theft by receiving. When defendant answered the door, the officers stepped in and arrested him. According to the officers, defendant then consented to a search of the premises. Two keyboards were found, but they were not seized at that time. This information was communicated to the detective investigating this case, and he used it as the basis for obtaining a search warrant. The two keyboards were seized in a search conducted pursuant to the warrant.

Defendant argues that the warrantless search accompanying his arrest was unlawful and that his consent was not voluntarily given. He maintains that because of the overwhelming display of force, and the fact that he was in handcuffs at the time, he was not free to refuse the request to search. The trial court ruled that the search was consensual and also ruled, in the alternative, that the keyboard later identified by the victim was in plain view at the time of the arrest and was therefore properly seized.

Warrantless searches are deemed unreasonable unless they satisfy an exception to the warrant requirement. One such exception is consent. No search warrant is required where consent, in light of the totality of the circumstances, has been freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Herrera, 935 P.2d 956 (Colo.1997). Consent to a search is voluntary if it is "not the result of duress or coercion, express or implied, or any other form of undue influence exercised against the defendant." People v. Thiret, 685 P.2d 193, 201 (Colo.1984).

In reviewing a determination as to whether a voluntary consent was obtained, we give deference to the factual findings of the trial court, whose function it is to weigh the evidence and determine the credibility of the witnesses. People v. Herrera, supra. As long as there is support for a trial court's findings of fact, we will not overturn them, even though a contrary position may have support in the record. People v. Thomas, 853 P.2d 1147 (Colo.1993).

Here, the evidence revealed that six officers, two in uniform, went to defendant's home to arrest him. When he answered the door, he was...