People v. Garcia, 78-1195

• Decision Date: 13 November 1980
• Docket Number: No. 78-1195,78-1195
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Eugene GARCIA, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 255

627 P.2d 255

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Eugene GARCIA, Defendant-Appellant.

No. 78-1195.

Colorado Court of Appeals, Div. III.

Nov. 13, 1980.

Rehearing Denied Dec. 4, 1980.

Certiorari Denied April 6, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Larry R. Martinez Linda E. Pipo, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Brenman, Epstein & Zerobnick, P. C., Martin Zerobnick, Thomas D. Birge, Denver, for defendant-appellant.

The defendant, Richard Eugene Garcia, appeals his conviction of second degree murder and two counts of first degree assault. We affirm.

STERNBERG, Judge.

Garcia's conviction stems from a shooting incident which took place on November 27, 1977, outside a Denver bar. Garcia was one of a group of people in the bar watching a telecast of a football game. Richard Savage, Gilbert Lopez, and Doris Dietz entered and tried to play the jukebox. An argument arose over whether the music should be turned on during the game. A scuffle ensued, and several people, including Garcia, left the bar. Shots were fired outside, and as a result Lopez and Dietz were wounded and Savage was killed.

I.

The first allegation of error concerns circumstances leading to Dietz' identification of Garcia at trial. After the shooting, three attempts were made to have her describe the person who had fired the gun. The first occurred in the hospital the morning after the shooting when two detectives tried to obtain from her a description of her assailant. They abandoned their efforts when it became apparent that Dietz was still feeling the effects of anesthesia.

After she was discharged, Dietz gave the detectives a sketchy description of the assailant. Based on this information, they prepared a photographic array. On the morning of Garcia's first scheduled preliminary hearing, Dietz viewed five photographs. She selected two of them; one was a photograph of Garcia. In the picture he had long hair and a mustache while at the time of the shooting, his hair was short and he was clean shaven. After viewing the photographic lineup, Dietz was standing in the hall outside the courtroom awaiting the start of the preliminary hearing when she saw Garcia, handcuffed and dressed in jail clothing, being brought in by uniformed officers. At that point, she stated that he was the man who had fired the shots.

Prior to trial, the court held an evidentiary hearing on a motion to suppress Dietz' in-court identification of Garcia. Garcia maintained that it resulted from unduly suggestive police procedures in conducting an out-of-court identification by the witness. In support of this contention, Garcia argued that Dietz' inability to identify him prior to having seen him in a highly suggestive setting indicated that her recognition of him was a product of the circumstances under which he was observed. Dietz, however, testified that her identification was based on her recollection of the shooting. The trial court found that she had an independent basis for her identification of Garcia, thus permitting her to identify him at trial.

As in People v. Horne, Colo., 619 P.2d 53, (1980), the suggestiveness of the out-of-court identification was assumed. In such cases, the test for determining admissibility of proposed in-court identification testimony is whether the totality of circumstances surrounding the witness' identification of the accused was so impermissibly suggestive, and thus conducive to irreparable mistaken identification, that the accused would be denied due process if the identification testimony were received. People v. Horne, supra. If so, the testimony must be excluded. Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969); People v. Roybal, Colo.App., 609 P.2d 1110 (1979). However, even if the witness' identification was influenced by impermissibly suggestive circumstances, the witness may testify if he had a sufficient independent basis for the identification. Sandoval v. People, 180 Colo. 180, 503 P.2d 1020 (1972).

In determining the reliability of an independent source of identification, the factors to be considered include the witness' opportunity to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation with defendant; and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); People v. Jones, 191 Colo. 385, 553 P.2d 770 (1976).

Here the trial court concluded that there was an independent source for Dietz' identification of Garcia. It stated that little significance could be attached to the inconclusive interview held shortly after her surgery. In addition, it found that she did give a description of defendant at the second interview. Furthermore, it determined that her difficulty in identifying defendant from a photograph which did not accurately depict his exact appearance on the date of the crime does not serve to weaken her subsequent identification. Finally, it believed her testimony that her in-court identification was based on her observations made during the occurrence of November 27, 1977.

While the trial court's findings do not address precisely all of the factors spelled out in Neil v. Biggers, supra, and People v. Jones, supra; cf. Huguley v. People, 195 Colo. 259, 577 P.2d 746 (1978), there are sufficient specific findings with respect to the accuracy of the witness' prior description of Garcia, the primary issue in dispute. These findings are supported by the evidence. Consequently, this case differs from Huguley v. People, supra, where the trial court found the ultimate fact in issue but failed to make any findings of the basic, underlying facts necessary to support its conclusion. Thus, the findings are sufficient to sustain the admission of the identification testimony and it is unnecessary to remand for additional findings.

II.

The second error asserted on appeal relates to the admission of a bullet allegedly removed during surgery on Dietz. It was identified at trial as having been fired from a gun found in defendant's house. The surgeon who operated on Dietz testified that he removed a bullet and gave it to operating room personnel, and a nurse who came on duty after the surgery testified that she had taken a bullet marked "Doris Dietz" from a locked narcotics cabinet, marked it, and forwarded it to the coroner. However, no evidence was offered to account for possession of the bullet from the time the physician released it until the time the nurse located it.

Thus, there is a break in the chain of custody, and defendant's objection to its admission should have been sustained. See People v. Atencio, 193 Colo. 184, 565 P.2d 921 (1977). Nevertheless, the erroneous admission of the bullet was harmless here in view of eyewitness testimony that defendant committed the crime. See People v. Brown, 192 Colo. 96, 555 P.2d 1163 (1976). The bullet itself was...