People v. Gonzales, 79CA0548

Decision Date23 April 1981
Docket NumberNo. 79CA0548,79CA0548
Citation631 P.2d 1170,44 Colo.App. 411
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cruz John GONZALES, Defendant-Appellant. . II
CourtColorado Court of Appeals

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Morgan Rumler, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Gerash & Robinson, P. C., Scott H. Robinson, Denver, for defendant-appellant.

ENOCH, Chief Judge.

This is an appeal by defendant of his conviction of first degree kidnapping, nine counts of first degree sexual assault, and robbery. We affirm.

Defendant first contends that the trial court erred in permitting the in-court identification of defendant as the perpetrator of the crimes because he asserts such identification was tainted by suggestiveness in a prior photographic display in which the victim identified defendant as her assailant. The complaint of suggestiveness is based on an ink-mark, near defendant's photograph, that was on a manila folder used to display the pictures, and is further based on a police officer's comment to the victim to "concentrate on the things that could not be changed, such as eyes, face shape, lips, to keep in mind the fact that hair and facial hair could be changed ...."

Here, there is no indication or contention that the ink mark complained of by defendant was made in any way but inadvertently, and we do not find the presence of the mark to be in any way suggestive that defendant's photograph should be selected over any other in the display. Also, the comment by the officer was neutral as to all photographs in the display and did not suggest that any particular photograph should be selected. See United States v. Magnotti, 454 F.2d 1140 (2d Cir. 1972). Thus, the factors asserted by defendant were not suggestive, unduly or otherwise, and did not taint the in-court identification.

Furthermore, even if these factors were to be considered suggestive, they are outweighed by factors supporting the reliability of the photo-identification.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the United States Supreme Court wrote:

"(R)eliability is the linchpin in determining the admissibility of identification testimony .... The factors to be considered are ... the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself."

See also People v. Smith, Colo., 620 P.2d 232 (1980).

Here, the victim was in close contact with defendant for nearly three hours, including face-to-face contact during at least one of the sexual assaults against her. There was lighting in the parking lot where she was accosted, lights in the park where one of the assaults occurred, and headlights and street lights illuminated the vehicle during some of the time that defendant drove her in an automobile. The victim was not a casual observer, but rather "the victim of one...

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3 cases
  • People v. Owens
    • United States
    • Colorado Court of Appeals
    • January 29, 2004
    ...the perpetrator, or the person who looked most like the perpetrator, from the array. As noted by the division in People v. Gonzales, 631 P.2d 1170, 1171 (Colo.App.1981)(discussing a police directive to a witness to concentrate, when viewing a photo array, on things that could not be changed......
  • People v. Reynolds
    • United States
    • Colorado Court of Appeals
    • September 7, 2006
    ...trial court correctly declined to allow additional peremptory challenges available under § 16-10-104 in capital cases); People v. Gonzales, 631 P.2d 1170 (Colo.App. 1981)(same); see also Tribe, supra, 197 Colo. at 435, 593 P.2d at 1371 (distinguishing Hines on basis that first degree kidnap......
  • Com. v. Jones
    • United States
    • Pennsylvania Superior Court
    • March 22, 1985
    ...Submission of Cause, 72 A.L.R.3d 248, 253-254 (1976). See: People v. Maestas, 187 Colo. 107, 528 P.2d 916 (1974); People v. Gonzales, 44 Colo.App. 411, 631 P.2d 1170 (1981); Bryant v. State, 246 Ind. 17, 202 N.E.2d 161 (1964); State v. Atwood, 83 N.M. 416, 492 P.2d 1279 (1971), cert. denied......

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