People v. Hogan, No. 02CA0396.

Citation114 P.3d 42
Decision Date04 November 2004
Docket NumberNo. 02CA0396.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason HOGAN, Defendant-Appellant.
CourtCourt of Appeals of Colorado

Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

CASEBOLT, J.

Defendant, Jason Hogan, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of second degree kidnapping, one count of aggravated robbery, and two counts of crime of violence. Defendant also appeals the sentences imposed. We affirm.

Defendant accosted the victim with a gun in a parking lot and instructed her to drive to her bank and withdraw money. The victim, who was accompanied by her newborn baby and three-year-old niece, complied, while defendant sat in the front passenger seat.

After the victim withdrew the money and began to drive away from the bank, the victim's husband, who was fortuitously present in a separate vehicle, caught a glimpse of her and defendant, but he was unaware of the robbery. The victim dropped defendant off at an adjacent strip mall.

Several days after the incident, the victim identified defendant from a photo lineup. Her husband also identified him. The victim's mother, who had been shopping with the victim just before the incident, claimed to have seen defendant in another shopping mall and identified him at trial.

In addition, the police found a gun that they later showed to the victim. She initially identified it as the gun defendant had used. However, at trial she testified that it "looked like" the one defendant had used during the incident.

Following defendant's conviction, the trial court sentenced him to forty years in the custody of the Department of Corrections for the second degree kidnapping-robbery, twenty-five years for the aggravated robbery, and six years for each of the two counts of second degree kidnapping, to be served consecutively. This appeal followed.

I.

Defendant first contends the trial court erred in refusing to suppress identification testimony concerning a photographic array. Specifically, defendant asserts that the identification testimony is inadmissible because of impermissible suggestiveness in both the array and the manner in which it was conducted. We disagree.

The ultimate question as to the constitutionality of pretrial identification procedures is a mixed question of law and fact. Thus, we give deference to the trial court's findings of historical fact, but may give different weight to those facts and may reach a different conclusion. Bernal v. People, 44 P.3d 184 (Colo.2002).

In challenging the admissibility of out-of-court photographic identifications, the defendant bears the burden of showing that the array was impermissibly suggestive. If the defendant meets that burden, the burden shifts to the prosecution to show that, despite the improper suggestiveness, the identification was reliable under the totality of the circumstances. People v. Borghesi, 66 P.3d 93 (Colo.2003); Bernal v. People, supra.

If the trial court determines that the array was not impermissibly suggestive, the identification is admissible without further inquiry. People v. Martinez, 32 P.3d 520 (Colo.App.2001).

Relevant factors in determining whether a pretrial photographic array is impermissibly suggestive include the size of the array, the details of the photographs, and the manner of presentation of the array. Bernal v. People, supra.

An array of six photographs that depicts individuals matched by race, approximate age, facial hair, and a number of other characteristics, and which does not include a photograph unique in some manner directly related to an important identification factor, generally comports with due process. In contrast, an array that includes photographs so limited that the defendant is the only one to match the witness's description of the perpetrator is impermissibly suggestive. People v. Owens, 97 P.3d 227 (Colo.App.2004). Nevertheless, the police do not have to provide an array containing only exact replicas of the defendant's picture. Bernal v. People, supra.

Here, of the six men shown, five appear to be of the same race, all appear to be of the same approximate age, three have facial hair (including defendant), and five share many facial characteristics. There are no substantial differences in the shade and tone of defendant's photograph. Although defendant argues the array gives the impression that he is taller than the other individuals, two other photographs portray individuals in a similar alignment.

For these reasons, we agree with the trial court that the array was not impermissibly suggestive so as to give rise to a substantial likelihood of misidentification.

Regarding the presentation of the array, we reject defendant's assertion that it was impermissibly suggestive because the victim, her husband, and her mother knew that the police had arrested a suspect. The trial court found, with record support, that the detective present at the photo array did not tell the victim, her husband, or her mother that police had arrested a suspect. And the advisement form for the photo lineup told the victim that she should not assume that the guilty person had been caught and that she did not need to identify anyone.

Consequently, because neither the array nor the manner in which it was presented was impermissibly suggestive, we need not determine whether the prosecution proved that, despite any improper suggestiveness, the identification was reliable under the totality of the circumstances. See People v. Martinez, supra.

II.

Defendant next contends the trial court erred in excluding expert testimony. Specifically, defendant asserts that the trial court violated his due process rights by excluding his expert's proffered testimony on the reliability of the victim's identification of him and that of a gun. We are not persuaded.

Trial courts possess broad discretion to allow or prohibit testimony by expert witnesses in criminal cases. People v. Williams, 790 P.2d 796 (Colo.1990). A trial court's decision to admit or reject expert testimony will not be overturned absent an abuse of discretion. People v. Fasy, 829 P.2d 1314 (Colo.1992).

To establish an abuse of discretion, it must appear that the court's choice of a particular course of action was manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1993).

Expert testimony is admissible if the scientific principles underlying the testimony are reasonably reliable, the expert is qualified to opine on such matters, and the expert testimony is useful to the jury. A trial court should also apply its discretionary authority under CRE 403 to ensure that the probative value of the evidence is not sub-stantially outweighed by the danger of unfair prejudice. People v. Shreck, 22 P.3d 68 (Colo.2001).

A.

The trial court allowed the expert to testify concerning the effect of stress, weapon focus, and time estimation on a witness's identification. It excluded the proposed testimony as to one study the expert had conducted that involved showing the lineup in this case to forty-two students in a class she was teaching. The court found that the particular study lacked reliability.

Our review of the record reveals adequate support for the court's ruling. Defendant presented no evidence that the expert had conducted the study in conformance with any standard or procedure that would ensure it was reliable. Further, there was no evidence that the participants were a representative sampling of individuals such that the study would yield a reliable statistical analysis.

B.

Before trial, the police showed the victim a single gun, which the victim identified as the weapon used in the incident. We agree with the trial court that the jury could infer and weigh the suggestiveness of the identification procedure without the expert's opinion. Because the opinion would not have been helpful, the court acted within its discretion in excluding it. See People v. Masters, 33 P.3d 1191 (Colo.App.2001),

aff'd,

58 P.3d 979 (Colo.2002).

III.

Defendant contends the trial court erred in admitting evidence of the victim's out-of-court identification of the gun. We are not persuaded.

Trial courts have considerable discretion in deciding questions concerning the admissibility of evidence, its relevancy, its probative value, and any prejudicial effect. Therefore, absent an abuse of discretion, a trial court's evidentiary rulings will not be disturbed. People v. Ibarra, supra.

An item of relevant real evidence is admissible if it is connected with the perpetrator of a crime, the victim, or the crime. People v. Penno, 188 Colo. 307, 534 P.2d 795 (1975). When a witness observes and subsequently describes such an item of real evidence, testimony as to its description and out-of-court identification may be admitted. See People v. Coston, 40 Colo.App. 205, 576 P.2d 182 (1977),

aff'd,

633 P.2d 470 (Colo.1981).

Contrary to defendant's contention, the identification of an inanimate object such as a gun is not as crucial an element of the proof as is a direct identification of a defendant as the person who committed a crime. Hence, the same constitutionally prescribed procedures used for identifying suspects do not apply to procedures used in identifying inanimate objects. See Commonwealth v. Spann, 383 Mass. 142, 418 N.E.2d 328 (1981)

.

It follows, then, that any inadequacy in the procedures followed and the failure to use other procedures reasonably available are arguments that can be presented to the jury. See Commonwealth v. Spann, supra.

Here, the victim identified the gun in an out-of-court procedure, but at trial, she could only say that the...

To continue reading

Request your trial
55 cases
  • People v. Mountjoy
    • United States
    • Court of Appeals of Colorado
    • June 2, 2016
    ...in imposing consecutive sentences, as the record shows each conviction was supported by distinct evidence. See, e.g. , People v. Hogan , 114 P.3d 42, 58 (Colo. App. 2004) (Trial court did not abuse its discretion in imposing consecutive sentences when convictions require "proof of different......
  • State v. Artis
    • United States
    • Appellate Court of Connecticut
    • July 10, 2012
    ......Otero routinely photographed people at nightclubs for a radio station website, and that night he took a photograph of Miano and Anna ...Marquez, supra, 291 Conn. at 137, 967 A.2d 56, quoting, with approval, People v. Hogan", 114 P.3d 42, 49 (Colo.App.2004), cert. denied, 2005 Colo. LEXIS 597 (Colo. June 27, 2005).    \xC2"......
  • State v. Marquez
    • United States
    • Supreme Court of Connecticut
    • April 14, 2009
    ......7 While several other people visited the apartment intermittently throughout the night, only these four men were present just ...See, e.g., People v. . 291 Conn. 137 . Hogan, 114 P.3d 42, 49 (Colo. App.2005) ("The ultimate question as to the constitutionality of pretrial ......
  • State v. Stephenson
    • United States
    • Supreme Court of Tennessee
    • January 4, 2006
    ...elements of the offense of capital murder for purposes of the statutory elements test under Blockburger. See also People v. Hogan, 114 P.3d 42, 57-58 (Colo. Ct.App.2004) (non-capital case adopting a similar interpretation of Ring and Sattazahn in response to a double jeopardy The Blockburge......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT