People v. Horne

• Citation: 619 P.2d 53
• Decision Date: 03 November 1980
• Docket Number: No. 79SA298,79SA298
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas B. HORNE, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 53

619 P.2d 53

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas B. HORNE, Defendant-Appellant.

No. 79SA298.

Supreme Court of Colorado, En Banc.

Nov. 3, 1980.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Donald Eberly, Deputy Dist. Atty., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, James E. Hautzinger, Sp. Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

The defendant, Thomas B. Horne, was convicted of aggravated robbery, section 18-4-302, C.R.S.1973 (1978 Repl. Vol. 8), and first-degree criminal trespass (section 18-4-502, C.R.S.1973 (1978 Repl. Vol. 8), after a jury trial in district court. He was sentenced to imprisonment for a term of fourteen to eighteen years for the aggravated robbery and a consecutive indeterminate term not to exceed five years for the criminal trespass. Horne appealed, asserting error in certain of the trial court's rulings and challenging the sentences as illegal and excessive. The case was transferred from the court of appeals to this court pursuant to section 13-4-110(1)(a), C.R.S.1973. We affirm the convictions, but reverse the judgment and remand the matter for correction of deficiencies in the sentencing proceedings.

On the evening of February 10, 1978, two men entered the lobby of the Radisson Hotel in Denver, threatened two hotel employees with a sawed-off shotgun, and escaped with $92. In the early morning of February 11, 1978, the police were called by a tenant of an apartment near the Radisson. The tenant, Anna Noel, was locked out of her apartment and suspected that there were intruders inside. The police broke the door and found the defendant and a companion, James Washington, asleep on a bed. A loaded sawed-off shotgun was found near the bed. Both men were arrested and charged with the aggravated robbery at the Radisson, as well as criminal trespass based upon the entry into Noel's apartment. They were tried jointly. Both were convicted of criminal trespass, but only Horne was convicted of aggravated robbery, the jury failing to arrive at a verdict on that charge against Washington.

On appeal, Horne challenges the denial of his motion to suppress an in-court identification of him by one of the hotel employees, the denial of his motion for a separate trial, and the denial of his motion for judgment of acquittal for criminal trespass. He also contends that the sentences are illegal and excessive. We conclude that the incomplete record before us does not support the severity of the sentences imposed but that the defendant's other arguments lack merit.

I.

First, we shall consider the propriety of the denial of Horne's motion to suppress his in-court identification by witness John Nichols. For the purpose of this identification discussion, it is helpful to know that Horne is white and Washington is black.

Nichols, night auditor at the Radisson on the evening of the robbery, testified that defendant Horne was the robber with the shotgun. Nichols had been unable to identify Horne in a six-person photographic lineup four days after the robbery. Thereafter, Nichols identified Horne at the preliminary hearing on March 9, 1978, at which Horne and Washington appeared and were identified as the defendants. Those were Nichols' only opportunities for identification of Horne prior to the trial. Nichols could not identify Washington in a photographic lineup, at the preliminary hearing, or at trial.

The trial court ruled that William Fuqua, night clerk at the hotel on the evening of the robbery, would not be permitted to testify that defendant Washington was the unarmed robber. Fuqua had identified Washington in a physical lineup on February 14, 1978, and again at the preliminary hearing. The court's ruling was based upon its conclusion that the identification by Fuqua at the physical lineup violated Washington's constitutional right to counsel. Fuqua could not identify Horne at the February 14 physical lineup, at the preliminary hearing, or at trial.

Horne contends that his identification by Nichols at the preliminary hearing took place under impermissibly suggestive conditions, and as a result Nichols should not have been permitted to identify him at the trial.

An identification used as proof to link a defendant to a crime denies that defendant due process of law if the identification procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); People v. Williams, 183 Colo. 241, 516 P.2d 114 (1973). A claim that identification procedures were impermissibly suggestive must be evaluated in light of the totality of the surrounding circumstances. Manson v. Brathwaite, supra; Neil v. Biggers, supra; Stovall v. Denno, supra; People v. Jones, 191 Colo. 385, 553 P.2d 770 (1976); People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

If a witness has identified a defendant in an unconstitutionally suggestive procedure prior to trial, an identification by that witness at trial is permissible only if there is an independent source for that identification. Hughley v. People, 195 Colo. 259, 577 P.2d 746 (1978); People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977); Glass v. People, 177 Colo. 267, 493 P.2d 1347 (1972); see Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1966). The People have the burden to show by clear and convincing evidence that the in-court identification is not the product of the previous unduly suggestive procedure, but is based upon the witness' independent observations of the defendant during the crime. Huguley v. People, supra; People v. Renfrow, supra. An in camera hearing is the appropriate procedure to determine whether a witness has such an independent recollection. Huguley v. People, supra. Relevant factors in making this determination 'include the witness's 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 the 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).' Huguley v. People, supra, 195 Colo. at 262, 577 P.2d at 747.

Here, an in camera hearing was conducted at a recess during jury selection. Evidence was presented reflecting that Nichols was in the presence of the robber with the shotgun for ten to fifteen minutes during the crime and observed him closely for seven to eight minutes at that time; that Nichols' description of the robber given to the police shortly after the crime was essentially consistent with the appearance of the defendant and, except for footwear, with the clothing he was wearing on the evening of the arrest; that twenty-seven days had passed between the day of the crime and the preliminary hearing; and that Nichols recognized the defendant immediately when he saw him at the preliminary hearing. There was no evidence that anyone overtly suggested the identification to him.

While Nichols' inability to identify the defendant at the photographic lineup shortly after the crime is relevant, see United States v. Wade, supra, it does not preclude him from making an identification upon seeing the defendant in court. Instead, it goes to the weight of his identification testimony. See United States v. Toney, 440 F.2d 590 (6th Cir. 1971); Jones v. Director, Patuxent Institution, 351 F.Supp. 913 (D.Md.1972); State v. Myers, 117 Ariz. 79, 570 P.2d 1252 (1977); State v. McKinney, 498 S.W.2d 768 (Mo.1973), cert. denied, 415 U.S. 926, 94 S.Ct. 1433, 39 L.Ed.2d 483 (1974); see also People v. Jones, supra (identification at trial permitted but issue of failure to identify in photographic lineup earlier not discussed).

The trial court found that Nichols had an independent recollection of the defendant in this case based upon his observation of the robbery on February 10, 1978. The trial court did not rule whether the preliminary hearing identification procedure was unnecessarily suggestive, but the ruling is clear that the source of Nichols' ability to identify Horne was his recollection of the events of February 10. This determination is fully supported by the evidence. The motion to suppress the in-court identification was properly denied.

The defendant also contends that it was reversible error to permit Nichols to testify at trial to his identification of Horne at the preliminary hearing. See Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Gilbert v. California, supra. As noted, the trial court did not specifically find the preliminary hearing identification procedure to have been unnecessarily suggestive. Whether a one-on-one identification procedure violates due process of law depends on the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1976); Neil v. Biggers, supra; Simmons v. United States, supra; Stovall v. Denno, supra. Other courts have upheld similar pretrial hearing procedures in the face of such challenges. United States v. Cole, 449 F.2d 194 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 991, 30 L.Ed.2d 806 (1972); Laury v. State, 260 A.2d 907 (Del.1969); People v. Finch, 47 Ill.2d 425, 266 N.Ed.2d 97 (1970); Commonwealth v. Wheeler, 3 Mass.App. 387, 331 N.E.2d 815 (1975). As the court said in Laury v. State, supra at 909:

'Generally...