People v. Jones

• Decision Date: 23 August 1976
• Docket Number: 26479,Nos. 26411,s. 26411
• Citation: 553 P.2d 770,191 Colo. 385
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Herbert Lee JONES, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 770

553 P.2d 770

191 Colo. 385

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Herbert Lee JONES, Defendant-Appellant.

Nos. 26411, 26479.

Supreme Court of Colorado, En Banc.

Aug. 23, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

The appellant, Herbert Jones, was convicted in a jury trial of aggravated robbery and conspiracy. He raises three issues in this appeal. We affirm the convictions.

On August 23, 1973, at approximately 12:30 p.m., a Denver Texaco station was robbed by two men, one of whom displayed what appeared to be a gun. About one week later, two of the station employees were shown a photograph lineup and identified the appellant as one of the robbers. The station manager, also present at the time of the robbery, was unable to make an identification from the photograph lineup. The day after the photograph identification, a police lineup was held, at which the same two station employees identified the appellant. The station manager did not attend the police lineup.

Prior to trial, the appellant filed a motion to suppress both the out-of-court identifications and any in-court identifications to be made by the witnesses. The motion to suppress was denied. At trial all three witnesses identified the appellant.

At the close of the evidence, the trial court instructed the jury, in a portion of Instruction Number 18, that the following 'special rule' was applicable:

'Possession of any article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon, or any verbal or other representation by the defendant that he is then and there so armed, may be considered by the jury as evidence that the defendant was so armed.'

The instruction was derived from 1971 Perm.Supp., C.R.S.1963, 40--4--302(2) ¹ which reads exactly as the instruction except that the statute provides that such possession 'is prima facie evidence . . . that he was so armed.'

I.

The appellant contends that the quoted portion of Instruction Number 18 was improperly given, since it assumed controverted facts and shifted the burden of proof to the defendant. Further, the appellant argues that C.R.S.1963, 40--4--302(2) is unconstitutional, since it contains a presumption which shifts the burden of proof to the defendant.

Without deciding whether the instruction does indeed assume certain facts, we note that the issue of whether the robber made a representation that he possessed a deadly weapon was not controverted at trial. There was no dispute that a robbery occurred or that one robber displayed what appeared to be a gun. An instruction which assumes uncontroverted facts is not grounds for reversal. King v. People, 67 Colo. 510, 186 P. 521 (1920); Komrs v. People, 31 Colo. 212, 73 P. 25 (1903). Further, the instruction does not shift the burden of proof; rather, the instruction, and statute, merely shift 'the burden of going forward with respect to certain evidence.' People v. Lorio, Colo., 546 P.2d 1254 (1976).

Finally, we dealt with the same constitutional issue raised here in People v. Lorio, supra, and held the statute constitutional. We adhere to the Lorio decision.

II.

Next, the appellant asserts that the trial court incorrectly denied the motion to suppress the out-of-court and in-court identifications. The appellant argues that because his was the only picture of a man with a scar shown in the photograph lineup the lineup was impermissibly suggestive and tainted any later identifications.

The witnesses were originally shown a photograph lineup that did not include a picture of the appellant. None of the witnesses made a positive identification. In the second photo lineup, all of the photographs were of young, black males, with hair style similar to the appellant's. Testimony at trial indicated that the police made no suggestive comments when the photographs were shown to the witnesses, and the two witnesses made their identifications out of the presence of each other. Further, at the police lineup all persons in the lineup wore tape on the left cheek area where the appellant's scar appears. This procedure was adopted at the suggestion of appellant's counsel who was present at the lineup.

We begin by noting that the claim that identification procedures were impermissibly suggestive must be evaluated in light of the totality of the surrounding circumstances. 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).

Further, the United States Supreme Court stated in Simmons v. United States, supra, that convictions based on an eyewitness identification at trial following a pretrial photo identification will be set aside

'only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

We have examined the photographs shown to the witnesses. The scar in question is barely visible in the photograph used in the photographic identification procedure. In our view, there is no compelling evidence to indicate that the appellant's picture so stood out in the photograph lineup that we should reverse the trial court's finding that the procedures used were not suggestive. Indeed, the pictures are of such poor quality it is difficult to determine who in the lineup does and does...