People v. Kemp, 93CA0430

• Decision Date: 07 April 1994
• Docket Number: No. 93CA0430,93CA0430
• Citation: 885 P.2d 260
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher S. KEMP, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 260

885 P.2d 260

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher S. KEMP, Defendant-Appellant.

No. 93CA0430.

Colorado Court of Appeals Div. III.

April 7, 1994.

Rehearing Denied May 5, 1994.

Certiorari Denied Dec. 19, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy J. Ritz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Law Firm of William Muhr & Associates, Edward L. Arcuri, III, Colorado Springs, for defendant-appellant.

Opinion by Judge TAUBMAN.

Defendant, Christopher S. Kemp, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of aggravated robbery, one count of conspiracy to commit aggravated robbery, and three habitual criminal counts. Defendant also appeals the life sentence imposed under the habitual criminal statute. We affirm.

The testimony at trial revealed the following. On May 13, 1990, a World Savings Bank branch in Colorado Springs was robbed and $580 was taken. The robber approached a teller window and ordered the teller to give him all of her twenties, fifties, and hundreds. The robber warned the teller not to activate the alarm and that he was armed. The robber took the money and left.

The branch manager observed the conversation between the robber and the teller. She felt that something was wrong. As the robber started to leave, the manager attempted to interrupt to see if she could be of any assistance. The teller told the manager to leave the robber alone because he said he was armed. As the robber left, the teller hit the activator button for the security camera. Pictures were taken, but destroyed before the trial.

The teller and the manager described the robber as a tall, thin, dark-complected man with a blue bandana around his head, a blue windbreaker, jeans, and tennis shoes. Both witnesses identified Kemp as the robber in a photographic line-up shown to them six months after the robbery. At trial, the witnesses also identified Kemp as the robber.

Another witness, who loaned his Ford Bronco to his son for the day, told the police that he saw his car in the parking lot when he was leaving a local cafeteria. He noticed that there were three men in his car, none of whom was his son. The witness reported the car stolen and described the driver as a thin man with long dark hair, mustache, and sunglasses. The car was later found in good condition.

The police investigation revealed that this Bronco had been used by the robber to flee the scene. The witness' son later told the Colorado Springs Police that he had loaned the Bronco to Kemp on May 13, 1990, the date of the robbery. The witness' son identified Kemp as the robber, based on statements made by Kemp to him.

Another witness acknowledged that, on the day of the robbery, Kemp had signed out of the community corrections facility in which he was incarcerated to look for a job. Kemp returned to the community corrections facility later that day and turned in the first page of his job hunting form. He never turned in the second page of the form, on which he was supposed to list the contacts he had made that day.

Defendant was convicted at trial and was sentenced to life imprisonment.

I. Court Appointment of Identification Expert Witness

Defendant first contends that the trial court erred when it denied his request for an appointed expert who would testify regarding the fallibility of eyewitness identifications. We disagree.

Expert testimony on the reliability of eyewitness identification is admissible in some cases based on an analysis of the proposed testimony under CRE 702 and 403. The trial court has broad discretion to evaluate on a case-by-case basis whether expert testimony on this issue would assist the trier of fact to understand evidence or to determine facts in issue. We will not reverse the trial court's ruling to admit or exclude such expert testimony unless the ruling is manifestly erroneous. Campbell v. People, 814 P.2d 1 (Colo.1991).

Here, the trial court correctly analyzed defendant's offer of proof regarding expert testimony under the standards set forth in Campbell v. People, supra. It specifically found that the expert testimony regarding impairment of memory under stressful conditions was:

less probative considering the fact that there [were] two independent bank teller identifications ..., along with one to two co-defendant identifications and additional corroborating evidence ... In view of all the circumstances in this case, the court doubts the admissibility of the ... expert testimony even though there would be some small helpfulness to the jury.... That helpfulness is clearly outweighed by confusion of the issues, the possibility of misleading the jury, considerations of undue delay and waste of time and resources.

The trial court properly analyzed defendant's request for an expert on the reliability of eyewitness identification under CRE 702 (assistance to the trier of fact) and CRE 403 (probative value outweighed by unfair prejudice, confusion of the issues, etc.). Thus, we conclude that the denial of defendant's request for a court-appointed expert on the reliability of eyewitness identification was proper under Campbell v. People, supra, and was not manifestly erroneous.

II. Improper Identifications of Defendant

Defendant next argues that the pretrial identifications should have been suppressed because they were the product of unduly suggestive line-ups. We disagree.

An out-of-court identification procedure is impermissibly suggestive when there is a substantial likelihood of an irreparable misidentification based on the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1976); People v. Borrego, 668 P.2d 21 (Colo.App.1983).

The threshold question in the above test is whether the identification procedures were unnecessarily suggestive. A line-up is proper if the photos are matched by race, approximate age, hair type, and a number of other characteristics. People v. Borrego, supra. If the court determines that the procedures were not unnecessarily suggestive, the identification is admissible without further inquiry. People v. Martinez, 734 P.2d 126 (Colo.App.1986).

After hearing extensive testimony from defendant and the detective who prepared the line-up, the trial court concluded that there was nothing improper about the photographic line-up. Because we agree with the trial court's determination that the procedures were proper and its conclusion is supported by the record, the out-of-court, line-up identifications were admissible and the trial court was not required to examine the other factors suggested by defendant.

III. Testimony of Prior Incidents

Defendant further argues that the trial court improperly permitted identification testimony from witnesses involved in other, similar bank robberies. Again, we disagree.

A trial court may admit other crime evidence if it finds, based on review of all of the evidence before it and by a preponderance of that evidence, that the other crime occurred and that defendant committed the other crime; that the other crime evidence is being offered for a proper purpose and is logically relevant to a material issue in the case, independent of inferring the defendant's bad character; that its probative value outweighs any unfair prejudice; and that distinct similar features between the crimes exist. See People v. Garner, 806 P.2d 366 (Colo.1991); People v. Spoto, 795 P.2d 1314 (Colo.1990).

Here, defendant confessed and pled guilty to the three prior bank robberies committed in a manner similar to the robbery here about which the People proposed to offer witnesses. The trial court then weighed the other factors, including the similarities between the crimes, and admitted the similar crime testimony for the limited purpose of identity. The trial court also instructed the jury before and after the testimony of each witness and in the general charge to the jury that the testimony was to be considered only for the purpose of identity. See People v. Garner, supra.

The trial court properly applied the factors set forth in People v. Garner, supra, and People v. Spoto, supra, and its findings are supported by the record. Thus, we conclude that the trial court did not abuse its discretion when it admitted the similar crime evidence.

IV. Admissibility of Hearsay Statements of Co-Defendant

Defendant further contends that the trial court improperly admitted hearsay testimony of a co-defendant implicating defendant in the World...