People v. Lawson

• Decision Date: 25 March 1976
• Docket Number: No. 75--067,75--067
• Citation: 551 P.2d 206,37 Colo.App. 442
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hayward Curtis LAWSON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 206

551 P.2d 206

37 Colo.App. 442

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hayward Curtis LAWSON, Defendant-Appellant.

No. 75--067.

Colorado Court of Appeals, Div. II.

March 25, 1976.

Rehearing Denied April 15, 1976.

Certiorari Denied June 21, 1976.

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

Rollie R. Rogers, Colorado State Public Defender, Norman R. Mueller, Deputy State Public Defender, Denver, for defendant-appellant.

STERNBERG, Judge.

This is an appeal of a first degree murder conviction in which the principal issue is the propriety of the trial court's refusal to permit expert testimony offered to delineate in general the various factors that might affect the reliability of eyewitness identifications. Other issues raised are the suggestiveness of a lineup and failure to grant motions for mistrial based on alleged irregularities at the trial. We affirm the judgment of conviction.

At about 10 P.M. on the evening of January 14, 1973, Larry McVay and his cousin, Jeffrey Van Cura, returned to the McVay home after having attended a basketball game. McVay's wife was in her bedroom. McVay went to that room, removed his shirt, emptied his pockets, and then went to the kitchen to prepare a snack. He returned to the livingroom and as he and Van Cura were watching television, they heard a knock at the front door of the home. McVay answered and two men attempted to force their way into the house, stating that, 'This is a stick up.' As McVay tried to close the door, one of the intruders shot him, inflicting wounds that caused his death shortly thereafter.

Mrs. McVay heard the shot and entered the livingroom, but was forced to return to her bedroom accompanied by one of the intruders. That man searched a dresser and closet, seeking cash receipts of a business, which money he understood would be on the premises. However, he found only McVay's wallet from which he took $10. The second intruder remained in the livingroom with Van Cura. About 15 minutes later, their search for money from the business having proved fruitless, the intruders left their surviving victims in a bedroom, cut a telephone cord, and fled.

Some 14 months later, police officers who had been investigating the murder, contacted Mrs. McVay at her new home in Nebraska. They requested her to return to Colorado to view a lineup. Defendant was one of the six men in that lineup. A public defender was present representing defendant. Mrs. McVay identified the defendant as the man who had held her captive, basing this conclusion on his physical appearance and the sound of his voice. She was not able to identify the second intruder. Later that day, Mrs. McVay was shown a videotape of the lineup and she confirmed her identification of the defendant. Mr. Van Cura was unable to identify the defendant, but in another lineup did identify the second intruder.

Defendant's conviction at the trial was based upon Mrs. McVay's in-court identification as well as less direct evidence of defendant's involvement. One Rutherford testified that while in his presence, defendant was told that the manager of a certain business took money receipts home at night, and that defendant consulted a city directory and learned that Mr. McVay was the manager of that company. Rutherford also testified that defendant obtained McVay's home address by reference to a telephone directory and finally that the defendant had made reference to Rutherford concerning fur hats of the type that had been worn by the intruders and were later discarded by them.

I.

The defense tendered as an expert witness a professor of psychology who specialized in the field of perception and memory. His testimony would have reviewed the various factors that might affect the reliability of eyewitness identifications. At the outset, we observe that this testimony was not being offered to attack directly Mrs. McVay's eyewitness testimony. The expert had no familiarity with Mrs. McVay. Thus, defendant's reliance on United States v. Hiss, 88 F.Supp. 559 (S.DN.Y.1950), is misplaced. There a specific, direct attack was being made on the mental capacity of Whittaker Chambers, a witness.

Here, the purpose of the expert testimony was to inform the jury that a witness' ability to identify a suspect would be impaired by the passage of time and that a woman who is nearly an eyewitness to her husband's shooting, who sees him in a mortally wounded state, and who is held at gunpoint by his assailant, would likely be in such emotional turmoil that her identification of the assailant might be questionable.

The basic purpose for allowing expert testimony is to assist the jury by providing the expert's opinion on matters of which the average juror has little knowledge or experience. As discussed in McCormick on Evidence § 13 (E. Cleary 2d ed.):

'The expert has something different to contribute (than does the witness who testifies on firsthand knowledge or observation). This is a power to drawn inferences from the facts which a jury would not be competent to draw. . . . (T)he subject of the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman. . . .'

The expert testimony offered here falls short of these requirements. We do not reach the question of whether the field of the social sciences in which this testimony falls has attained that degree of certainty which renders it a proper subject for expert testimony. Cf. People v. Alvarez, Colo. 530 P.2d 506, and 2 S. Gard, Jones on Evidence § 14.9 (6th ed.). Rather, we hold that the tendered evidence, relating to factors that might have made Mrs. McVay's eyewitness identification questionable, is within the realm of the experience and common kmowledge of a juror. Therefore, while such matters might well have constituted fertile areas of inquiry on cross-examination, and in particular for exposition during closing argument, it was not an abuse of discretion for the trial court to conclude that the opinion would not aid the jury in resolving an issue and to exclude the expert testimony on the subject. See National Fuel Co. v. McNulty, 65 Colo. 176, 177 P. 979, and 2 S. Gard, Jones on Evidence § 14.9 (6th ed.).

II.

Defendant also contends that the lineup procedure leading to his identification by Mrs. McVay was so unduly suggestive as to violate his right to due process. He would therefore have us apply the Per se exclusionary rule of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and hold that Mrs. McVay's in-court identification should not have been permitted. This we decline to do.

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