People v. Martinez

• Decision Date: 04 September 1986
• Docket Number: No. 84CA0774,84CA0774
• Citation: 734 P.2d 126
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlton R. MARTINEZ, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 126

734 P.2d 126

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlton R. MARTINEZ, Defendant-Appellant.

No. 84CA0774.

Colorado Court of Appeals Div. I.

Sept. 4, 1986.

Rehearing Denied Oct. 9, 1986.

Certiorari Denied (Martinez) March 23, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Peggy O'Leary, Deputy State Public Defender, Denver, for defendant-appellant.

ENOCH, Chief Judge.

Defendant, Carlton R. Martinez, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree sexual assault, second degree kidnapping, and of commission of a violent crime. We affirm.

Defendant's contention on appeal is that he was misidentified by the victim. The following facts as testified to by the victim are not at issue. In June of 1982, while she was maneuvering her car out of a parking space after visiting some friends, a man opened the driver's side of the car, put a knife to her throat, grabbed her hair, and ordered her to back into the parking space again. He demanded her money, which she gave him. Still holding the knife to her throat, he ordered her to come with him and took her to a niche in an alley between a garage and a fence, where he sexually assaulted her.

The sexual assault lasted approximately 20 to 30 minutes. Then the man ordered the victim to dress and walked her back out of the alley and toward where her car was parked. He asked her if she had any more money, and she gave him some change from her purse. He told her he needed a color television and when she said she did not have one, he pushed the knife into her back until she bled. He walked her around the area, then told her to turn around and keep walking, which she did, eventually running back to her friends' house. She told her friends what had happened, they called the police, and she was interviewed and taken to Denver General Hospital for an examination. She was with her assailant for approximately one to one and one-half hours.

She gave the police investigator a description of her assailant: Black male, age 25, five-foot ten inches, 135 pounds, very thin build, brushed-down pants, very short hair. A few days later, she met with a police artist who made a composite drawing based on her more detailed description of the assailant's facial characteristics.

Throughout the summer and fall of 1982, she attempted to identify her attacker from hundreds of photographs shown to her by police investigators. She pointed out some photographs of men who had certain facial features which looked "similar" to those of her assailant, but she did not identify anyone as her assailant. She viewed a live lineup in September, but did not identify anyone in the lineup as her assailant. Neither the photographs nor the lineup contained defendant.

In January of 1983, a friend of the victim who had seen the composite drawing told her that in the Rocky Mountain News there was a photograph of a man who looked like the man in the drawing. The friend told her that the man's name was Philip Cooper and that his photograph appeared in the newspaper, along with two other photographs. The news story was about the three men, who "had been arrested for allegedly being involved in a shooting."

The victim obtained a copy of the newspaper and looked at Cooper's photograph, but determined that he was not the person who had assaulted her. In one of the other photographs, however, she recognized her assailant, whose name was listed below his photograph as Carlton Martinez. She then read the article and learned that Martinez and the third man, Robert Stinnett, were suspected of "the most brutal rape" the officers assigned to the case had ever investigated.

The next day, the victim was called in to the police station to view a photographic lineup. Before the viewing, she read admonitions on the back of the lineup photograph which stated, in part:

"THIS GROUP OF INDIVIDUALS MAY OR MAY NOT CONTAIN THE PERSON THAT COMMITTED THE [sexual assault]. THE FACT THAT YOU HAVE BEEN ASKED TO VIEW THIS LINEUP SHALL NOT CAUSE YOU TO BELIEVE THAT THE GUILTY PERSON HAS BEEN APPREHENDED. YOU DO NOT HAVE TO IDENTIFY ANYONE. IT IS JUST AS IMPORTANT TO FREE INNOCENT PERSONS FROM SUSPICION AS IT IS TO IDENTIFY THOSE THAT ARE GUILTY."

The victim positively identified defendant as her assailant. Subsequently, she viewed a live lineup and again identified defendant as her assailant.

Before trial, defendant filed motions in limine to suppress the victim's pre-trial identifications. He also filed a motion to dismiss or, in the alternative, suppress identification evidence, based on the prosecution's failure to preserve photographs from several lineups viewed by the victim. All motions were denied.

I.

Defendant first argues that the trial court erred in denying his motion in limine to suppress the three pre-trial identifications by the victim because the pre-trial identification procedures employed by the police were unduly suggestive. We disagree.

In Alvarez v. People, 653 P.2d 1127 (Colo.1982), the supreme court summarized the test for admissibility applicable where identification procedures are found to be unduly suggestive:

"[A] defendant's right to due process of law is violated by admitting into evidence the results of an unnecessarily suggestive identification procedure unless the totality of the circumstances establishes that the procedures do not result in a substantial likelihood of an irreparable misidentification despite its suggestiveness. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.2d.2d 140 (1977)."

The following factors are to be considered in evaluating the reliability of the identification, and must be weighed together against the corrupting effect of the suggestive identification itself:

"[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation."

People v. Alvarez, supra, quoting Manson v. Brathwaite, supra.

The threshold question in the above test is whether the identification procedures were unnecessarily suggestive. If the court determines that the procedures were not unnecessarily suggestive, then the identification is admissible without further inquiry. If, however, the court determines that the procedures were unnecessarily suggestive, then it must reach the next level of inquiry: whether, after weighing the above factors, the identification was reliable despite its suggestiveness.

First, we agree with the trial court's conclusion that the the identification procedures were not unnecessarily suggestive. The victim's first identification of defendant in the Rocky Mountain News was fortuitous, and there was no police involvement leading to the identification. In fact, the victim testified that, before she looked at the photographs in the newspaper, she contacted the police department and an investigator told her not to look at the newspaper photographs. Thus, there were no police procedures employed at all.

Nor were the victim's second and third identifications, the photographic array and the live lineup, suggestive in any way. In both, the police procedures employed in presenting the lineups were free from...