People v. McCants

• Decision Date: 18 November 2021
• Docket Number: Court of Appeals No. 18CA0435
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Antoine Perria MCCANTS, Defendant-Appellant.
• Court: Colorado Court of Appeals

504 P.3d 1002

2021 COA 138

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Antoine Perria MCCANTS, Defendant-Appellant.

Court of Appeals No. 18CA0435

Colorado Court of Appeals, Division VI.

Announced November 18, 2021

Philip J. Weiser, Attorney General, Shelby A. Krantz, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE WELLING

¶ 1 Defendant, Antoine Perria McCants, appeals his convictions of vehicular eluding and reckless driving.

¶ 2 At trial, McCants challenged the reliability of a police officer's out-of-court identification of him based on what he contends was an impermissibly suggestive photo array. Relying on People v. Howard , 215 P.3d 1134 (Colo. App. 2008), the trial court concluded that a police officer's identification is per se reliable and, therefore, exempt from a reliability analysis as otherwise required by Neil v. Biggers , 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Bernal v. People , 44 P.3d 184, 191 (Colo. 2002).

¶ 3 We reject the proposition that a different analytical framework applies when the reliability of a police officer's identification of a suspect from an allegedly suggestive photo array is challenged, and, to the extent this conclusion conflicts with Howard , we decline to follow it. Instead, we conclude that the trial court erred by failing to engage in the analysis and make the findings required by Biggers , Bernal , and their progeny. Because we aren't in a position to make the requisite findings in the first instance on appeal, we reverse and remand the case to the trial court for findings related to the suggestiveness and reliability of the officer's out-of-court identification of McCants.

¶ 4 We reject McCants’ remaining contentions of trial error and agree with him that his conviction for reckless driving should have been merged into his conviction for vehicular eluding. Therefore, in the event that the trial court concludes, after making the requisite findings, that the challenged identification by the officer was admissible, then the court shall reinstate the conviction for vehicular eluding (subject to McCants’ right to appeal any findings and orders entered on remand) and the conviction for reckless driving shall merge into the vehicular eluding conviction. (The mittimus must be amended accordingly.)

¶ 5 If on remand, however, the trial court concludes that the challenged identification shouldn't have been admitted at trial, then McCants shall be granted a new trial.

I. Factual Background

¶ 6 The testimony elicited at trial supports the following facts. On March 8, 2016, two police officers were on patrol and saw a man leave a liquor store and get into a silver Chevrolet Tahoe with expired tags. The officers attempted to pull the vehicle over as it left the parking lot, but the driver accelerated away from the patrol car and ran a stop sign. The officers radioed to other officers in the area that the vehicle was eluding and gave its license plate number and a description of the driver.

¶ 7 Officer Jonathan McCants¹ (Officer M.) and his partner were patrolling in an unmarked car when they heard the dispatch and drove in the direction of the vehicle's last reported location. Officer M. observed the vehicle driving nearby and watched as the driver failed to stop at a stop sign, causing traffic in both directions to stop abruptly. The driver then made a left turn and started driving toward Officer M. The driver turned around to look behind him, with his window all the way down, and, as the vehicle passed Officer M., Officer M. was able to see the driver's face and his clothing. Officer M. turned his car around to follow the eluding vehicle, eventually losing sight of it after the driver cut off other vehicles in traffic.

¶ 8 Other officers eventually found the vehicle in the parking lot of an apartment complex, but there was no one in the vehicle. The officers observed that the vehicle's engine hood was hot, indicating that it had recently been driven. They also saw mail addressed to "Antoine McCants" in plain view inside the vehicle and observed an unopened beer bottle on the floor of the vehicle.

¶ 9 Officer M.’s partner looked through the police database and located a photograph of McCants. When his partner showed him the photograph, Officer M. identified McCants as the driver of the vehicle he had witnessed between fifteen and twenty minutes earlier. The vehicle, however, was registered to E.M. When contacted, E.M. said that the vehicle had been stolen and that she didn't know McCants. But police eventually found photos on social media of E.M. and McCants together. Later, police also determined that the two were living together at the time of the incident.

¶ 10 About four months after the eluding incident, McCants was arrested and charged with a class 5 felony for vehicular eluding, § 18-9-116.5, C.R.S. 2021; a class 2 traffic offense for reckless driving (second offense), § 42-4-1401(1), (2), C.R.S. 2021; and a class 2 misdemeanor for driving after revocation prohibited (habitual traffic offender), § 42-2-206(1)(a), C.R.S. 2021. (The driving after revocation charge was dismissed by the People prior to trial.)

¶ 11 McCants’ theory of defense at trial was that he wasn't the driver and that Officer M. had misidentified him. At trial, Officer M. testified as to his eyewitness identification of McCants as the driver at the time of the alleged eluding. Officer M. testified that he had a clear view of McCants’ face.

¶ 12 The jury found McCants guilty of vehicular eluding and reckless driving. Although the prosecutor conceded at sentencing that vehicular eluding and reckless driving should merge, the court entered both convictions at sentencing.

II. Analysis

¶ 13 McCants raises five contentions on appeal. He contends that the trial court erred by

• finding that Officer M.’s out-of-court identification of him was reliable;

• admitting evidence that he had been pulled over for an unrelated traffic offense while driving the same car that had eluded officers;

• refusing to give his tendered jury instruction telling the jury that a police officer's testimony is no more reliable than a lay witness's testimony;

• failing to conduct an in camera review of Officer M.’s disciplinary and personnel files; and

• failing to merge the conviction for reckless driving into the conviction for vehicular eluding.

¶ 14 We analyze each contention, in turn, below.

A. Out-of-Court Identification

¶ 15 First, McCants contends the trial court erred by refusing to suppress Officer M.’s in-court identification of him following an allegedly unduly suggestive out-of-court photograph identification. Because the trial court didn't make any findings related to the reliability of Officer M.’s identification — and because we conclude that this omission was error — we remand the case to the trial court for further findings.

1. Legal Principles and Standard of Review

¶ 16 Generally, a witness's in-court identification cannot be based on an earlier, unreliable out-of-court identification. People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003). This is because a defendant's right to due process is violated by admitting the results of an impermissibly suggestive identification procedure unless the totality of the circumstances demonstrates that the procedure was sufficiently reliable despite its suggestiveness. Manson v. Brathwaite , 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ; Biggers , 409 U.S. at 196, 93 S.Ct. 375.

¶ 17 Assessing the reliability of an out-of-court identification from a photograph requires a two-part analysis. Biggers , 409 U.S. at 198, 93 S.Ct. 375 ; Bernal , 44 P.3d at 191. First, a court must determine whether the photo array was impermissibly suggestive. Biggers , 409 U.S. at 196-97, 93 S.Ct. 375 ; Bernal , 44 P.3d at 191. The defendant bears the burden of proving the array was impermissibly suggestive. If this burden is carried, the prosecution then has the burden to show that, despite the improper suggestiveness, the identification nevertheless is reliable under the totality of the circumstances. Biggers , 409 U.S. at 199, 93 S.Ct. 375 ; Bernal , 44 P.3d at 191.

[T]he factors to be considered in evaluating the likelihood of misidentification include [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.

Biggers , 409 U.S. at 199-200, 93 S.Ct. 375.

¶ 18 "[R]eliability is the linchpin in determining the admissibility of identification testimony...." Brathwaite , 432 U.S. at 114, 97 S.Ct. 2243. In analyzing the totality of the circumstances, the trial court must balance the photo array's suggestiveness against the indicia of reliability surrounding the identification. Id. ; Bernal , 44 P.3d at 192.

¶ 19 Identification evidence violates due process only when the evidence was a product "of an out-of-court identification procedure that was so suggestive in the totality of the circumstances that it created a very substantial likelihood of misidentification" or unreliable in-court identification. Bernal , 44 P.3d at 205 (citing Brathwaite , 432 U.S. at 116, 97 S.Ct. 2243 ). Single-photograph displays are disfavored and tend to be suggestive, but they are not per se due process violations. Brathwaite , 432 U.S. at 113-14, 97 S.Ct. 2243 ; People v. Weller , 679 P.2d 1077, 1083 (Colo. 1984).

¶ 20 The constitutionality of an out-of-court identification procedure is a mixed question of fact and law; we defer to the trial court's findings of fact if they have any record support but do not defer to its conclusions of law. Bernal , 44 P.3d at 190. If...