People v. Monroe, No. 95SC485

Docket NºNo. 95SC485
Citation925 P.2d 767
Case DateSeptember 23, 1996

Page 767

925 P.2d 767
The PEOPLE of the State of Colorado, Petitioner,
Derek L. MONROE, Respondent.
No. 95SC485.
Supreme Court of Colorado,
En Banc.
Sept. 23, 1996.
As Modified Oct. 9, 1996.

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Gale A. Norton, Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Denver, for Petitioner.

Patrick J. Mulligan, Denver, for Respondent.

Justice HOBBS delivered the Opinion of the Court.

We granted the People's cross-petition for certiorari review 1 of that portion of People v. Monroe, 907 P.2d 690 (Colo.App.1995), holding that in criminal proceedings a witness's in-court identification testimony must be based on prior independent observations of the defendant even where the witness has not participated in a pretrial identification procedure. We disapprove of the court of appeals analysis of this issue based on People v. Walker, 666 P.2d 113 (Colo.1983).

Defendant Derek Monroe (Monroe) was convicted of four counts of first degree attempted murder, § 18-3-101, 8B C.R.S. (1986); three counts of first degree assault, § 18-3-202, 8B C.R.S. (1986); second degree assault, § 18-3-203, 8B C.R.S. (1986); second degree forgery, § 18-5-103, 8B C.R.S. (1986); criminal impersonation, § 18-5-113, 8B C.R.S. (1986); and numerous counts of mandatory sentencing for a crime of violence, § 16-11-309, 8A C.R.S. (1986). On appeal, Monroe's judgment of conviction was upheld by the court of appeals, and we refused certiorari except for the in-court identification question.

The People contend that the court of appeals incorrectly adopted a per se rule of impermissible suggestiveness regarding first-time in-court identification testimony, erroneously imposing upon the prosecution a burden to prove by clear and convincing evidence that the witness called to testify has an independent source for the identification. We agree, and disapprove the expansion of People v. Walker expressed by the court of appeals.


Monroe was convicted of crimes resulting from an argument at a basketball game in Aurora on the evening of July 8, 1992, at Del Mar Park. After the basketball game, Monroe and his companion, Cedric Turner, returned to their automobile. The argument continued as some of the basketball players passed the automobile. Monroe retrieved and began firing an automatic weapon. Three persons who had been at the basketball court, Manchelle England, Ladale Goodlow, and Victor Garmes, were shot; all survived.

That evening, Malcolm Thomas, one of the basketball players who escaped being shot, was shown a photographic lineup at the Aurora Police Department which did not include

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Monroe or Turner. No identification was made. Later in the evening, after looking at a Montbello class photograph, Thomas called Aurora police to report his belief that Turner was the companion of the person who did the shooting.

Four days later, on July 12, 1992, Thomas saw Turner and the assailant at a skating rink in Thornton. When Monroe was thereafter arrested, he presented police with a false driver's license, but subsequent investigation revealed his true identity.

On July 13, 1992, Aurora police visited victim Goodlow in the hospital. Upon being shown two photographic lineups, Goodlow positively identified Monroe as his assailant. After England was released from the hospital, he identified Monroe through a photographic lineup as the individual who had shot him.

Prior to trial, counsel for Monroe filed a notice of alibi and a motion to suppress all identifications. At trial, Monroe maintained his mistaken identity defense. Thomas, England, and Goodlow identified Monroe as the shooter. Garmes testified that he could not identify his assailant.

For the purpose of additional identification testimony, the prosecution called to the stand another of the basketball players, Brady Crenshaw, who had not been involved in any pretrial identification procedure. Monroe's counsel then requested and received an in camera evidentiary hearing at which Crenshaw confronted and identified Monroe. As a result of Crenshaw's in camera testimony, the trial court ruled that Crenshaw had an independent basis for identifying the defendant in court, and denied the motion to suppress. The witness then repeated his identification testimony to the jury.

In obtaining the in camera evidentiary hearing, Monroe's counsel contended that an in-court identification would necessarily be a suggestive one-on-one showup. The prosecution objected, arguing that Crenshaw's testimony to the jury should be allowed because he had not been subjected to a prior identification procedure. No alternatives to the in camera evidentiary hearing were suggested by counsel or considered by the trial court, although the trial judge was clearly concerned about proceeding to:

simply call him [Crenshaw] to the witness stand and then ask whether he can identify anyone as being [the person who accompanied Turner off the basketball court], knowing that at that point the defendant is seated clearly at a table marked Defense and is the only young black man in the courtroom, except for one of the jurors.

In affirming the trial court's use of the independent source rule, the court of appeals enunciated the following rule for in-court identification by a witness who previously has not participated in an identification procedure:

Contrary to the People's suggestion, Colorado law recognizes that in-court identifications may be per se impermissibly suggestive because the physical arrangement of the courtroom demonstrates to the witness that it is the defendant who is charged. Thus, even though a witness has not participated in any pre-trial identification procedure, the People are nonetheless required to make the same showing on such testimony as would be necessary had the witness been subjected to an impermissibly suggestive pre-trial procedure. People v. Walker, 666 P.2d 113 (Colo.1983).

The People have the burden of establishing by clear and convincing evidence that the in-court identification is based upon the witness' prior independent observations of the defendant. In determining whether the witness possesses such an independent basis, the court considers five factors: (1) the opportunity of the witness to view the criminal at the time in question; (2) the witness' degree of attention; (3) the accuracy of any prior description of the criminal by the witness; (4) the level of certainty demonstrated by the witness at the later confrontation; and (5) the time which has elapsed between the crime and the confrontation. People v. Walker, supra.

Monroe, 907 P.2d at 696 (emphasis added).

We agree with the People's argument that the court of appeals incorrectly adopted a per se rule of suggestiveness regarding in-court identification testimony by a witness

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who had not been involved previously in any identification procedure.


In 1967 the United States Supreme Court decided a trilogy of cases that were the first to apply exclusionary rules to in-court identification of perpetrators by eyewitnesses to the crime. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Wade and Gilbert created rules for exclusion of courtroom identification of the accused in cases where law enforcement authorities had violated defendants' Sixth Amendment rights by exhibiting them to witnesses in post-indictment, pretrial lineups, without notice to and in the absence of defense counsel. 2 Once eyewitness identification has been properly admitted, its reliability and credibility are questions for the jury to determine, like other parts of the prosecution's case. However, "it is the teaching of Wade, Gilbert, and Stovall, supra, that in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law." Foster v. California, 394 U.S. 440, 442 n. 2, 89 S.Ct. 1127, 1128 n. 2, 22 L.Ed.2d 402 (1969). Prior to these cases, the manner of a witness's extra-judicial identification of the accused was held to affect the weight but not the admissibility of identification testimony at trial. Simmons v. United States, 390 U.S. 377, 382, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968).

Gilbert required the per se exclusion of testimony that the witnesses had identified the accused at the illegal lineup, 388 U.S. at 273, 87 S.Ct. at 1957, and both Wade and Gilbert held that in-court identification of the accused by a witness who attended the illegal lineup may be permissible after a determination that the witness had an independent source for identification, id. at 272, 87 S.Ct. at 1956 (citing to Wade ). More specifically, unless the state can prove by clear and convincing evidence that the in-court identification of the accused is based upon a source independent of the illegal lineup identification, the in-court identification must be suppressed. Wade, 388 U.S. at 239-40, 87 S.Ct. at 1938-39.

Noting the importance of the initial identification procedure, 3 Wade reasoned that defendants were entitled to have counsel present at post-indictment pretrial identification procedures to protect against suggestiveness, Wade, 388 U.S. at 236-38, 87 S.Ct. at 1937-38, "by objecting to suggestive features of a procedure before they influence a witness' identification." Moore v. Illinois, 434 U.S. 220, 225, 98 S.Ct. 458, 463, 54 L.Ed.2d 424 (1977) (interpreting Wade ).

Stovall, decided the same day as Wade and Gilbert, considered whether, independent of a Sixth Amendment claim, an out-of-court pretrial confrontation between a witness and the accused might be "so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was

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denied due process of law," Stovall, 388 U.S. at...

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