People v. Montanez

• Citation: 944 P.2d 529
• Decision Date: 10 October 1996
• Docket Number: No. 94CA0953,94CA0953
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David MONTANEZ, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 529

944 P.2d 529

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David MONTANEZ, Defendant-Appellant.

No. 94CA0953.

Colorado Court of Appeals,

Div. I.

Oct. 10, 1996.

As Modified on Denial of Rehearing

Jan. 23, 1997. ^*

Certiorari Granted Oct. 20, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Daniel J. O'Brien, Special Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, State Public Defender, Julie Iskenderian, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of first degree burglary, one count of crime of violence, and one count of aggravated robbery. We affirm.

In August 1992, a family was robbed at gunpoint in their home. During the two months following the robbery, each victim was shown three separate "photo lineups," each of which consisted of a group of six photographs of men who roughly matched the victims' description of the person who had robbed them.

After viewing the first set of photographs, each of the victims stated that one of the photographed persons resembled the robber. In the second photographic array, the victims did not recognize any of the persons pictured. Defendant's photograph was not included in either array.

In October 1992, the victims were shown the third photographic lineup, which contained defendant's picture. After certain events more fully described below, one victim identified defendant's photograph as being most likely that of the robber.

At defendant's preliminary hearing, that victim again identified defendant as the person who had robbed him and his family.

At trial, the jury found defendant guilty of two counts of first degree burglary and one count of aggravated robbery; however, it initially returned a verdict finding defendant not guilty on the crime of violence count. The court polled the jurors and each affirmed the verdict as his or her own. Thereafter, the trial court accepted the verdict, discharged the jury, and proceeded to discuss sentencing with counsel.

A few minutes later, as the sentencing discussions continued, the bailiff informed the court that some of the jurors had told her that they filled out one of the verdict forms wrong. The trial court then ordered the bailiff to bring the jurors back to the courtroom.

After the jury was reassembled the trial court polled the jurors again, over defense counsel's objection. This time, each juror stated that the "not guilty" finding on the crime of violence count was in error. Accordingly, the trial court ordered the jurors again to deliberate and to amend their findings as they saw fit. After a short period of deliberation, the jurors returned and announced that they had changed their finding on the crime of violence count from "not guilty" to "guilty." The trial court again polled the jurors and, finding unanimous agreement on each count, accepted the verdicts and discharged the jury.

I.

Defendant contends that one victim's photographic array identification and his in-court identification were impermissibly suggestive, and that the trial court erred in refusing to suppress them. We disagree.

In considering a claim that the identification procedures used violated due process, the court must decide whether the resulting identification is reliable under the totality of the circumstances surrounding the confrontation. People v. Jones, 191 Colo. 385, 553 P.2d 770 (1976); People v. Walker, 666 P.2d 113 (Colo.1983).

Five factors should be considered: "(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; (5) the time which has elapsed between the crime and the confrontation." People v. Walker, supra, at 119.

Here, the trial court found that the victim "was in close contact. In other words, within the--the confines of the same room with the perpetrator of the crime for approximately 40 minutes out of the total time which exceeded an hour that the perpetrator was in the residence." And, the victim's opportunities to observe were much greater than those of the other two victims.

We view these findings as indicative of the court's determination that the first two factors of the test were supported by adequate evidence showing reliability.

As to the last three parts of the test, a brief chronology of events is necessary.

The robbery occurred on August 9 and 10, 1992. The victim described the perpetrator as "5'10"' to 6', 160 to 180 pounds, Spanish-American male, light complexion, black hair slicked back and with a goatee and mustache." On August 19, the victim assisted a police sketch artist in preparing a composite drawing of the perpetrator.

On September 1 and 9, 1992, the victim was shown two photographic lineups. At the first lineup, the victim indicated that "there was a possible identification with photo number 3"; at the second lineup the victim did not select any photograph. Defendant's photograph was not included in either array.

Then, on October 21, the victim was shown a third photographic lineup. He stated that he "wasn't comfortable in picking anybody out." The detective put the array away and advised the victim that "at this time I felt we had someone in custody that had committed the crime to his residence and his family." The victim then asked if the person was in any of the photographs he'd been shown and the detective replied that he could not tell him that. The victim asked to see the lineup again and, after looking it over, said, "If it's any one of them it's photo number 2." That photograph was of the defendant.

The trial court made no specific finding regarding the accuracy of the victim's prior description of the perpetrator. However, we note that, based on this victim's description, 10 days after the crime a police sketch artist prepared a composite drawing which bears a resemblance to the lineup photograph of defendant. The discrepancy between the physical description given and the characteristics of defendant--5'10"' to 6' and 150 to 160 pounds v. 5'7"' and 140 pounds--is not so great as to mandate a finding of inaccuracy.

The victim's level of certainty at the time of the confrontation, is less than positive, to be sure.

And, it is undisputed that the time elapsed between the crime and the final photographic lineup was approximately two and one-half months.

The trial court concluded that, because no improper police conduct had occurred, the photographic identification should not be suppressed. It noted: "It's very clear that there was nothing that was being motivated at this point in time by the police officer." This determination is supported by competent evidence in the record. Thus, the ruling will not be set aside on appeal. Young v. People, 175 Colo. 461, 488 P.2d 567 (1971).

The detective's comments at the third photographic lineup gave no indication to the victim that a particular photograph should be selected. His statement that the police had a suspect in jail gave no hint as to which, if any, of the persons in the photographs might be the suspect. Indeed, in our view, the detective properly declined to tell the victim whether the jailed suspect's photo was in the array.

Contrary to defendant's contention, the prosecution does not have a per se burden to show that in-court identification testimony is not the product of an unduly suggestive procedure. People v. Monroe, 925 P.2d 767 (Colo.1996). The trial court's finding, weighing the totality of circumstances in light of the factors in People v. Walker, supra, is well supported and will not be disturbed. Therefore, we find no error in the trial court's conclusion that the victim's in-court identification of defendant was proper and that defendant's objections go to the weight of this victim's identification, not to its admissibility. People v. Thorpe, 641 P.2d 935 (Colo.1982). As the United States Supreme Court noted in Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 155 (1977): "We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."

II.

Defendant next contends that, because the two counts of first degree burglary were supported by identical evidence, the trial court erred in determining that the prosecution was not required to elect between them. We disagree.

Here, one count alleged that defendant was armed with a deadly weapon at the time of the burglary while the other alleged that he menaced the victims during the course of the burglary.

Section 18-1-408(3), C.R.S. (1986 Repl.Vol. 8B) requires that, if two or more charged offenses arise from the same criminal episode and are supported by identical evidence, the trial court is required to impose concurrent sentences. People v. Tivis, 727 P.2d 392 (Colo.App.1986).

Under § 18-4-202(1), C.R.S. (1986 Repl.Vol. 8B):

A person commits first degree burglary if he knowingly enters or remains unlawfully in a building or occupied structure with intent to commit therein a crime ... and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, he ... menaces any person, or ... is armed with ... a deadly weapon.

Menacing consists of the knowing use of threats or physical action to place or attempt to place another person in fear of imminent serious bodily injury. See § 18-3-206, C.R.S. (1986 Repl.Vol. 8B). "However, there is no requirement in [the first degree...