People v. Owens

• Decision Date: 29 January 2004
• Docket Number: No. 01CA1712.,01CA1712.
• Citation: 97 P.3d 227
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony L. OWENS, Defendant-Appellant.
• Court: Colorado Court of Appeals

97 P.3d 227

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony L. OWENS, Defendant-Appellant.

No. 01CA1712.

Colorado Court of Appeals, Div. I.

January 29, 2004.

Rehearing Denied April 1, 2004.

Certiorari Denied August 16, 2004.

Ken Salazar, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

James Grimaldi, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Anthony L. Owens, appeals the judgments of conviction and sentences imposed following jury verdicts finding him guilty of one count of first degree kidnapping, six counts of second degree kidnapping, five counts of aggravated robbery, and two counts of menacing. We affirm in part, reverse in part, and remand with directions.

Defendant's convictions and sentences here arose from three incidents in which three fast-food restaurants were robbed at closing time. Defendant was caught by the police while attempting to flee the scene of the last incident and thereafter was linked to the other two.

Although charges in connection with each incident were separately filed, the trial court consolidated the three cases for trial. A jury found defendant guilty, and he was sentenced, after being adjudicated an habitual offender, to an aggregate term of 760 years imprisonment.

I.

Defendant contends that the trial court erred in consolidating the three cases for trial. We disagree.

A.

Initially, we reject, for the reasons stated in People v. Gross, 39 P.3d 1279, 1281-82 (Colo.App.2001), the prosecution's assertion that defendant waived this contention by not renewing his pretrial objection to consolidation.

B.

Whether to consolidate separate cases lies within the trial court's discretion and its determination will not be disturbed on appeal unless that discretion is abused. "Consolidation is permissible if all of the offenses are of the same or similar character or are based on two or more acts or transactions that are connected together or are part of a single scheme and plan." People v. Gross, supra, 39 P.3d at 1282.

In determining whether the offenses qualify for consolidation, "it is not essential that the means of committing the other crimes replicate in all respects the manner in which the crime charged was committed." People v. McKibben, 862 P.2d 991, 993 (Colo.App.1993)(discussing admissibility of CRE 404(b) other bad acts evidence, in general).

Here, the court found that, although the incidents were not similar in all respects, they were sufficiently similar to permit the evidence concerning them to be admitted in one consolidated trial. See generally People v. Rath, 44 P.3d 1033, 1043 (Colo.2002)

(discussing degrees of similarity of other bad acts evidence). Each incident involved the robbery of a fast-food restaurant by a black male, occurred at closing time, and encompassed the seizure of at least one employee. Further, the incidents occurred within ten days of one another and within a thirty-five-block area. Defendant was ultimately identified, in varying degrees of strength, in all three incidents. And a bladed weapon was used in all three incidents, a fact that the trial court found to be of particular significance "in this day and age."

Because we agree that evidence of each offense would have been admissible in separate trials, we conclude that the trial court did not abuse its discretion in consolidating the cases. See People v. Gross, supra, 39 P.3d at 1282

; see also People v. Early, 692 P.2d 1116, 1119 (Colo.App.1984).

C.

We reject defendant's assertion that, inasmuch as he had confessed to only one incident, it was unfair to try him for all three incidents in one trial. See United States v. Cox, 934 F.2d 1114, 1120 (10th Cir.1991)

(severance of counts not required because government's evidence was stronger on some counts). Even if, as defendant alleges for the first time on appeal, parts of his confession would have been inadmissible in trials of the other two incidents, a redaction of parts of the confession, not denial of consolidation, would have been the appropriate remedy.

And contrary to defendant's contention, reversal is not required because the trial court failed to sua sponte limit the purposes for which the jury could consider evidence of each incident in relation to the other two. See Cordova v. People, 880 P.2d 1216, 1220 (Colo.1994)

(no limiting instruction required where evidence of each incident was presented as direct evidence in support of particular counts).

II.

Defendant contends that the trial court erred in not suppressing on due process grounds certain identification evidence. We disagree.

As pertinent here, a detective presented employees of two of the restaurants with a photo array containing the pictures of six men, including defendant. Defendant's picture was selected as that of (1) the robber by one employee from each of the two restaurants and (2) the person in the array who most looked like the robber by two other employees of one restaurant.

A.

On appeal, defendant asserts that this identification evidence is inadmissible because of impermissible suggestiveness in either the array itself or the manner in which the array was presented to some of the witnesses. We are not persuaded.

A defendant is denied due process by an out-of-court identification procedure which is so suggestive that it renders unreliable any resulting identification testimony. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

In challenging the admissibility of identification evidence under the Due Process Clause, the defendant bears the burden of showing that the identification procedure, here the use of a photo array, was impermissibly suggestive. If the defendant meets that burden, the evidence is inadmissible unless the prosecution demonstrates that the identification was reliable despite the improper suggestiveness. Bernal v. People, 44 P.3d 184, 191 (Colo.2002).

Because the resolution of defendant's due process challenge involves a mixed question of fact and law, we give deference to the trial court's findings of historical fact, but may give different weight to those facts and reach a different legal conclusion from the trial court. See Bernal v. People, supra, 44 P.3d at 190

.

A number of factors are relevant in evaluating whether a pretrial identification procedure is impermissibly suggestive, including the size of any array, the details of the photographs themselves, and the manner of presentation of the array. Bernal v. People, supra, 44 P.3d at 191.

An array of six photographs, which depicts individuals matched by race, approximate age, facial hair, and a number of other characteristics and which does not include a photograph unique in some manner directly related to an important identification factor, comports with due process. People v. Borghesi, 66 P.3d 93, 104 (Colo.2003); Bernal v. People, supra, 44 P.3d at 192.

After reviewing the array, we, like the trial court, conclude that there is nothing about it (including any particular look of despondency) to make defendant stand out from the other men. While defendant is shown in a green shirt, nothing in or about his picture suggests that the shirt originated from the department of corrections, as opposed to some more innocuous source, such as hospital attire. Nor were there any uniquely suggestive features that were directly related to an important identification factor.

Regarding the manner in which the array was presented, we reject defendant's assertion that impermissible suggestiveness resulted from the detective's request of two witnesses to see whether they could identify the perpetrator, or the person who looked most like the perpetrator, from the array. As noted by the division in People v. Gonzales, 631 P.2d 1170, 1171 (Colo.App.1981)(discussing a police directive to a witness to concentrate, when viewing a photo array, on things that could not be changed about a person's features), "[T]he comment... was neutral as to all photographs in the display and did not suggest that any particular photograph should be selected." Cf. People v. Walford, 716 P.2d 137, 140 (Colo.App.1985)

("An otherwise properly conducted lineup is not constitutionally infirm where a witness knows only that a suspect has been arrested and has been included in the lineup.").

B.

Defendant also asserts that due process requires exclusion of one witness's identification evidence because, while viewing the array, an individual called out to the witness not to snitch on her friends. We are not persuaded.

In People v. Hardiway, 874 P.2d 425, 429 (Colo.App.1993), a division of this court declined to resolve whether a defendant was required to show state action as part of a due process challenge to the admissibility of identification evidence.

Some courts hold that a showing of state action is not necessary based on the view that, in this context, due process protects an accused not from police misconduct but from unreliable evidence per se. See Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir.1998)

; United States v. Bouthot, 878 F.2d 1506, 1515-16 (1st Cir.1989); Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986); People v. Blackman, 110 A.D.2d 596, 598, 488 N.Y.S.2d 395, 397 (1985).

The majority of jurisdictions that have considered the issue, however, has determined otherwise. See State v. Reid, 91 S.W.3d 247, 272 (Tenn.2002)

. Under this line of authority, a showing of state action is required because due process protects an accused only from the admission of unreliable evidence caused by governmental action. See State v. Reid, supra; see also United States v. Zeiler, 470 F.2d 717, 720 (3d Cir.1972); Semple v. State, 271 Ga. 416, 519 S.E.2d 912, 914 (1999); Harris v. State, 619 N.E.2d 577, 581 (Ind.1993); Wilson v. Commonwealth, 695 S.W.2d 854, 857 (Ky.1985); Tidwell v. State, 784 S.W.2d 645, 647 (Mo.Ct.App.1990); State v. Brown, 38 Ohio St.3d 305, ...