People v. Parks, 86SA265

• Decision Date: 01 February 1988
• Docket Number: No. 86SA265,86SA265
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jerreld Wayne PARKS, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 417

749 P.2d 417

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jerreld Wayne PARKS, Defendant-Appellee.

No. 86SA265.

Supreme Court of Colorado,

En Banc.

Feb. 1, 1988.

James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Michael J Milne, Deputy Dist. Atty., Brighton, for plaintiff-appellant.

David F. Vela, State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellee.

QUINN, Chief Justice.

The People appeal from a judgment of acquittal notwithstanding a jury verdict finding the defendant, Jerreld Parks, guilty of aggravated robbery. In entering the judgment of acquittal, the district court ruled that evidence concerning the identification of the defendant as the perpetrator of the crime was insufficient as a matter of law to support the guilty verdict. We reverse and remand the case to the district court for further proceedings.

I.

The defendant was charged with aggravated robbery by using a deadly weapon, a handgun, in taking money from the person or presence of Daniel Rupp on October 23, 1985, in Adams County, Colorado. The defendant entered a not guilty plea to the charge, and the case was tried to a jury commencing on April 24, 1986. Because the issue before us relates to the legal sufficiency of the evidence to support the verdict, a detailed statement of the evidence admitted at trial is necessary.

Daniel Rupp, the victim of the aggravated robbery, testified that at approximately 8:15 p.m. on October 23, 1985, he was working alone as a cashier at a Vickers gas station when he was confronted by a black male carrying a gun in his left hand. The man was wearing dark sunglasses, a baseball cap with the brim to the rear, a blue jean coat, jean pants, and high-top tennis shoes. The man pointed the gun at Rupp and stated that he wanted money. He told Rupp to "put down the [writing] pen" which Rupp was holding and to "hurry up" and give him the money. After Rupp gave him approximately $130 from the cash drawer, the man left the store and started walking away from the building toward the west. Rupp watched the man walk away and then telephoned the police. An officer responded to the scene and conducted an investigation.

During Rupp's direct examination, the prosecutor requested the defendant to stand up and repeat the following words: "Put down the pen." The defendant complied without objection with the prosecutor's request. Rupp then testified that, based on the defendant's speech, build, and manner of talking, he was 99.9 percent certain that the defendant was the person who committed the robbery. Rupp acknowledged in the course of his direct examination that he had previously attended a preliminary hearing and had testified at that hearing that the defendant was "possibly" the person who had robbed him on the night in question. Rupp further testified, however, that after hearing the defendant speak the words "hurry up" at the preliminary hearing, he was then "99.9 percent certain" of his identification of the defendant.

In cross-examining Rupp at trial, defense counsel pointed out that the defendant was the only black person in the courtroom during the preliminary hearing. Defense counsel also established that at the preliminary hearing Rupp testified that the robber was in the station for approximately a minute and a half, but Rupp's trial testimony was that the robber was in the station for no more than twenty seconds. Defense counsel further established that Rupp told the investigating officer that the robber had a relatively thin nose and no mustache, when in fact the defendant had a mustache, a broad nose, and also a permanent scar on his forehead. Rupp acknowledged that he did not tell the police that the robber had a scar on his forehead, but added that he did not get a good look at the robber's entire face because he (the robber) was wearing sunglasses and his hat was pulled down low on his forehead. During cross-examination Rupp repeated his prior testimony that he was 99.9 percent certain of his identification, stating that the defendant "looked closer to the person that robbed [him] than nine out of ten men you take off the street."

The prosecution also elicited testimony from Harold Myers. He testified that he lived in an apartment complex one block west of the Vickers station and was standing in the parking lot of the complex around 8:00 p.m. on October 23, 1985. At that time he observed a man drive a car into the parking lot and park under a street light approximately 60 feet from where he was standing. Myers saw a black man get out of the car, put on a baseball cap backwards, and walk in the direction of the Vickers station. According to Myers' testimony, he was able to clearly see the man's face as the man got out of the car. He described the man as approximately five feet nine inches tall, wearing dark clothing, and carrying an unidentified object in his left hand. Myers further testified that a few minutes after initially seeing this man in the parking lot, he again observed the same man walking back to the car, getting into the car, and driving away. He described the car as a dark gray Camaro, "a two door sporty-type car," with a rear Colorado license plate that ended with the numbers 166. Myers testified that although he could not remember the three letters preceding the numbers, he believed that two of the letters were EA and he was certain that the three letters had a "rhythm to [them]." He described the car to the investigating officer and told him that the front plate of the car was a decorative, metallic-like plate.

During Myers' redirect examination, Deputy District Attorney Meinert, who was prosecuting the case, asked him whether he remembered Meinert being at the preliminary hearing. Myers responded that he was sure that Meinert had been there. At the close of Myers' redirect testimony, the district court inquired of Deputy District Attorney Meinert, out of the jury's presence, whether he had actually conducted the preliminary hearing. When Meinert stated that in fact he had not, the court informed the jury that it was taking judicial notice of the fact that Meinert had not conducted the preliminary hearing.

The prosecution also presented testimony from Officer Larry Peterson of the Adams County Sheriff's Department. Officer Peterson conducted a follow-up investigation of the robbery. He testified that after he had received information from Rupp and Myers concerning their observations on the night in question, he recalled having seen a "contact card" which reported a traffic stop of a black male driving a Chevrolet Camaro with a Colorado license plate ending in 166. A check of the contact card indicated that the driver of the car was Jerreld Wayne Parks and the full license plate number was SEA-166. Officer Peterson then contacted the Department of Motor Vehicles for a registration check on the vehicle and learned that the vehicle was registered to Jerreld Parks who lived at 7840 Valley View Drive.

Officer Peterson further testified that on October 24, 1986, the day after the robbery, he contacted Rupp at the Vickers station and showed him a folder containing photographs of six black males, including the defendant. Peterson asked Rupp if he recognized any of them. Rupp periodically looked at the photographs while waiting on customers and then selected two photographs, neither of which was the defendant's, and told the officer that either photograph could possibly be a photo of the man who had robbed him. Rupp also told the officer that, although he was not sure about any of the photographs, the other photographs did not look familiar.

Officer Peterson showed the same six photographs to Myers on the same day and asked if he could identify any of them. At first Myers selected two photographs, one of which was a picture of the defendant. Approximately thirty minutes later, Myers again looked at the six photographs and told Officer Peterson that he was "almost positive" that the photograph of the defendant depicted the person that he had seen in the parking lot on the night of the robbery. On the following day, October 25, 1985, the officer took Myers to the defendant's neighborhood and asked him whether any of the vehicles looked familiar. Myers identified the defendant's gray Camaro as the car which he had seen in the parking lot on the night of the robbery.

At the conclusion of the prosecution's case, the defendant made a motion for a judgment of acquittal. The court denied the motion. Before presenting any evidence, defense counsel, with the court's approval, called Deputy District Attorney Michael Milne, who represented the prosecution at the preliminary hearing, and requested him to stand before the jury. The deputy district attorney complied. Defense counsel then called as his sole witness Rachael Vigil, a private investigator. She testified that the defendant was five feet seven inches tall, and that, according to her measurements, the distance from the point where Myers claimed he was standing in the parking lot to the point where the man parked a vehicle in the parking lot and got out of the vehicle was seventy feet.

The prosecution then called Myers as a rebuttal witness. Myers identified Deputy District Attorney Milne as the prosecuting attorney at the preliminary hearing, and acknowledged that he had been mistaken when he testified earlier that Deputy District Attorney Meinert had conducted the preliminary hearing.

After closing arguments, the jury deliberated and ultimately returned a guilty verdict to the charge of aggravated robbery. After receiving the verdict, the court informed counsel for both sides that it had "some real hesitancy about the verdict of the jury as it relates to the identification [of the defendant]." The court requested defense counsel to file a motion for a judgment of acquittal notwithstanding the verdict. The motion was filed and, after...