People v. Roybal, 86CA0492

• Decision Date: 20 April 1989
• Docket Number: No. 86CA0492,86CA0492
• Citation: 775 P.2d 67
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricardo ROYBAL, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 67

775 P.2d 67

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricardo ROYBAL, Defendant-Appellant.

No. 86CA0492.

Colorado Court of Appeals,

Div. V.

April 20, 1989.

Rehearing Denied May 25, 1989.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Neil MacFarlane, Denver, for defendant-appellant.

HUME, Judge.

Defendant, Ricardo Roybal, appeals judgments of conviction entered on jury verdicts finding him guilty of first degree sexual assault and aggravated robbery and adjudging him an habitual offender. He asserts that the court erred in admitting evidence of his identification by the victim, in admitting evidence which implied his misconduct unrelated to the charged offenses, in denying his motion for mistrial because of alleged prosecutorial misconduct, and in refusing to suppress the use of a prior conviction to support the habitual criminal charge and the resulting sentence. He also claims that the court erred in denying his motion for new trial based upon his claim of ineffective assistance of counsel. We affirm.

I.

Defendant first contends that the court erred in refusing to suppress evidence of his identification by the victim, urging that her identification was tainted by the use of impermissibly suggestive photographic arrays. We disagree.

The police assembled a photographic array consisting of frontal and profile facial views of nine persons who generally met the description given by the victim when she reported the assault. The photographs of defendant which were included in the first array were several years old.

Upon viewing that array, the victim's attention appeared to focus on defendant's photographs, but she remarked that the features shown appeared to be "too chiseled" or "too defined." She was then asked by a police officer whether "adding 20 pounds" to any of the subjects would assist her in making an identification, and she replied that it would not. No identification resulted from the victim's view of the first array.

Subsequently, the police assembled a second array which included more recent photographs of the defendant and eight other individuals. When the victim was shown the second array, several days after having viewed the first, she immediately identified defendant's photographs as those of her assailant.

An out-of-court identification procedure is impermissibly suggestive if there is a substantial likelihood of misidentification based upon the totality of the circumstances. People v. Weller, 679 P.2d 1077 (Colo.1984). Some of the factors to be considered in evaluating these circumstances are: the witness' opportunity to view the criminal; the witness' degree of attention; the accuracy of any prior description; the witness' level of certainty; and the time elapsed since the crime. People v. Borrego, 668 P.2d 21 (Colo.App.1983).

The court considered these factors, among others, and made findings supporting its conclusion that the identification procedures used here were not impermissibly suggestive. We find no error in that ruling.

The fact that only defendant's photographs were included in both arrays does not, in itself, render the process impermissibly suggestive. See People v. Duncan, 754 P.2d 796 (Colo.App.1988). The record reflects that the victim was not shown both arrays at the same time, nor was she told that any of the subjects in the second array had also been included in the first. The officer's query whether adding 20 pounds to any of the subjects did not suggest that the victim select any of the photographs exhibited, nor did it prompt an immediate identification. Considering the lapse of time between their use, and the distinct differences between defendant's features in the separate arrays, we find any conjecture that the question prompted the later identification to be tenuous at best. Such conjecture falls far short of demonstrating a substantial likelihood of misidentification.

Also, we reject defendant's argument that a photographic identification procedure is improper if the police could have conducted a corporeal lineup instead.

We conclude that evidence of both the victim's in-court and out-of-court identification was properly admitted here.

II.

Defendant next contends that the court erred in admitting evidence from which the jury might have inferred his involvement in unrelated criminal activity. We disagree.

In investigating the reported assault, police discovered an apparently abandoned and partially dismantled car in a garage near the victim's apartment where the assault had occurred. They later learned that the vehicle belonged to defendant, who had reported it stolen 10 days prior to the assault.

The police auto-theft investigator thought it unusual that the owner's license plates had been left on the car for 10 days while it was apparently being "stripped," and that the "stripping" had apparently been accomplished in an unusually slow and methodical manner. Suspecting that the owner might have falsely reported the car's theft and his possible involvement in an "insurance scam," the investigator decided to check the owner's criminal record.

That check revealed that defendant did have a prior criminal record which included a conviction for sexual assault. Aware that a reported sexual assault had led to the car's discovery, the theft investigator suggested and assisted in including defendant's photographs in the arrays described in Part I of this opinion.

After a pretrial hearing, the court entered an order precluding the prosecution from offering trial testimony that alluded to defendant's prior criminal record. The order also precluded testimony about police suspicions of defendant's possible involvement in false reporting of auto theft or an "insurance scam," or about the car's having been "stripped." However, the court admitted testimony at trial that defendant had reported the car stolen on July 1, 1985; that it had been discovered by the police in the garage on July 10, 1985; that the theft investigator thought it "unusual" that license plates were still on the car when it was discovered; and that he had assisted in including defendant's photographs in the arrays. The court also admitted photographs taken by police which showed that, while the license plates were on the car, its engine and seats were missing when it was discovered.

A.

Defendant argues that the court's rulings admitting the described evidence violated CRE 404(b). We disagree.

CRE 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts offered either to prove a person's character or that the person acted in conformity therewith. People v. Hansen, 708 P.2d 468 (Colo.App.1985). However, that rule expressly permits the admission of such evidence for other relevant purposes, such as proof of opportunity and identity of the perpetrator of an offense. Such evidence is also admissible if it tends to explain the events leading up to the commission of a crime or the circumstances which led to a perpetrator's identification and arrest. People v. Abeyta, 728 P.2d 327 (Colo.App.1986).

The trial court is vested with broad discretion in determining the relevance of evidence, and its decision will not be reversed on appeal unless an abuse of that discretion is shown. People v. Lowe, 660 P.2d 1261 (Colo.1983).

Here, the principal issue at trial was the identity of the perpetrator of the offenses. The challenged evidence was offered by the prosecution to establish links in the chain of circumstances that led to the identification of defendant as the perpetrator. Discovery of defendant's car near the scene of the crime tended to establish a nexus between defendant and that location. Evidence of the theft report established defendant's acknowledgement of his actual possession of the car shortly before the time when the crimes occurred. Evidence of the vehicle's dismantled condition tended to explain and corroborate other evidence placing defendant in the vicinity of the crimes prior to their commission.

Accordingly, we conclude that the trial court did not abuse its discretion in finding the challenged evidence relevant to defendant's identification.

B.

We also reject defendant's argument that the prejudicial effect of this evidence outweighed its probative value.

In reviewing a trial court's decision that the probative value of admitted evidence outweighs its potential prejudicial effect, we must assume the maximum probative value that a reasonable juror might accord such evidence, and the minimum prejudicial effect reasonably to be expected. People v. Lowe, supra.

Here, the trial court's suppression order barring any reference to police suspicion about "false reporting," "auto stripping," or "insurance scams," ameliorated the prejudicial impact that the evidence might otherwise have had. Under these circumstances, any inference of collateral misconduct which might have been drawn from the evidence was not sufficiently strong to require exclusion of the relevant evidence. See People v. Perez, 656 P.2d 44 (Colo.App.1982).

III.

Defendant next contends that the court's denial of his motion for mistrial based upon alleged prosecutorial misconduct requires reversal. We disagree.

In her initial report of the assault, the victim told police that her attacker had one tattoo on his chest and a second one on his upper right arm. In subsequent testimony at various pretrial hearings, the victim either gave similar descriptions of the tattoos or acknowledged, without qualification, her prior statements concerning them.

During direct examination at trial, the prosecuting attorney elicited testimony from the victim about her present recollection of her assault and her previous statements to police. He then asked: "As you look back now, do you remember seeing a tattoo on the upper right arm?" Upon receiving a negative response, h...