People v. Theus-Roberts

• Citation: 378 P.3d 750,2015 COA 32
• Decision Date: 26 March 2015
• Docket Number: Court of Appeals No. 12CA0013
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Emmanuel C. THEUS–ROBERTS, Defendant–Appellant.
• Court: Court of Appeals of Colorado

378 P.3d 750

2015 COA 32

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Emmanuel C. THEUS–ROBERTS, Defendant–Appellant.

Court of Appeals No. 12CA0013

Colorado Court of Appeals, Div. VII.

Announced March 26, 2015

Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE VOGT^*

¶ 1 Defendant, Emmanuel C. Theus–Roberts, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder, first degree assault, aggravated robbery, second degree assault, and two crime of violence sentence enhancers. We affirm.

I. Background

¶ 2 According to the prosecution's evidence at trial, Theus–Roberts and another man, Josiah Parrish, got into a cab and told the driver to take them to a designated location. When they got there, Parrish got out. Theus–Roberts had the driver take him to several other locations before returning to the initial destination approximately an hour later, running up a $90 fare.

¶ 3 Theus–Roberts gave the driver $80 in cash and told him, “I'll go inside my apartment, and I'll bring the rest of the money.” Theus–Roberts came back a few minutes later, told the driver that he did not have the rest of the money but that “my friend is going to come and give you the money,” and walked away. After a few more minutes, a man—identified by the driver at trial as Theus–Roberts—came to the driver's window, aimed a gun at the driver, demanded and took the $80, and shot the driver in the chest.

¶ 4 The shooter fled and the driver called 911. When the police arrived, the driver described the shooter and indicated the direction in which he had fled. Police officers found Theus–Roberts hiding in a nearby garage and arrested him. After Theus–Roberts was in custody, the police brought an eyewitness to the crime, R.M., to the place where he was being held. R.M. identified him as the man she had seen near the cab.

¶ 5 Theus–Robert was convicted of the offenses set forth above and was sentenced to a prison term totaling eighty years.

II. R.M.'s Identification

¶ 6 Theus–Roberts contends that the trial court erred by denying his suppression motion and allowing R.M. to give testimony that was the product of an unduly suggestive out-of-court showup. We disagree.

A. Applicable Law

¶ 7 A trial court's ruling on pretrial identification procedures presents a mixed question of fact and law. We defer to that court's findings of historical fact, but we may give different weight to those facts and reach a different conclusion in light of the legal standard. Bernal v. People , 44 P.3d 184, 190 (Colo. 2002)

; People v. Whittiker , 181 P.3d 264, 272 (Colo. App. 2006).

¶ 8 One-on-one showup identifications are not per se violative of due process, although the procedure is viewed with disfavor because of its strong potential for unnecessary suggestiveness. People v. Mascarenas, 666 P.2d 101, 109 (Colo. 1983)

. A one-on-one showup identification may be permissible and reasonable in situations where immediate identification would facilitate an ongoing criminal investigation. Id. The reasonableness of the showup procedure, however, must also be measured against the potential for irreparable misidentification. Id .

¶ 9 The test for determining whether an identification following a particular showup violates a defendant's due process rights is whether, under the totality of the circumstances, the identification was unreliable because the confrontation was unnecessarily and irreparably suggestive. Id.

; see

People v. Trujillo, 75 P.3d 1133, 1136–37 (Colo. App. 2003), abrogation on other grounds recognized by

People v. Johnson, 121 P.3d 285 (Colo. App. 2005). The following factors are relevant in making this determination: (1) the opportunity of the witness to view the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of any prior description of the suspect; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Trujillo, 75 P.3d at 1136.

B. Analysis

¶ 10 R.M. lived in a house across the street from where the shooting occurred. The police officer who interviewed her and conducted the showup testified at the suppression hearing.

¶ 11 According to the officer, R.M. told him she had heard “a loud sound that sounded like a firecracker” and had looked out her window. She saw a “black male wearing dark clothing and carrying a black bag next to the taxi cab.” The man “walked away from the scene at a quick pace southbound through the alley.”

¶ 12 Theus–Roberts had been apprehended, and the officer decided to conduct a showup for identification purposes. Before taking R.M. to the ambulance where Theus–Roberts was being held, the officer showed R.M. a black bag that Theus–Roberts had dropped as he fled. R.M. identified it as belonging to the person she had seen near the cab. On the way to the ambulance, the officer told R.M. that “we may or may not have a suspect in custody” and that he “would like her to tell [him] whether or not that was the person she saw near the taxi cab.” The officer parked forty to fifty feet away from the ambulance and shined his spotlight on Theus–Roberts, who was wearing a white shirt and had been taken out of the ambulance by two other officers. When he was brought out of the ambulance, R.M. spontaneously said “yes, that's him.” At that point, approximately one hour had elapsed since the shooting.

¶ 13 In a subsequent written statement, R.M. stated that the man she had seen was dark-skinned, but that he could have been black or Hispanic.

¶ 14 Theus–Roberts filed a motion to suppress R.M.'s identification. In addition to the suggestiveness of the confrontation, defense counsel cited the brevity of R.M.'s initial opportunity to view the suspect, the vagueness of her description, her inability to see his face, and the discrepancy between her description and the clothing Theus–Roberts was wearing.

¶ 15 After reviewing the applicable legal standards and determining that there was a need for an immediate identification in this case, the trial court concluded that, under the totality of the circumstances and upon consideration of the relevant factors, R.M.'s identification was not the product of an impermissibly suggestive procedure:

[R.M.] had an opportunity to [view] the alleged criminal at the time she was at her window. Saw him walking away from the cab. Described him as to race and granted she didn't see his face. And I don't think that's significant, although it may be an interesting subject for cross-examination. I don't think it is controlling.

She was paying attention to what she saw. It was late at night. There was unusual noise outside. She saw someone walking away rapidly from a cab that was sitting still in the middle of the street. Her prior description of the ... suspect was essentially consistent with that that she made thereafter.

Her level of certainty was very certain. She was absolutely positive it was the same person and that, I think, is significant. And I think it is positive that her positive indication was made immediately without any questioning. And the time elapsed between the crime and the ID, an hour, which I don't find to be unusual or inappropriate.

So for all those reasons based on the totality of the circumstances, I believe the identification in this case was not constitutionally suspect or impermissibly suggestive. I'm going to deny the motion to suppress.

¶ 16 The trial court applied the correct standard in deciding the issue before it; its findings are supported by the testimony at the hearing; and we agree that, under the totality of the circumstances, the identification was not unreliable. We are not persuaded by Theus–Roberts' contentions on appeal that the procedures accompanying the showup and the deficiencies in R.M.'s identification of him require a contrary conclusion. The record does not show that anything the police did or failed to do led R.M. to make an unreliable identification. Further, at trial, Theus–Roberts cross-examined R.M. extensively about facts that could call into question the reliability of her identification, thus allowing the jury to determine how much to credit that identification. See People v. Monroe, 925 P.2d 767, 772 (Colo. 1996)

(“Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) )).

III. Eyewitness Identification Testimony Instructions

¶ 17 Theus–Roberts tendered three jury instructions that, in accordance with the reasoning in United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)

, would have provided guidance on evaluating the reliability of eyewitness identification testimony. The trial court did not err in refusing to give the instructions.

A. Applicable Law

¶ 18 We review jury instructions de novo to determine whether the instructions as a whole accurately inform the jury of the governing law. People v. Vecellio, 2012 COA 40, ¶ 30, 292 P.3d 1004

. If they do, the trial court has substantial discretion in formulating the instructions and deciding whether additional instructions are required. See id. ; People v. Renfro, 117 P.3d 43, 48 (Colo. App. 2004).

¶ 19 The Colorado Supreme Court has consistently held that it is not error for a trial court to refuse tendered Telfaire

instructions when the jury receives a general instruction on the credibility of witnesses. See

Campbell v. People, 814 P.2d 1, 5 n.8 (Colo. 1991) (collecting cases), abrogated on other grounds by

People v. Shreck, 22 P.3d 68 (Colo. 2001).

B. Analysis

¶ 20 Theus–Roberts asked the trial court to give three Telfaire

instructions to assist the jurors in evaluating the...