People v. Webster, PLAINTIFF-APPELLEE

• Decision Date: 15 October 1998
• Docket Number: PLAINTIFF-APPELLEE,No. 97CA0872,DEFENDANT-APPELLANT,97CA0872
• Parties: (Colo.App. 1998) THE PEOPLE OF THE STATE OF COLORADO,, v. RAMONDE E. WEBSTER, . I
• Court: Colorado Court of Appeals

Page 836

987 P.2d 836 (Colo.App. 1998)

THE PEOPLE OF THE STATE OF COLORADO, PLAINTIFF-APPELLEE, v. RAMONDE E. WEBSTER, DEFENDANT-APPELLANT.

No. 97CA0872

Colorado Court of Appeals, Div. I.

October 15, 1998

As Modified on Denial of Rehearing December 10, 1998

Certiorari Denied November 8, 1999^*

Appeal from the District Court of the City and County of Denver Honorable Warren O. Martin, Judge No. 96CR4812 [Copyrighted Material Omitted] Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Conrad R. Lattes, Special Assistant Attorney General Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Anthony Viorst, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

The opinion of the court was delivered by: Opinion by Judge Plank

Defendant, Ramonde Webster, appeals from a judgment of conviction on jury verdicts finding him guilty of attempted first degree murder and first degree assault. He also challenges the 32-year sentence imposed following the conviction. We affirm the judgment of conviction, reverse the sentence, and remand for resentencing.

At about 2:00 a.m., the victim was walking home in Denver. A vehicle stopped near him, and the driver and the victim spoke briefly to each other. The victim did not recognize the driver, and attempted to walk away. The driver then fired approximately six shots from a handgun at the victim, striking him three times. The gunshot wounds were not serious except that one bullet lodged behind the victim's ear.

Approximately one month later, the victim saw the assailant and gave his vehicle's license plate number to the police. The police identified three possible suspects based on their prior contacts with persons in that vehicle, and prepared three photo line-ups. The victim immediately selected the defendant as his assailant in the photo line-up, and identified him again at trial.

I.

A.

Defendant first contends that trial court erred by not granting his motion to suppress the victim's identification during the police photo line-up, a procedure that defendant asserts was unnecessarily suggestive and denied him a fair trial. We disagree.

A photo line-up identification procedure unconstitutionally denies the defendant a fair trial when it is unnecessarily suggestive and is conducive to a misidentification. The procedure must be evaluated in light of the "totality of the surrounding circumstances." People v. Horne, 619 P.2d 53, 56 (Colo. 1980).

The police do not have to provide a photo line-up containing only "exact replicas" of the defendant's picture; all that is required is that "the photos are matched by race, approximate age, facial hair, and a number of other characteristics." People v. Borrego, 668 P.2d 21, 23 (Colo. App. 1983).

Defendant contends that the photo line-up procedure here was unnecessarily suggestive because, in the line-up containing his photograph along with five others, his was the only one with a yellow background. Defendant also contends that his photograph unnecessarily stands out because it is the only one in which the subject has a menacing expression, the only one depicting the subject's hair in "geri curls," and the only one in which light is shining directly into the subject's face. Finally, defendant contends that one of the line-ups shows only juveniles despite the victim's description of the assailant as an adult man.

Prior to viewing the photographs, the detective read to the victim a standard admonition advising that facial hair and hairstyles are easily changed, that complexion is not always depicted accurately in the photographs, and that differences in the style and type of photographs should be ignored. The admonition also warned that the perpetrator may not be in any of the photographs and that the victim should not feel pressured to identify anyone.

Our review of the photo line-ups reveals that all of the photographs are of black males of varying complexions and appearances. The majority of the photographs have a neutral blue background, three others appear to show the same background color as defendant's photograph, one shows a neutral green background, and in one the background is washed out and the color is indeterminate. The eighteen photographs show a wide variety of hair styles and the defendant's is not particularly remarkable in the group. At least three of the photographs have the light shining into the subjects' faces. Finally, the defendant's expression is not particularly menacing and does not stand out from the group.

Our review of the transcript of the suppression hearing also reveals nothing to show that the procedure used to present the photo line-ups to the victim in any way suggested a particular suspect. In short, we do not perceive that the totality of the circumstances surrounding the presentation of the photo line-ups was suggestive at all, and we agree with the trial court in concluding that the victim's identification of defendant was reliable and need not be suppressed. See People v. Horne, supra.

B.

Defendant further contends that the detective's comments following the victim's photo line-up identification unfairly suggested that the victim had selected the "correct" suspect. We disagree with this contention, as well.

Our review of the record reveals only that the detective may have told the victim and his mother that defendant was presently in jail on domestic violence or possibly other charges. We agree with the trial court that there was no connection between defendant's arrest on unrelated charges and the victim's identification, and we perceive no error in the trial court's decision not to suppress the victim's identification.

C.

Because we have concluded that the photographic line-up procedure was not unnecessarily suggestive, we need not reach defendant's contention that the prosecution must show by clear and convincing evidence an independent basis for the victim's in-court identification. See People v. Monroe, 925 P.2d 767 (Colo. 1996).

II.

Defendant next contends that the trial court erred by permitting testimony of an unfairly prejudicial statement made by defendant to a police detective. We disagree.

Defendant, after being advised of his rights and waiving them, told the detective that he had been involved in gang activity for ten years, and that he was well known in the neighborhood. The prosecution sought the introduction of the hearsay statement to prove that defendant shot the victim because he was wearing blue, the color of a rival gang.

Evidence of the defendant's affiliation with a gang may be admitted when it is relevant to proving a motive for the crime. People v. Moya, 899 P.2d 212 (Colo. App. 1995). CRE 403 requires that relevant evidence should nevertheless be excluded if its probative value is substantially outweighed by its prejudicial effect. Merritt v. People, 842 P.2d 162 (Colo. 1993).

We review the trial court's admission of allegedly prejudicial evidence for abuse of discretion. To constitute an abuse of discretion, the opponent must show that the trial court's decision was manifestly arbitrary, unreasonable, or unfair. In reviewing the trial court's determination, we must assume the maximum probative value and the minimum reasonable prejudicial effect. People v. Eggert, 923 P.2d 230 (Colo. App. 1995).

Here, the evidence of defendant's gang activities was limited to the one statement made by defendant to the detective, and that statement was offered in support of the prosecution's theory that the shooting was motivated by gang rivalry. We are not persuaded that allowing testimony of defendant's hearsay statement, assuming its maximum probative value and its minimum prejudicial effect, was manifestly arbitrary, unreasonable, or unfair, and we perceive no abuse of discretion. See People v. Eggert, supra.

III.

Defendant contends that the trial court erred by denying his motion for a continuance or, alternatively, to conduct a portion of the trial at the home of a witness because the witness was temporarily unable to testify in court. Defendant also challenges the trial court's decision to exclude the unavailable witness' written statement. We disagree with each of these contentions.

A.

The witness gave a statement to police shortly after the shooting incident. In that statement, she alleged that approximately half an hour or more before the incident, a young Hispanic man repeatedly drove a sport utility vehicle, of a different make, model, and color than the one described by the victim, by her home in the vicinity of the shooting. The witness also concluded, however, that she would be unable to identify the driver if she saw him again because she was not wearing her glasses when she saw him. The witness later heard shots fired but did not see the shooting. Defense counsel told the trial court that the witness' testimony would be nothing more than what was contained in her statement.

At trial, the witness was unavailable to testify because she was confined to bed by her doctor's orders. The trial court, finding that the proffered testimony was irrelevant and that the written statement was hearsay, denied defendant's motions to admit the witness' written statement into evidence, to conduct a portion of the trial at her home, or to continue the trial until she was available to testify.

The trial court has discretion to exclude irrelevant evidence or evidence that is cumulative or would result in unreasonable delay or waste of time. CRE 402; CRE 403. We will not reverse a trial court's exclusion of evidence absent an abuse of its discretion. To be an abuse of discretion, the trial court's ruling must be "manifestly arbitrary, unreasonable, or unfair." People v. McCoy, 944 P.2d 584, 587 (Colo. App. 1996).

Our review of the witness' statement shows that her testimony would have been relevant because of its tendency to...