Sandoval v. People, 24826

• Decision Date: 04 December 1972
• Docket Number: No. 24826,24826
• Citation: 503 P.2d 1020,180 Colo. 180
• Parties: Domingo SANDOVAL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1020

503 P.2d 1020

180 Colo. 180

Domingo SANDOVAL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 24826.

Supreme Court of Colorado, En Banc.

Dec. 4, 1972.

Joe Clarence Medina, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Eugene C. Cavaliere, Asst. Atty. Gen., Denver, for defendant in error.

ERICKSON, Justice.

The defendant, Domingo Sandoval, was charged and convicted by a jury of the crimes of aggravated robbery and conspiracy to commit aggravated robbery. He was sentenced to the penitentiary, and thereafter, his conviction was affirmed on writ of error. Sandoval v. People, 162 Colo. 416, 426 P.2d 968 (1967). See the companion case, Duran v. People, 162 Colo. 419, 427 P.2d 318 (1967), for a factual summary. Subsequently, the defendant filed a motion for vacation of the judgment under Crim.P. 35(b), together with an alternative motion for a new trial on the grounds of newly discovered evidence.

After a full hearing, the trial court denied both of the defendant's motions for post-conviction relief. Now the defendant seeks review in this Court alleging that the trial court should have granted his motions. Both motions were predicated upon the same evidence. We affirm the trial court's denial of the defendant's motions.

I.

The issues before us concern in-court identification testimony and center on a police lineup and subsequent events which preceded eyewitness testimony of identity of the defendant. The defendant contends that his conviction cannot stand because the police suggested to eyewitnesses that the defendant was one of the robbers. The defendant further alleges that the prosecution suppressed evidence relating to the lineup which was favorable to him. He also urges us to reverse because an eyewitness to the robbery identified someone else as a person who could have committed the crime. The record does not buttress the defendant's factual contentions.

Prior to the time that testimony was permitted, the court properly held an In camera hearing and explored the identification issue in depth. It determined that the identification issue should be left for the jury with proper instructions. In the course of the defendant's trial in this case, competent trial counsel developed the frailties which existed in the identification testimony, and with proper instructions, the matter was submitted to the jury. The court considered the totality of the circumstances and found that the People had sustained their burden:

'It is the burden of the People to show by clear and convincing evidence that any suggestion was not present and that the identification was the product of the victim's own recollection. Stewart v. People, Colo., 487 P.2d 371; Martinez v. People, 174 Colo. 125, 482 P.2d 375.' Constantine v. People, Colo., 495 P.2d 208 (1972).

At an In camera hearing, the court must determine in the first instance whether a witness's in-court identification testimony bears an unconstitutional taint. Edmisten v. People, Colo., 490 P.2d 58 (1971). See Fresquez v. People, Colo., 497 P.2d 1246 (1972); Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969); Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969). See also, Espinoza v. People, Colo., 497 P.2d 994 (1972); Martinez v. People, 174 Colo. 125, 482 P.2d 375 (1971). After this threshold is crossed, the question of identification goes to the credibility of the witness and must necessarily be resolved by the jury as it was in this case. See Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971); Neighbors v. People, 171 Colo. 349, 467 P.2d 804 (1970).

II.

By way of a further attack on the identification testimony, the defendant contends that the prosecution failed to correct false testimony which was relevant to his identification. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The record does not substantiate the defendant's claim.

The weaknesses in the identification testimony were fully developed by competent counsel, both at the In camera hearing and before the jury. Neither Richtel's nor Romero's testimony fits within the holding in Napue v. Illinois, Supra. The only error pointed to is that Richtel testified that he was unable to make an identification in the lineup when police officer's notes show that Richtel replied, when questioned by a police officer, that a person other than the defendant could have been a possible participant in the crime.

III.

The defendant also claims that the police officer's notes relating to the lineup constituted favorable evidence which was wrongfully suppressed under the principles announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We do not deem Brady v. Maryland, Supra, to be in point. The Brady case, and its progeny, stand...