v.

• Decision Date: 18 March 2019
• Docket Number: Supreme Court Case No. 16SC75
• Citation: 2019 CO 19
• Parties: Petitioner: James Joseph Garner, v. Respondent: The People of the State of Colorado.
• Court: Colorado Supreme Court

2019 CO 19

Petitioner: James Joseph Garner, v. Respondent: The People of the State of Colorado.

Supreme Court Case No. 16SC75

Supreme Court of the State of Colorado

March 18, 2019

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE

Eyewitnesses—Identification Evidence and Procedures—In-Court Identification.

The supreme court reviews whether due process or Colorado rules of evidence required the exclusion of victim-witnesses' in-court identifications of the defendant, where each witness had failed to identify the defendant in a photographic array before trial and almost three years had elapsed between the crime and the confrontations. The supreme court holds that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to prescreen the identification for reliability. Because the defendant alleges no impropriety regarding the pretrial photographic arrays, and the record reveals nothing unusually suggestive about the circumstances of the witnesses' in-court identifications, the supreme court holds that the in-court identifications did not violate due process. The court further holds that the defendant's evidentiary arguments are unpreserved and that the trial court's admission of the identifications was not plain error under CRE 403, 602, or 701. Accordingly, the supreme court affirms the judgment of the court of appeals.

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 12CA2540

Judgment Affirmed

en banc

Attorneys for Petitioner:

Megan A. Ring, Public Defender

Inga K. Nelson, Deputy Public Defender

Denver, Colorado

Attorneys for Respondent:

Philip J. Weiser, Attorney General

Jillian J. Price, Assistant Attorney General

Denver, Colorado

Attorneys for Amicus Curiae The American Psychological Association:

Wilmer Cutler Pickering Hale and Dorr LLP

Michael J.P. Hazel

Denver, Colorado

Wilmer Cutler Pickering Hale and Dorr LLP

David W. Ogden

Daniel S. Volchok

Kevin M. Lamb

Washington, D.C.

Attorneys for Amicus Curiae The Innocence Project:

Johnson & Klein, PLLC

Eric K. Klein

Amy D. Trenary

Boulder, Colorado

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

JUSTICE HART dissents, and JUSTICE HOOD and JUSTICE GABRIEL join in the dissent.

¶1 Eyewitness identifications are extremely powerful evidence. "[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'" Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (quoting Elizabeth F. Loftus, Eyewitness Testimony 19 (1979)). But such evidence is also fallible. Indeed, "the annals of criminal law are rife with instances of mistaken identification." United States v. Wade, 388 U.S. 218, 228 (1967). Precisely because identification testimony is so persuasive, a mistaken identification can lead to a wrongful conviction.

¶2 Criminal defendants therefore have access to certain safeguards at trial to test the reliability of identification evidence, including the right to counsel and the opportunity to cross-examine prosecution witnesses. The U.S. Supreme Court has also recognized "a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime." Perry v. New Hampshire, 565 U.S. 228, 232 (2012). Specifically, in Neil v. Biggers, the Court held that where the State seeks either to admit evidence of a resulting out-of-court identification or to elicit a live identification from the witness at trial, due process requires the trial court to assess whether, under the totality of the circumstances, the identification is nevertheless reliable. 409 U.S. 188, 198-99 (1972).

¶3 Here, the People charged James Garner for a bar shooting that injured three brothers. The People's case hinged on the brothers' live identifications of Garner at trial almost three years later, though none of them could identify Garner as the shooter in anearlier photographic array. The core question before us is whether, in these circumstances, Biggers required the trial court to assess the reliability of the brothers' first-time in-court identifications before allowing them in front of the jury.

¶4 Garner argues that particularly given the brothers' inability to identify him before trial, their in-court identifications were the product of impermissibly suggestive circumstances, and the trial court should have suppressed them under both Biggers and the Colorado Rules of Evidence. The People respond that where an in-court identification does not stem from a constitutionally defective out-of-court identification procedure, the court need not screen the in-court identification for reliability. Instead, any questions of reliability are for the jury to weigh.

¶5 We hold that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to assess the identification for reliability under Biggers. Because Garner alleges no impropriety regarding the pretrial photographic arrays, and the record reveals nothing unusually suggestive about the circumstances of the brothers' in-court identifications, we hold that the in-court identifications did not violate due process. We further hold that Garner's evidentiary arguments are unpreserved and that the trial court's admission of the identifications was not plain error under CRE 403, 602, or 701. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶6 Near closing time at a Denver bar, two groups were celebrating birthdays. Christian Adame-Diaz was celebrating with his friend and his two brothers, Roberto and Arturo. The defendant, James Garner, was celebrating with his girlfriend and a few others. A fight broke out between the two groups. Someone pulled out a gun and fired six shots, injuring all three brothers. Following the shooting, Garner's group fled. Police recovered from the scene a pair of glasses splattered with Garner's blood, and a cell phone belonging to his girlfriend.

¶7 The People charged Garner with attempted murder of each brother; first-degree assault of Christian and Arturo; possession of a weapon by a previous offender;¹ and crime of violence sentence enhancers. The defense maintained that although Garner was at the bar on the night of the shooting, he was not the gunman.

¶8 During their investigation, police presented each brother with a photographic array that included Garner. Although Christian was able to identify Garner as someone present at the bar the night of the shooting, none of the brothers identified Garner as the gunman.

¶9 Despite failing to identify Garner in the pretrial photo arrays, all three brothers positively identified him almost three years later at trial as the shooter. Roberto testified first. When asked whether he saw "anybody . . . in the courtroom . . . who shot at [him]on that particular evening," Roberto pointed at Garner and identified the color of his shirt. Roberto said the shooter's face was something he would never forget. The following morning, defense counsel moved to strike Roberto's in-court identification of Garner "as an impermissible one-on-one show[-]up identification, not comporting with the factors that are required." The trial court took the issue under advisement.

¶10 Arturo was the next brother to testify. When asked how long he had stayed at the bar that night, Arturo spontaneously identified Garner, saying, "[U]ntil this individual here fired at us. I don't want to see this guy I remember with the gun." Arturo said he was "a hundred percent sure that it was him." Defense counsel objected to "the unduly suggestive nature of th[e] one-on-one identification," but did not specify what made the in-court identification suggestive. The trial court overruled the objection.

¶11 Christian likewise spontaneously identified Garner in the courtroom. While testifying about the events leading up to the shooting, Christian pointed at Garner and said, "[H]im, James that's here, pushed [Roberto] against the chairs. When he fell on top of the chairs and tables, he took out his gun and started shooting my brother." Christian was positive that Garner was the gunman. Defense counsel again objected "as to a one-on-one prejudicial show-up lineup," and the trial court again overruled the objection.

¶12 Throughout trial, defense counsel questioned the reliability of the brothers' identification testimony. In her opening statement, counsel asked the jury to note how the brothers' descriptions of the shooter initially conflicted but began to cohere over time:

[T]he . . . brothers . . . give different descriptions of what they think the man looked like. . . . None of them describe a person with facial hair. Yet later they meet with the district attorneys and the detective at the bar, andsuddenly all of their descriptions kind of start to line up a little bit more because now they are all describing a guy with facial hair.

¶13 Counsel highlighted these and many other discrepancies in the brothers' descriptions of the shooter through cross-examination, eliciting differences in the type, color, and detail of the shooter's clothing, and whether he had facial hair or wore glasses.

¶14 Defense counsel...