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holding "that the discrepancy between the physical description given and the characteristics of defendant — 5'10" to 6' and 150 to 160 pounds v. 5'7" and 140 pounds — is not so great as to mandate a finding of inaccuracy"
Summary of this case from State v. StampleyOpinion
No. 94CA0953
October 10, 1996 As Modified on Denial of Rehearing January 23, 1996 Certiorari Granted October 20, 1997.
Sternberg, C.J., would GRANT petition of Defendant-Appellant.
Appeal from the District Court of Jefferson County, Honorable Ruthanne N. Polidori, Judge, No. 93CR749
JUDGMENT AFFIRMED
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Daniel J. O'Brien, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Julie Iskenderian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of first degree burglary, one count of crime of violence, and one count of aggravated robbery. We affirm.
In August 1992, a family was robbed at gunpoint in their home. During the two months following the robbery, each victim was shown three separate "photo lineups," each of which consisted of a group of six photographs of men who roughly matched the victims' description of the person who had robbed them.
After viewing the first set of photographs, each of the victims stated that one of the photographed persons resembled the robber. In the second photographic array, the victims did not recognize any of the persons pictured. Defendant's photograph was not included in either array.
In October 1992, the victims were shown the third photographic lineup, which contained defendant's picture. After certain events more fully described below, one victim identified defendant's photograph as being most likely that of the robber.
At defendant's preliminary hearing, that victim again identified defendant as the person who had robbed him and his family.
At trial, the jury found defendant guilty of two counts of first degree burglary and one count of aggravated robbery; however, it initially returned a verdict finding defendant not guilty on the crime of violence count. The court polled the jurors and each affirmed the verdict as his or her own. Thereafter, the trial court accepted the verdict, discharged the jury, and proceeded to discuss sentencing with counsel.
A few minutes later, as the sentencing discussions continued, the bailiff informed the court that some of the jurors had told her that they filled out one of the verdict forms wrong. The trial court then ordered the bailiff to bring the jurors back to the courtroom.
After the jury was reassembled the trial court polled the jurors again, over defense counsel's objection. This time, each juror stated that the "not guilty" finding on the crime of violence count was in error. Accordingly, the trial court ordered the jurors again to deliberate and to amend their findings as they saw fit. After a short period of deliberation, the jurors returned and announced that they had changed their finding on the crime of violence count from "not guilty" to "guilty." The trial court again polled the jurors and, finding unanimous agreement on each count, accepted the verdicts and discharged the jury.
I.
Defendant contends that one victim's photographic array identification and his in-court identification were impermissibly suggestive, and that the trial court erred in refusing to suppress them. We disagree.
In considering a claim that the identification procedures used violated due process, the court must decide whether the resulting identification is reliable under the totality of the circumstances surrounding the confrontation. People v. Walker, 666 P.2d 113 (Colo. 1983).
Five factors should be considered: "1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; (5) the time which has elapsed between the crime and the confrontation." People v. Walker, supra, at 119.
Here, the trial court found that the victim "was in close contact. In other words, within the — the confines of the same room with the perpetrator of the crime for approximately 40 minutes out of the total time which exceeded an hour that the perpetrator was in the residence." And, the victim's opportunities to observe were much greater than those of the other two victims.
We view these findings as indicative of the court's determination that the first two factors of the Walker test were supported by adequate evidence showing reliability.
As to the last three parts of the test, a brief chronology of events is necessary.
The robbery occurred on August 9 and 10, 1992. The victim described the perpetrator as "5'10" to 6', 160 to 180 pounds, Spanish-American male, light complexion, black hair slicked back and with a goatee and mustache." On August 19, the victim assisted a police sketch artist in preparing a composite drawing of the perpetrator.
On September 1 and 9, 1992, the victim was shown two photographic lineups. At the first lineup, the victim indicated that "there was a possible identification with photo number 3"; at the second lineup the victim did not select any photograph. Defendant's photograph was not included in either array.
Then, on October 21, the victim was shown a third photographic lineup. He stated that he "wasn't comfortable in picking anybody out." The detective put the array away and advised the victim that "at this time I felt we had someone in custody that had committed the crime to his residence and his family." The victim then asked if the person was in any of the photographs he'd been shown and the detective replied that he could not tell him that. The victim asked to see the lineup again and, after looking it over, said, "If it's any one of them it's photo number 2." That photograph was of the defendant.
The trial court made no specific finding regarding the accuracy of the victim's prior description of the perpetrator. However, we note that, based on this victim's description, 10 days after the crime a police sketch artist prepared a composite drawing which bears a resemblance to the lineup photograph of defendant. The discrepancy between the physical description given and the characteristics of defendant — 5'10" to 6' and 150 to 160 pounds v. 5'7" and 140 pounds — is not so great as to mandate a finding of inaccuracy.
The victim's level of certainty at the time of the confrontation, is less than positive, to be sure.
And, it is undisputed that the time elapsed between the crime and the final photographic lineup was approximately two and one-half months.
The trial court concluded that, because no improper police conduct had occurred, the photographic identification should not be suppressed. It noted: "It's very clear that there was nothing that was being motivated at this point in time by the police officer." This determination is supported by competent evidence in the record. Thus, the ruling will not be set aside on appeal. Young v. People, 175 Colo. 461, 488 P.2d 567 (1971).
The detective's comments at the third photographic lineup gave no indication to the victim that a particular photograph should be selected. His statement that the police had a suspect in jail gave no hint as to which, if any, of the persons in the photographs might be the suspect. Indeed, in our view, the detective properly declined to tell the victim whether the jailed suspect's photo was in the array.
Contrary to defendant's contention, the prosecution does not have a per se burden to show that in-court identification testimony is not the product of an unduly suggestive procedure. People v. Monroe, 925 P.2d 767 (Colo. 1996). The trial court's finding, weighing the totality of circumstances in light of the factors in People v. Walker, supra, is well supported and will not be disturbed. Therefore, we find no error in the trial court's conclusion that the victim's in-court identification of defendant was proper and that defendant's objections go to the weight of this victim's identification, not to its admissibility. People v. Thorpe, 641 P.2d 935 (Colo. 1982). As the United States Supreme Court noted in Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 155 (1977): "We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."
II.
Defendant next contends that, because the two counts of first degree burglary were supported by identical evidence, the trial court erred in determining that the prosecution was not required to elect between them. We disagree.
Here, one count alleged that defendant was armed with a deadly weapon at the time of the burglary while the other alleged that he menaced the victims during the course of the burglary.
Section 18-1-408(3), C.R.S. (1986 Repl. Vol. 8B) requires that, if two or more charged offenses arise from the same criminal episode and are supported by identical evidence, the trial court is required to impose concurrent sentences. People v. Tivis, 727 P.2d 392 (Colo.App. 1986).
Under § 18-4-202(1), C.R.S. (1986 Repl. Vol. 8B):
A person commits first degree burglary if he knowingly enters or remains unlawfully in a building or occupied structure with intent to commit therein a crime . . . and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, he . . . menaces any person, or . . . is armed with . . . a deadly weapon.
Menacing consists of the knowing use of threats or physical action to place or attempt to place another person in fear of imminent serious bodily injury. See § 18-3-206, C.R.S. (1986 Repl. Vol. 8B). "However, there is no requirement in [the first degree burglary statute] that a victim be placed in fear of imminent serious bodily injury by a deadly weapon . . . ." People v. Sisneros, 44 Colo. App. 65, 67, 606 P.2d 1317, 1318-19 (1980). Thus, each of the two counts of first degree burglary here consisted of different elements which were proved by evidence of different conduct.
Moreover, we note there were multiple victims in this case, further supporting the charging of defendant on separate counts of first degree burglary.
Finally, even if we were to conclude that the two counts were supported by identical evidence, defendant received concurrent sentences. Thus, the requirements of § 18-1-408(3) were met. See People v. DeBoer, 829 P.2d 447 (Colo.App. 1991).
III.
Defendant next contends that the trial court erred in recalling the jury to re-deliberate the crime of violence charge after it had previously returned a not guilty verdict on that charge. We disagree.
In Kreiser v. People, 199 Colo. 20, 604 P.2d 27 (1979), the trial court was informed, well after it discharged the jury, that there was an error in one of the verdict forms. It then ordered the jurors brought back into the courtroom for further proceedings.
The trial court polled all of the jurors and, upon finding that the verdict form did not correctly reflect their verdict, instructed the jury foreman to alter the language of the verdict form to correct the error.
In reversing the judgment of the court of appeals which had affirmed the defendant's conviction under the amended verdict, our supreme court held that:
[O]nce a jury has been discharged, and the members of the jury have dispersed, the court cannot reconstitute the jury and poll the individual jurors to determine their intent in rendering a verdict . . . .
Kreiser v. People, supra, 199 Colo. at 22, 604 P.2d at 28.
In its analysis, the Kreiser court noted that the general rule in criminal cases would have prevented the jury from being reconstituted after the jurors have dispersed, "leaving the courtroom and the control of the judge." Kreiser v. People, supra, 199 Colo. at 22, 604 P.2d at 29.
However, the Kreiser court did not apply this type of per se rule. Rather, the court noted that the basis of the general rule is that: "[O]nce the jurors have separated and departed from the courtroom and from the control of the judge, with the opportunity to mingle and discuss the case with others . . . the jury's functions are at an end." Kreiser v. People, supra, 199 Colo. at 23, 604 P.2d at 29. Applying a similar rationale, the court concluded:
In the instant case . . . the judge had discharged the jury which then left the courtroom and separated, going their individual ways. On recall, nine of the jurors were found in the courthouse parking lot. The other three jurors had left the courthouse premises and were located at their respective homes. It is thus clear that the jurors had the opportunity of mingling with the public and discussing the case.
Kreiser v. People, supra, 199 Colo. at 23, 406 P.2d at 29.
In accordance with this view, it has been noted that:
The mere announcement of the discharge of the jurors does not preclude recalling them if they have not yet dispersed and mingled with bystanders.
4 C. Torcia, Wharton's Criminal Procedure § 578 (12th ed. 1976).
The Kreiser court did not find many of the factors relied on in other cases to be important in determining whether it was proper to reassemble a jury after it had been discharged.
First, the court did not distinguish between errors of form and errors of substance in a jury's original verdict as a basis for determining whether the verdict could be amended after the jury's discharge. See 4 C. Torcia, supra, § 578 (noting that, under one view, jurors could be recalled to amend their verdict when the defect was merely one of "form" but could not do so when it was a "matter of substance."). But see Schoolfield v. Brunton, 20 Colo. 139, 36 P. 1103 (1894) (stating that, because the trial court could have corrected an error in the verdict, it was not error to require that the jury be reassembled to correct the error).
Second, it implicitly declined to designate a specific threshold, such as the courtroom door, as the point beyond which jurors could not go, after being discharged, without losing their ability to act as jurors. See Hayes v. State, 44 Ala. App. 499, 214 So.2d 708 (1968) (holding that once jurors had left the presence of the court, and were no longer within its immediate control, they could not be recalled to amend verdict). But cf. People v. Lopez, 867 P.2d 52 (Colo.App. 1993) (on the day after jury had rendered verdict in guilt phase of trial and had retired for the evening, the trial court erred in not permitting jurors to reconsider a verdict which was in doubt before proceeding with later phase of trial).
Finally, it did not find particular importance in the fact that the jurors were separated from each other during the period between discharge and reassembly. See Webster v. State, 652 S.W.2d 781 (Tex.Crim. 1983); see generally Anderson v. State, 231 Miss. 352, 95 So.2d 465 (1957); cf. People v. Davis, 183 Colo. 228, 516 P.2d 120 (1973). But see People v. Hernandez, 163 Cal.App.3d 645, 209 Cal.Rptr. 809 (1985).
Instead, in applying the relevant legal principles, the Kreiser court focused on the jurors' opportunity to discuss the case with non-jurors after being discharged. And, despite the lack of evidence that the jurors in that case had engaged in such discussions, the court nevertheless determined that, under those circumstances, it was unclear that the jurors had had the "clear" opportunity to discuss the case with others. Some jurors had gone home, where friends and family members naturally would have been expected to inquire about the case. See Kreiser v. People, supra.
Here, the jurors were out of the presence of the court for only a few minutes. Ten of them had remained with the bailiff. Of the two who had left the group, one was found in the courthouse and the other had just walked out of the courthouse.
Nothing in the record supports an inference that these jurors had a clear opportunity to speak about the case with each other or with anyone else before being called back into the courtroom.
Moreover, the record shows that the guilty verdict language and signature block on the verdict form in question were opposite from those on the other three verdict forms. Thus, the error could well be characterized as an inadvertent one of a clerical nature.
Because the facts here were not sufficient to support a presumption that the jury was open to the influence of others after discharge, the burden was on defendant to show that the jurors had actually communicated with others or were influenced to change their verdict by their contact with others. See Masters v. State, 344 So.2d 616 (Fla.App. 1977); see also Sierra Foods v. Williams, 107 Nev. 574, 816 P.2d 466 (1991); State v. Myers, 459 S.E.2d 304 (S.C. 1995).
However, defendant did not request that the jurors be questioned about their contact with others during the brief period after discharge. Thus, in these circumstances, we find no error in the trial court's decision to reassemble the jury for further deliberation and to enter judgment on the amended verdict. See Masters v. State, supra; see also Kreiser v. People, supra; Commonwealth v. Brown, 367 Mass. 24, 323 N.E.2d 902 (1975); see generally Annot., Criminal Law: Propriety of Reassembling Jury to Amend, Correct, Clarify, or Otherwise Change Verdict After Jury has Been Discharged, or has Reached or Sealed Its Verdict and Separated, 14 A.L.R. 5th 89 at § 7 (1993).
IV.
In light of this disposition, defendant's other contentions of error are moot, and we need not address them.
The judgment is affirmed.
JUDGE DAVIDSON concurs.
CHIEF JUDGE STERNBERG dissents.