2018 COA 6
Colo. Ct. App.2018Background
- Defendant Jose L. Palacios convicted of felony murder, aggravated robbery, and related offenses after a drug deal in a garage ended with the victim shot by an accomplice.
- The victim's girlfriend (eyewitness) was shown three sequential photographic arrays over several days; she selected different photos in positions 1, 3, and 5 across those arrays and ultimately identified Palacios when his photo appeared in position 3 of the third array.
- Palacios moved to suppress the out-of-court and any in-court identification, arguing the final array was unduly suggestive because his photo occupied the same position (no. 3) as a filler previously selected by the witness.
- At trial the prosecution used a full-size mock-up of the garage as a demonstrative aid during two witnesses’ testimony and a smaller portion of it during closing; the mock-up was slightly smaller (about 24 inches) than the actual garage.
- Palacios argued the mock-up was misleading and unfairly prejudicial because of its size/inaccuracy; the court admitted the demonstratives and instructed the jury that the aids were not evidence and to rely on original evidence if discrepancies existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third photo array was unduly suggestive | People: officer presentation did not suggest a particular photo; multiple prior selections in different positions show no special significance to position 3 | Palacios: placing his photo in position 3 after the witness previously picked a filler in position 3 impermissibly suggested that photo | Held: Not unduly suggestive; mere placement in a position, without other suggestive conduct, is insufficient; suppression denied |
| Whether the mock-up demonstrative aids were admissible | People: demonstratives were authenticated, relevant, fair and accurate representations and not unduly prejudicial; slight size difference justified by courtroom constraints | Palacios: mock-up was too small/misleading and its inaccuracy likely confused jury and prejudiced defendant | Held: Admissible; mock-up was substantially similar, any minor discrepancy was non-prejudicial, jury had actual photographs and limiting instructions; no abuse of discretion |
Key Cases Cited
- Bernal v. People, 44 P.3d 184 (Colo. 2002) (two-step test for assessing identification procedures)
- People v. Borghesi, 66 P.3d 93 (Colo. 2003) (standard of review for mixed questions of law and fact in identification challenges)
- People v. Wilford, 111 P.3d 512 (Colo. App. 2004) (placement of defendant's photo in array position not inherently suggestive)
- People v. Duncan, 754 P.2d 796 (Colo. App. 1988) (successive arrays with same photo position not necessarily suggestive)
- People v. Loyd, 751 P.2d 1015 (Colo. App. 1988) (identification admissibility—risk of misidentification standard)
- People v. Cauley, 32 P.3d 602 (Colo. App. 2001) (authentication requirement for demonstrative evidence)
- People v. Richardson, 58 P.3d 1039 (Colo. App. 2002) (trial court's discretion in allowing demonstrative aids)
- People v. Hogan, 114 P.3d 42 (Colo. App. 2004) (manner of array presentation and non-suggestiveness)
- Hagos v. People, 250 P.3d 596 (Colo. App. 2010) (abuse of discretion standard)
- Clark v. Cantrell, 529 S.E.2d 528 (S.C. 2000) (demonstrative aid need only be substantially similar, not exact)
- Smiley v. State, 111 A.3d 43 (Md. 2015) (presentation manner can create suggestiveness)
- Thamer v. State, 777 P.2d 432 (Utah 1989) (words/actions of officers must convey disinterest when presenting photos)
- Holland v. United States, 209 F.2d 516 (10th Cir. 1954) (demonstratives as argumentative aids for jury to accept or reject)