2019 COA 32
Colo. Ct. App.2019Background
- Defendant Wenston Williams robbed an Uber driver at knifepoint; convicted by jury of aggravated robbery and second-degree assault.
- Post-conviction, the trial court adjudicated Williams a habitual criminal based on three prior felony convictions (one first-degree assault; two distributions of a Schedule II controlled substance) and imposed a 64-year sentence.
- At trial, the victim identified Williams from a six-photo array; Williams moved to suppress the pretrial photographic identification as impermissibly suggestive.
- Williams moved for two continuances: (1) to retain counsel of choice on the first day of trial, and (2) to allow completion of fingerprint testing he argued could be exculpatory.
- Two prior distribution charges were filed in separate cases but were permissively joined for trial and later resolved by guilty pleas the day before trial; the People relied on those convictions as separate predicates in habitual criminal proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of pretrial photo ID | Photo array was proper; identification reliable | Array was impermissibly suggestive (age, clothing, tattoos, small set) | Court upheld ID; array not impermissibly suggestive and not likely to cause irreparable misidentification |
| Continuance to retain counsel of choice | Denial justified by timing, prior delays, prejudice to prosecution and witness | Denial violated Sixth Amendment right to counsel of choice | Court did not abuse discretion; balanced factors supported denial |
| Continuance to complete fingerprint testing | No duty to test on speculative basis; prosecution lacked exculpatory comparison | Denial deprived defendant of potential exculpatory evidence | Court did not abuse discretion; prosecution had no obligation to generate speculative tests |
| Habitual criminal enhancement ("charges separately brought and tried") | Two prior distribution convictions were separately filed and could have been tried separately; permissive joinder doesn't negate separateness | Because the two distribution cases were joined for trial and would have been tried together but for guilty pleas, they should count as one conviction for habitual purposes | Trial court erred: joined-for-trial convictions that would have been tried together cannot be treated as separately tried; habitual adjudication reversed and sentence vacated |
Key Cases Cited
- Gimmy v. People, 645 P.2d 262 (Colo. 1982) (predicate convictions count only if charges were separately brought and would have been tried separately but for guilty pleas)
- Bernal v. People, 44 P.3d 184 (Colo. 2002) (two-step test for impermissibly suggestive photographic identifications)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (totality-of-the-circumstances reliability test for eyewitness ID)
- Simmons v. United States, 390 U.S. 377 (1968) (standard on setting aside convictions based on suggestive pretrial identification)
- Brown v. Dist. Court, 197 Colo. 219, 591 P.2d 99 (Colo. 1979) (consolidation/joinder discretion and its effect on habitual-criminal analysis)