*1 No. 79SA494 Naranjo Roy v. Rojorlo of Colorado of the State 1106) (612 P.2d rehearing July denied and as modified Opinion modified May 1980. Decided *2 MacFarlane, General, Richard F. Attorney Hennessey, Deputy, J. D. Ford, General, Attorney Assistant Lynne J. Solicitor Mary Mullarkey, General, Section, for Litigation plaintiff-appellee. Defender, Denman, Walta, State Public Steven H.
J. Gregory for Deputy, defendant-appellant.
En Banc. of the Court. delivered the opinion DUBOFSKY JUSTICE for first- defendant, conviction Naranjo, appeals Rojorlo Roy The the defend- assault. We reverse sexual first-degree degree kidnapping his conviction and affirm kidnapping conviction ant’s assault. as in the same incidents arose from the defendant’s conviction 1, 612 P.2d case, Sammy Naranjo, companion after morning detail there. The are out in The facts set car where the billfold near found the defendant’s the police road, defendant and and arrested the a remote mountain parked town. The nearby mountain at Pinewood Springs, one of his companions case, as the this Rojorlo the defendant in Roy victim identified car attack the victim’s friend. get first out man of statements were severed because trials of the three suspects the de- A two of them which others. implicated made by assault. guilty fendant and forty-four for kidnapping sentenced to life imprisonment He was *3 be served the sentences to in for sexual the fifty years penitentiary concurrently. to the of the evidence sufficiency the
On defendant appeal, questions the contends that because first-degree conviction. He kidnapping a support of first-degree was an essential element of the sexual assault commission case, doctrine merger of the the theory under the kidnapping prosecution’s the to double jeopardy to of prevent subjection must be applied II, XIV, V and Const. Art. of Const. amend. arid Colo. in violation U.S. first-degree of the challenges constitutionality Sec. 18. The defendant the does not include a rea element. He sexual assault statute because it mens of trial court orders and sentence for also seeks consideration various sexual assault. in v. People
Our Colo. opinions Bridges, 199 v. the issues (1980), Naranjo, P.2d and determine People supra, the was charge The evidence in of support kidnapping here. therefore, de in and we reverse the Naranjo, identical to the evidence of law the conviction for As a matter kidnapping.1 fendant’s in case is sufficient to conviction for sec this a presented support evidence 18-3-302, version in (current Section C.R.S. 1973 ond-degree kidnapping. was jury was and the 8). Since there sufficient evidence Repl. merger Bridges, supra, application People of doctrine when the We discussed in v. the the charges first-degree kidnapping the prosecution of victim and the submission assault through application physical to physical used establish the of force or violence is the concession doctrine; instead, merger first-degree kidnapping. Bridges, apply con In we we declined to the excluding narrowly, requirement from that strued the statute’s concession through application physical physical or of victim the of force violence. definition a submission first-degree kidnapping Bridges charge support in to of under We the evidence insufficient 18-3-301, (now second-degree instructed on we remand the case to the kidnapping, trial second-degree to enter judgment sentence kidnapping. People supra. Naranjo, instructions on assault were this case identical relevant to those parts supra, and our determination that the instructions mens rea supplied necessary element controls.
The defendant
argues that
in-court identification of him by
the victim and
friend should
been
her
have
the trial court on
suppressed by
First,
grounds.
three
he
a photo
contends that
identification
presented
the witnesses a few
before
days
suggestive.
trial
Al
impermissibly
though the
showing
made no comment while
prosecutors
of
photographs
witnesses,
the defendant and one of his
to the
companions
there were only
two
and both were
We
photographs
mugshots.
assume
of
purpose
this
that the
opinion
photographic showing was impermissibly suggestive.
Second,
the defendant maintains
of
showing
an independent
source for the identification made
each
by
witness was insufficient. An in
dependent source is tested
by applying
following criteria: The opportu
at the
nity
time of
crime to
degree
view
perpetrator,
atten
witness,
tion of the
the extent
which
the prior
fits the
description
defendant,
the level
indicated
certainty
the witness at the
by
pre-trial
identification, and the length of time between the
crime
the trial.
Jones,
The standard for when a suggestive pre-trial iden tification procedure prevents in-court identification of the defendant is if the pre-trial identification “was so impermissibly suggestive as to give rise to a substantial very likelihood irreparable misidentification.” *4 States, Simmons United 377, 384, 967, 971, 390 U.S. 88 S.Ct. 1247, L.Ed.2d The the establishing have burden of by clear and convincing evidence that the in-court identification arises from an in source and is not dependent suggestive the direct of the product pre-trial identification procedure. Huguley People, 195 Colo. P.2d 746 (1978).
Here, trial the court ruled that both witnesses’ in-court identifi cations of the defendant were and made independent specific on findings the factors which determine independence. Huguley, supra.
The trial that both witnesses had face-to-face encounters with the defendant under conditions with to enough light see him clearly. Although the had victim not identified the from defendant photographs incident, shortly shown her after the the court found that the failure to was and identify ambiguous give that it did not rise to misidentification the defendant at trial. The court concluded that the of the testimony the and not on incident was based on recollection independent witnesses by sub- findings All these were supported the identification. photographic evidence. stantial that the photo- defendant’s claim record does not the support to de- notification the before trial without prior shown to witnesses
graphs
order
record
court order. No such
appears
fense counsel violated a
court properly
The trial
hearing.
or in
of the
transcript
suppression
witnesses.
the defendant
both
by
the in-court identification of
permitted
his
co-
trial was severed from those
The defendant’s
the other
against
admissible only
defendants to avoid
evidence
prejudicial
reference to the other defend
defendants.2 The trial court also ruled that
since the
confusing
ants
last name should be avoided as
by
prejudicial
argues
last
were the
defendant here
that the
names of all three
same. The
during
severance was nullified
three references to the other defendants
by
the last name. Both times the
trial. The first two references were use of
court.
defendant
sustained
the trial
objected
objection
by
was
a
Bureau of Inves-
The third reference was
Colorado
testimony by
tigation
about
hair from one of the other defendants
employee
pubic
was found on
victim. The
court denied the defendant’s re-
which
trial
relevant to the
for a mistrial because the
hair evidence was
quest
pubic
under
charged
18-3-402(2),
(1978 Repl.
crime
be a
that
sexual assault will
class
8).
provides
This subsection
is
if
commission of the sexual assault the actor
“(a)
physi-
felony
or abetted
one or more other
that an-
cally
by
persons.” Testimony
aided
establish that
other individual
in the sexual assault tends to
participated
defendant
the commission of his crime.
was aided
abetted in
Thus,
valid
the defendant was that the witness used
only
objection by
trial court. The reference to the
“Naranjo”
by
name
forbidden
trial,
name,
the third
a
not
long
only
sufficiently prejudicial
gross
denial of a mistrial a
abuse of
See
make the
discretion.
Sexton,
ing and on sexual assault when the defendant was aided or complicity others3 could lead to by given together abetted because instructions disagree. an inconsistent verdict. We to the guidance
The two instructions accurate provided jury. class 2 The defendant was with fel charged C.R.S. ony by 18-3-402(2), if the defendant is assisted others. Section (1978 The evidence the court’s instruction supported charges. *5 2 The [3] Section other 18-3-402(2)(a), defendants had C.R.S. 1973 confessed to most in (now of the acts [1978] Repl. Vol. which were the basis for the criminal
16 evidence,
on on sexual assualt.4 Based aggravated also jury might have found that the defendant assisted others in the commission of the crime whether or not he instruction, himself committed sexual assault. Under the complicity of could convict the defendant assault if it deter- 18-1-603, (now in section mined he met the C.R.S. 1973 requirements that in 8).5 1978 An instruction on be when Repl. complicity may two or See more in a McGregor engage crime. People, people jointly 309, (1971). P.2d 490 287 an instruction complicity provided alternative ground for conviciton. comment, challenges the trial when
Finally court’s impos- conviction, ing a life sentence for that the de- fendant be eligible not considered for “until parole he has served a minimum of twenty rather than the ten years years.”6 usual defend- taking ant maintains that parole account eligibility judicial into is not function and infringes on executive improperly authority determining in need parole. We not reach this consideration because we have vacated the conviction and for sentence first-degree kidnapping.
We judgment affirm the of the trial as- sault, we reverse the judgment the trial court on first-degree kid- The cause is napping. remanded further for consistent with proceedings this opinion.
JUSTICES LEE and ROVIRA concur in and dissent in part part. JUSTICE LEE concurring in in part dissenting part.
I dissent that respectfully portion which re- majority opinion verses judgment of conviction kidnapping. My reasons therefor are set in forth Naranjo, 200 Colo. 612 P.2d (1980). 1099
JUSTICE ROVIRA in concurring part dissenting part: in I concur and dissent in for part the reasons set forth in part Colo. P.2d 1099 advises the other one years. degree sexual assault. Vol. 8, 1979 fense “A The trial court Section 18-1-603, C.R.S. 1973 Section person serving if, with the is 17-1-207(3), a life sentence legally Supp.)], person intent treated the accountable which was C.R.S. 1973 planning would promote aggravating as (now not principal or effect at or [current be committing facilitate eligible 1978 Repl. factor version time the as an behavior of another at commission of the offense, parole offense.” essential element of the offense of first- 8): defendant was consideration until he 17-2-207, constituting convicted, he had aids, abets, a criminal of- provided (1978 served ten or