People v. Palacios
No. 15CA1395
Colorado Court of Appeals
January 25, 2018
2018COA6
Jеfferson County District Court No. 13CR2977. Honorable Todd L. Vriesman, Judge. Honorable Christopher J. Munch, Judge.
SUMMARY
January 25, 2018
2018COA6
No. 15CA1395 People v. Palacios — Criminal Law — Fifth Amendment — Pre-Trial Identification; Evidence — Demonstrative Evidence — Admissibility
In this criminal case, a division of the court of appeals first concludes that the police‘s placement оf a suspect‘s photograph in a particular position in a photo array, after the witness had selected a photograph in that position from a different photo array, does not render the identification procedure unduly suggestive. Accordingly, the division affirms the district court‘s denial of the defendant‘s motion to suppress the identification evidence.
Next, the division concludes that the admission of any demonstrative aid, including the full-size mock-up of the crime scene at issue in this case, is governed by the four-part test articulated in People v. Douglas, 2016 COA 59. To be admissible
Because the demonstrative aid satisfied the test for admissibility, the division concludes that the district court did not abuse its discretion in allowing the prosecution to use the demonstrative aid during certain witness testimony and closing argument.
Division VI
Opinion by JUDGE HARRIS
Terry and Plank*, JJ., concur
Announced January 25, 2018
Cynthia H. Coffman, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of
¶ 2 On appeal, Palacios challenges his convictions on two grounds. First, he argues that the court erred in failing to suppress a witness‘s identification as the product of an impermissibly suggestive identification procedure. Second, he argues that the court erred in allowing the prosecution to use a full-size reconstructed model or “mock-up” of the crime scene during two prosecution witnesses’ testimony аnd again during closing argument. We reject both arguments and therefore affirm.
I. Motion to Suppress Identification
¶ 3 We begin with some factual background relevant to the motion to suppress.
¶ 4 The murder occurred in a detached garage, which the victim used as his residence. Two witnesses were present in the garage at the time of the crime: the victim‘s marijuana supplier and the victim‘s girlfriend.
¶ 6 Two days later, police showed the girlfriend another photo array, in an effort to identify the true second perpetrator. The array included a photograph of a suspect — not Palacios — in position no. 3, and five filler photographs. The girlfriend selected a filler phоtograph in position no. 5 as a photo of the second perpetrator.
¶ 7 Police soon learned that Palacios was likely the second perpetrator. So they showed the girlfriend a third photo array, this time with a photograph of Palacios in position no. 3, and five filler
¶ 8 Palacios filed a motion to suppress the girlfriend‘s out-of-court identification and to exclude any subsequent in-court identification. He contended that the police had “induced” the girlfriend‘s identification of Palacios by “putting the suspect in the same position as the filler that had already been selected.” The court denied the motion, reasoning that because the girlfriend had previously selected photos in position nos. 1, 3, and 5, simply placing Palacios‘s photo in position no. 3 did not render the array impermissibly suggestive.
¶ 9 On appeal, Palacios reasserts his argument that the final photo array was impermissibly suggestive because his photo was placed in position no. 3, after the girlfriend had selected a filler photograph in position no. 3 from the initial array.
¶ 10 The constitutionality of pretrial identification procedures is a mixed question of law and fact. People v. Borghesi, 66 P.3d 93, 104 (Colo. 2003). While we defer to the district court‘s findings of fact, we may give different weight to those facts and reach a different conclusion. Id.
¶ 12 We look to various factors to determine whether a pretrial photographic identification procedure wаs impermissibly suggestive, including the size of the photo array, the manner of its presentation by the officers, and the details of the photographs themselves. Id. Palacios does not challenge the size of the array or the details of the photographs themselves. Our inquiry, then, is limited to whether the officers’ presentation of the photo array rendered the identification prоcedure unduly suggestive.
¶ 13 In general, the manner of an officer‘s presentation will result in an unduly suggestive identification procedure when “the procedure used to present the [array] . . . suggest[s] a particular suspect.” People v. Wilford, 111 P.3d 512, 515 (Colo. App. 2004). Thus, an improper manner of presenting the array would include
¶ 14 But the mere placement of a defendant‘s photo in a particular position, without more, does not render the identification procedure impermissibly suggestive. See, e.g., Wilford, 111 P.3d at 514 (holding that no “one position in a six-photo array is suggestive” and concluding that officer‘s placement of defendant‘s photo in
¶ 15 That the girlfriend had earlier selected a photo in position no. 3 cannot raise the specter of suggestiveness in light of her additional selections of photos in position nos. 1 and 5. Clearly, position no. 3 did not have special suggestive properties, as Palacios‘s argument would apply with equal force if the officer had placed his photo in either position no. 1 or 5. Accordingly, we are confident that the mere placement of Palacios‘s photo in position no. 3 did not “interject an unnecessary risk of misidentification.” People v. Loyd, 751 P.2d 1015, 1017 (Colo. App. 1988).
¶ 16 Because Palacios has failed to carry his burden to show that the photo array was unduly suggestive, we conclude (without further inquiry into the reliability of the identification) that the court properly denied the motion to suppress the girlfriend‘s identification. See People v. Singley, 2015 COA 78M, ¶ 14 (If the defendant fails to meet his burden at the first step of the analysis,
II. Demonstrative Evidence
¶ 17 At trial, the prosecution used a full-size mock-up of the garage as a demonstrative aid2 during the testimony of a sheriff‘s department investigator and the eyewitness drug supplier. The prosecution also referred to a smaller version of the mock-up during closing argument. Palacios says the court erred in permitting the prosecution to use these demonstrative aids because their size was inaccurate and the inaccuracy rendered the mock-ups misleading and therefore unfairly prejudicial.
¶ 18 We review the district court‘s decision to allow a party to use a dеmonstrative aid for an abuse of discretion. See People v. Richardson, 58 P.3d 1039, 1045 (Colo. App. 2002). A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Hagos, 250 P.3d 596, 608 (Colo. App. 2010). In assessing whether a trial court‘s decision is
¶ 19 Demonstrative aids can take various forms, including diagrams, maps, computer animations, or, as relevant here, models or mock-ups. See Black‘s Law Dictionary 675 (10th ed. 2014). Regardless of the particular form, demonstrative aids generally serve the same purpose: to illustrate or clarify a witness‘s testimony. In other words, the primary purpose of a demonstrative aid is to “illustrate other admitted evidence and thus to render it more comprehensible to the trier of fact.” 2 George E. Dix et al., McCormick on Evidence § 214 (Kenneth S. Broun ed., 6th ed. 2006) (McCormick); see also Intermill v. Heumesser, 154 Colo. 496, 501, 391 P.2d 684, 686 (1964) (“[D]emonstrative aids should be encouraged since they give the jury and the court a clear
¶ 20 To be used for this purpose, the demonstrative aid must (1) be authentic, meaning the proponent must demonstrate “that the evidence is what it is claimed to be,” People v. Cauley, 32 P.3d 602, 607 (Colo. App. 2001); (2) be relevant, meaning that it will assist the trier of fact in understanding other testimonial and documentary evidence, People v. Douglas, 2016 COA 59, ¶ 22; see also McCormick § 217 (if a demonstrative aid “assists the trier‘s understanding, it is relevant“); (3) be a “fair and accurate representation of the evidence to which it relates,” Douglas, ¶ 22 (quoting Cauley, 32 P.3d at 607); and (4) not be unduly prejudicial, meaning its probative value must not be substantially outweighed by its danger for unfair prejudice, id.; see also Richardson, 58 P.3d at 1045.
¶ 21 The People say this four-part test governs only the use or admissibility of a computer animation, and that other demonstrative aids or exhibits, like a model or mock-up, may be used or admitted upon a mere showing that the model is a “reasonably accurate” version of what it purports to depict. But the
¶ 22 For his part, Pаlacios argues only that the mock-up of the garage was too small to satisfy the “fair and accurate” prong of the test. He insists that the full-size mock-up, which the prosecutor used during the witnesses’ testimony, did not show the west side of the bed where the girlfriend was hiding during the shooting. This deficiency made the demonstrative aid “misleading and confusing,” he says.
¶ 23 As an initial matter, Palacios‘s argument overstates the evidence. The full-size mock-up of the garage did depict the area next to the bed. The sheriff‘s investigator testified that the recreated scene showed the “approximate[] . . . amount of space” between the bed and the western wall of the garage. And, during this part of the testimony, defense counsel acknowledged that she was standing in the part of the moсk-up at issue by asking “and right now . . . I am standing on the — in the area on the western side of the bed in the demonstrative, correct?” to which the investigator responded, “That is correct.”
¶ 25 But this minor discrepancy does not render the demonstrative aid so inaccurate that its use represents an abuse of the district court‘s discretion.
¶ 26 For one thing, as Palacios concedes, a demonstrative aid need not be “exact[ly]” identical in every detail to the actual scene it depicts, Douglas, ¶ 45 (quoting Clark v. Cantrell, 529 S.E.2d 528, 537 (S.C. 2000)); it need only be “substantially similar,” id. The sheriff‘s investigator testified that the full-size model was a “fair and accurate representation of the scene,” and the second witness testified that, though it was “a little smaller,” the model “roughly and accurately” depicted the garage. In our view, the record demonstrates that the mock-up was substantially similаr to the actual garage.
¶ 28 We cannot say that the court‘s decision to allow the use of the substantially similar mock-up in the larger courtroom exceeded the bounds of the rationally available choices. See Churchill, ¶ 74.
¶ 29 Our conclusion is bolstered by the absence of any argument that the twenty-four-inch discrepancy was prejudicial. Palacios does not explain how the jury would have been misled by the discrepancy or even the nature оf the confusion he says likely resulted from the use of the mock-up. “[I]t is not this court‘s function to speculate as to what a party‘s argument might be.”
¶ 30 Even if we were inclined to hypothesize about potential prejudice, we would be unable to identify any. The sheriff‘s investigator who provided the information for the demonstrative aid had personal knowledge of the scene and was subject to cross-examination regarding the accuracy of the mock-up. See Richardson, 58 P.3d at 1046. The prosecution introduced into evidence dozens of photographs of the scene, including at least five enlargements of the interior of the garage. Thе jury therefore had access to images of the actual crime scene and could determine for itself the accuracy and helpfulness of the mock-up. Indeed, the district court cautioned the jury that the mock-up was simply a demonstrative aid and instructed that “if, in your view, there is some discrepancy between a demonstrative [aid] and more original evidence, you‘ll go with the original evidence and not with a mere demonstration.” See Douglas, ¶ 30 (stating that courts should give
¶ 31 For the same reasons, we conclude that the district court did not abuse its discretion in allowing the government to use only a portion of the full-size mock-up as a demonstrative aid during closing argument. Palacios says that the smaller version encompassed only “25 percent” of the original demonstrative aid and was laid out “in a different direction from” the mock-up used during testimony. But defense counsel acknowledged that the smaller mock-up was accurate, as far as it went:
To [the prosecutor‘s] credit, he‘s marked hashtags on here, and it looks like those are the measurements that [the investigator] gave him. So the measurements, I guess, are precise to the wall. I even nitpicked the 9 inches from the edge of there. So I think the measuremеnts are close, but I think this is entirely misleading doing it this way.
¶ 33 Accordingly, we percеive no error in the district court‘s decision to allow the prosecution to use the demonstrative aids.
III. Conclusion
¶ 34 The judgment of conviction is affirmed.
JUDGE TERRY and JUDGE PLANK concur.