23CA0091 Peo v Le 03-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0091 Douglas County District Court No. 18CR296 Honorable Theresa Slade, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Peter Viet Le,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025
Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Springer and Steinberg, P.C., Taylor Ivy, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Peter Viet Le, appeals the judgment of conviction
entered on jury verdicts finding him guilty of first degree assault
with a deadly weapon, felony menacing, and two crime of violence
sentence enhancers. We affirm.
I. Background
¶2 We draw the following factual background from the record and
evidence that the jury heard at trial.
¶3 One evening in March of 2018, police were dispatched to a
bowling alley after receiving multiple reports that a person had been
shot and that the shooter had fled the scene. Upon arrival, the
responding officers found the victim with gunshot wounds to his
chest and left buttock. Despite these injuries, the victim was
conscious and ultimately survived the shooting.
¶4 The victim recounted what had happened multiple times,
including on the night of the shooting itself and the next day while
recovering in the hospital. He told the police that he had been out
bowling with several of his friends, and shortly before closing time
he went to return his bowling shoes. After leaving the shoes on the
1 counter, he accidentally bumped shoulders with another person1
but continued to walk back to his bowling lane without apologizing.
¶5 The victim stated that while he was walking back, he heard
the shooter say something to him. After the victim turned around
and asked the shooter what he had just said, the shooter pulled out
a gun and shot the victim in the chest. As the victim started to run
away, the shooter fired another shot, hitting the victim in the left
buttock.
¶6 The victim described the shooter as a male, “about 5’10[”]
[tall], Vietnamese, wearing a black hoodie, glasses, and having
facial hair (goatee).” Five days after the incident, the police showed
the victim a six-photo array in the hospital. The victim positively
identified Le as the shooter by picking his photo from the array.
¶7 The prosecution charged Le with attempted second degree
murder, first degree assault with a deadly weapon, felony menacing,
and two counts of crime of violence sentence enhancers for using a
deadly weapon and causing serious bodily injury in connection with
1 The victim told the police the day after the shooting that he had
bumped shoulders with Le. At trial, however, the victim testified that he had “brushed shoulders with a female.”
2 the crimes. The jury hung on the attempted second degree murder
charge2 but found Le guilty of the remaining offenses. The trial
court sentenced him to twenty years for the first degree assault and
three years for the felony menacing, to be served consecutively in
the custody of the Department of Corrections.
II. Analysis
¶8 On appeal, Le contends that the trial court reversibly erred by
(1) denying his motion to suppress the victim’s out-of-court photo
identification of Le after determining that the identification,
although based on an impermissibly suggestive photo array, was
sufficiently reliable; and (2) not continuing his trial as a remedy for
the prosecutor’s discovery violation under Crim. P. 16. We consider
these contentions in turn.
A. Reliability of the Out-of-Court Photo Identification
¶9 Le contends that the trial court erred by not suppressing the
victim’s out-of-court photo identification because the identification
wasn’t sufficiently reliable to overcome the suggestiveness of the
photo array. We disagree.
2 The prosecution later dismissed this charge.
3 1. Additional Background
¶ 10 Before trial, Le moved to suppress the victim’s out-of-court
photo identification and any subsequent in-person identification
based on the photo array on the ground that the array was
impermissibly suggestive. After an evidentiary hearing, the trial
court determined that the photo lineup was unduly suggestive
because although three photos showed facial hair, only Le’s photo
showed a man with a goatee, which was a feature that matched the
victim’s description of the shooter.
¶ 11 The court then held a second evidentiary hearing to determine
whether the victim’s out-of-court identification of Le was reliable
despite the suggestive nature of the photo array. Applying the
five-factor test from Bernal v. People, 44 P.3d 184, 192 (Colo. 2002),
the court concluded that the identification was reliable, and
therefore, admissible.
¶ 12 The victim then identified Le as his shooter at trial.
2. Applicable Law and Standard of Review
¶ 13 “Generally, a witness’s in-court identification cannot be based
on an earlier, unreliable out-of-court identification.” People v.
McCants, 2021 COA 138, ¶ 16. A defendant is denied due process
4 of law if the out-of-court identification is so impermissibly
suggestive and unreliable as to give rise to a very substantial
likelihood of irreparable misidentification. People v. Jaquez, 2018
COA 76, ¶ 49. Thus, “the results of an impermissibly suggestive
identification procedure [are inadmissible] unless the totality of the
circumstances demonstrates that the procedure was sufficiently
reliable despite its suggestiveness.” McCants, ¶ 16.
¶ 14 To determine whether an out-of-court identification based on a
photo array is admissible at trial, a court must engage in a two-part
analysis. First, a defendant has the burden to prove that the photo
array was impermissibly suggestive. Bernal, 44 P.3d at 191. If the
defendant fails to meet this burden, then no further inquiry is
necessary. Id.
¶ 15 But if the defendant proves that the photo array was
impermissibly suggestive, then the burden shifts to the prosecution
to show that the witness’s identification was nonetheless reliable
under the totality of the circumstances. Id. In considering the
totality of the circumstances, courts consider the following factors:
(1) the opportunity of the witness to view the defendant at the time
of the crime; (2) the witness’s degree of attention; (3) the accuracy of
5 the witness’s prior description of the defendant; (4) the level of
certainty demonstrated by the witness at the time of the
confrontation; and (5) the length of time between the confrontation
and the crime. Id.; McCants, ¶ 17. “As long as the totality of the
circumstances does not indicate a very substantial likelihood of
irreparable misidentification, no constitutional impediment to the
admission of the identification testimony exists.” Bernal, 44 P.3d at
191.
¶ 16 The constitutionality of an out-of-court identification
procedure presents a mixed question of fact and law; we defer to the
trial court’s findings of fact unless they are clearly erroneous and
unsupported by the record, but we review de novo its conclusions of
law. McCants, ¶ 20. However, while the trial court’s factual
findings are entitled to deference, we may weigh those facts
differently and reach a different conclusion than the court. Bernal,
44 P.3d at 190. Because Le preserved this issue in the trial court,
we review for constitutional harmless error if the court erred,
reversing unless we can conclude that any error was harmless
beyond a reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11; see
also People v. Martinez, 2015 COA 37, ¶ 10.
6 3. The Trial Court Didn’t Err by Determining that the Out-of-Court Photo Identification Was Sufficiently Reliable
¶ 17 As an initial matter, the parties don’t dispute that the photo
array used here was impermissibly suggestive. Instead, the parties’
dispute revolves around the reliability of the out-of-court photo
identification that the victim made five days after the shooting. In
concluding that the identification was reliable under the Bernal test,
the trial court made the following findings:
• The victim had the opportunity to view the shooter at the
time of the incident because “[t]he lights in the bowling
alley were on,” the victim “was ‘leaning in’ to the shooter,”
his “view of the shooter was unobstructed,” and “they
were facing each other.”
• Though the victim had “watched the shooter pull the gun
from his waistband,” that happened late in the
encounter. Before the gun was drawn, the victim was
trying to hear what the shooter had said.
• The victim was able to provide a detailed description of
the shooter shortly after the incident.
7 • The victim’s description matched the shooter’s
appearance in the still photos that video surveillance
cameras captured on the night of the incident.
• The victim’s description of the shooter had remained
“fairly consistent” throughout the proceedings.
• While the victim “appear[ed] to be under the influence of
pain medication” at the time of the photo lineup, “he was
coherent,” “thinking clearly,” and was ninety percent sure
that Le was the shooter.
• The police administered the photo lineup only five days
after the shooting.
¶ 18 In making the above findings of fact, the trial court primarily
relied on the victim’s testimony at the second suppression hearing.
Le doesn’t dispute that the court’s findings are supported by the
record, and thus, must be afforded deference by us. See McCants,
¶ 20. However, he argues that we should nonetheless reach a
different conclusion than the trial court based on those findings
because the court failed to consider certain evidence when
evaluating the first four prongs of Bernal’s reliability test. We’re not
persuaded.
8 ¶ 19 First, Le contends that in addressing whether the victim had
an opportunity to view the shooter at the time of the incident, the
trial court didn’t consider the victim’s testimony that he was
“standing eight feet away from the shooter,” nor did it acknowledge
“just how brief” their encounter was, “[twenty] to [thirty] seconds at
most.” But contrary to Le’s argument, the victim’s testimony about
the length of his encounter with the shooter and the distance
between the two of them doesn’t weigh against the reliability of the
identification. The fact that the victim faced his assailant for
around twenty seconds from eight feet away provided an ample
opportunity for observation, and it certainly wasn’t clear error for
the trial court to reach this conclusion based on the evidence
presented. That is especially true given that the victim also testified
that the area where the shooting occurred was well-lit, his view was
unobstructed, and he had made eye contact with the shooter. See
People v. Campbell, 2018 COA 5, ¶ 58 (upholding an identification
as reliable when a witness saw the suspect for “one or two seconds
in a well-lit area while [they] were about ten feet away from one
another”); see also Archuleta v. Kerby, 864 F.2d 709, 712 (10th Cir.
1989) (stating that a witness had a sufficient opportunity to observe
9 the defendant when the witness “had two brief, unobstructed views”
of the defendant from “thirty to forty feet away”).
¶ 20 Second, Le asserts that in assessing the degree of the victim’s
attention, the trial court (1) failed to consider that the victim “had
consumed three beers and felt tipsy when he encountered the
shooter” and (2) “disregarded the evidence indicating that [the
victim’s] attention during the brief encounter would have been
focused on the gun instead of the shooter.”
¶ 21 But while the victim told the police that he had consumed
three beers and felt tipsy shortly before he was shot, he also stated
that he was “definitely not drunk.” Regardless, evidence regarding
the victim’s level of intoxication alone is insufficient to invalidate
the reliability of his identification. See Jennings v. State, 626
S.E.2d 155, 158 (Ga. Ct. App. 2006) (concluding that a photo
identification was reliable when the victim, despite being intoxicated
at the time of the crime, had ample opportunity to see the
defendant, provided a good description of the defendant, and picked
the defendant’s photo without hesitation).
¶ 22 As for Le’s second assertion, the court did recognize that the
victim also paid attention to the gun but rejected Le’s argument
10 that the presence of the gun necessarily diverted the victim’s
attention from the shooter’s face to his weapon. In doing so, the
court noted that the victim was able to provide a detailed
description of the shooter shortly after the incident, suggesting that
the victim’s focus wasn’t on the gun. The victim’s testimony further
supports the court’s finding. He acknowledged that the gun briefly
attracted his attention but later clarified that he had only “quickly
glance[d]” at the gun and was otherwise looking at the shooter
during their encounter.
¶ 23 Third, Le argues that the trial court erred in evaluating the
accuracy of the victim’s prior description of the shooter because the
court “misconstrued” expert testimony regarding the cross-race
effect in eyewitness identifications. Specifically, at the second
suppression hearing, an expert on the effect of race on facial
recognition testified that this case implicated the cross-race effect
because the victim and Le were of different races. The expert
described the cross-race effect as “the idea that when people are
trying to recognize a face, they’re usually very good with faces of the
same racial group but they may have much more difficulty with
faces of different racial groups.” The court determined that the
11 cross-race effect didn’t undermine the reliability of the victim’s
identification because the victim “was one of the only witnesses who
did not use a generic ‘Asian male’ description, instead identifying
his shooter as ‘Vietnamese.’”
¶ 24 In challenging this finding, Le argues that just because the
victim generally described the shooter as Vietnamese doesn’t
automatically mean that he later correctly identified the specific
Vietnamese person who shot him. That’s true as far as it goes. But
as the court observed, the victim accurately described much more
than the shooter being Vietnamese, providing details “such as facial
hair, [the shooter’s] approximate height, and clothing he was
wearing.” And the victim’s description of the shooter, as the court
also observed, is supported by the video surveillance footage.
¶ 25 Finally, we also disagree with Le’s argument that the level of
certainty the victim exhibited at the time of identification weighs in
favor of unreliability because “the trial court did not acknowledge
that [the victim] believed [that] another person in the photo array
could have been the shooter.” While the victim picked another
photo in the array as a possible shooter, he positively identified Le
with a ninety percent certainty in the accuracy of his identification.
12 And Le cites no authority — nor are we aware of any — holding that
this prong of the Bernal test requires absolute certainty. Cf.
Campbell, ¶ 59 (observing that the victim’s “confidence in the
identification was high” when the victim was ninety-five percent
sure that his identification was accurate).
¶ 26 In sum, we conclude that the trial court didn’t err by
determining that, under the totality of the circumstances, the
victim’s out-of-court photo identification was reliable even though it
was based on an unduly suggestive photo array. Consequently, the
court also didn’t err when it denied Le’s motion to suppress the
photo-lineup identification and any subsequent in-court
identification.
B. Motion to Continue Due to an Alleged Discovery Violation
¶ 27 Le next contends that the trial court reversibly erred by
denying his motion to continue the trial on the ground that the
prosecutor committed a discovery violation. We again disagree.
1. Additional Background
¶ 28 Four days before the start of the trial, in September 2022, Le
filed a motion for a continuance, arguing that the prosecutor had
untimely disclosed certain information in violation of Crim. P. 16.
13 Specifically, he alleged that only the day before, the prosecutor had
disclosed a transcript of the victim’s testimony from December 2019
in Douglas County Case No. 19CV30236. In that case, the victim
sued Le for the personal injuries caused by the shooting.3 Le
argued to the trial court that the victim’s testimony in the civil case
was inconsistent with the victim’s prior statements regarding the
shooting. He requested an ex parte hearing to explain to the court
why that testimony was material to his defense.
¶ 29 The trial court addressed Le’s motion on the first day of trial.
It observed that the prosecutor’s failure to timely disclose the
transcript didn’t implicate a “discovery issue” because that
information was readily available, even more so to Le than the
prosecutor, considering that Le was a party to the civil case and the
People weren’t. The court further observed that Le’s prior criminal
defense counsel had requested the transcript from the civil case
before the prosecutor did. Under those circumstances, the court
said that it couldn’t find that Le didn’t have the information until
3 We take judicial notice of the contents of the court records in this
related civil case. See People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004).
14 the prosecutor’s disclosure. Finally, the court reasoned that a
continuance wasn’t warranted because the case had been
continued several times in the past, and the court had “warned
both the prosecution and the [defense] that this [trial] setting was a
firm setting.” Accordingly, the trial court denied Le’s motion to
continue.
¶ 30 Rule 16 governs discovery in criminal proceedings, outlining
the pretrial procedures that parties must follow. The rule requires
a prosecutor to make certain materials and information in her
possession or control available to the defense. As relevant here,
those include “[a]ny books, papers, documents, photographs or
tangible objects held as evidence in connection with the case.”
Crim. P. 16(I)(a)(1)(IV). The prosecutor must satisfy this obligation
“as soon as practicable” but not later than twenty-one days after
the defendant’s first appearance. Crim. P. 16(I)(b)(1).
¶ 31 In addition, under Rule 16(I)(a)(2), a prosecutor is also
required to disclose information in her possession or control that is
(1) exculpatory or favorable to the defendant and (2) material to the
case. See People v. Bueno, 2018 CO 4, ¶ 29; People v. Dist. Ct., 790
15 P.2d 332, 337 (Colo. 1990) (stating that this provision is grounded
in the due process requirements the Supreme Court identified in
Brady v. Maryland, 373 U.S. 83, 87 (1963)); In re Att’y C, 47 P.3d
1167, 1170-71 (Colo. 2002) (“[T]he materiality standard of Brady
. . . applies to Rule 16 disclosures in Colorado.”).
¶ 32 If a prosecutor fails to comply with the rule, then the trial
court may remedy the discovery violation by ordering the prosecutor
“to permit the discovery or inspection of materials not previously
disclosed, grant[ing] a continuance, prohibit[ing] the [prosecutor]
from introducing in evidence the material not disclosed or enter[ing]
such other order as it deems just under the circumstances.” Crim.
P. 16(III)(g) (emphasis added). “Discovery sanctions serve the dual
purposes of protecting the integrity of the truth-finding process and
deterring prosecutorial misconduct.” People v. Zadra, 2013 COA
140, ¶ 15, aff’d, 2017 CO 18.
¶ 33 “We review both a [trial] court’s resolution of discovery issues
and its decision to impose sanctions for discovery violations for an
abuse of discretion.” People v. Mendez, 2017 COA 129, ¶ 32. A
trial court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, unfair, or based on a misapplication of the
16 law. People v. Herrera, 2012 COA 13, ¶ 11. It is the appellant’s
duty to present a record demonstrating any claimed error. People v.
Ullery, 984 P.2d 586, 591 (Colo. 1999).
¶ 34 Because Le preserved this issue in the trial court, we review
his claim for harmless error. See Hagos, ¶ 12. We will reverse
under this standard only if the trial court’s error substantially
influenced the verdict or impaired the fairness of the trial. Id.
3. The Trial Court Didn’t Reversibly Err by Denying Le’s Motion for a Continuance
¶ 35 Le contends that the prosecutor’s failure to timely disclose the
transcript of the victim’s testimony in the civil proceeding was a
discovery violation that the trial court should have sanctioned by
continuing his trial. In advancing this argument, Le relies on Rule
16(I)(a)(1)(IV) for the proposition that because the transcript
contained testimony regarding the shooting — and was in the
prosecutor’s possession or control — the prosecutor was required to
disclose it earlier “regardless of whether Mr. Le could have accessed
the transcript as a party to the civil case.” Under these
circumstances, he argues, the court abused its discretion by
determining that the prosecutor didn’t commit a discovery violation
17 that would warrant continuing the case. We discern no reversible
error.
¶ 36 It’s questionable whether Rule 16 required the prosecutor to
affirmatively disclose the transcript of the victim’s testimony in the
civil case under these circumstances. As the trial court pointed
out, Le was a party to that case and his prior defense counsel not
only requested the transcript before the prosecutor did but also told
the prosecutor about it in the first place. But we need not decide
whether the prosecutor violated Rule 16.
¶ 37 Even if we were to assume, for the sake of argument, that the
prosecutor committed a discovery violation under Rule 16, Le fails
to carry his burden of showing how he was prejudiced by the trial
court’s decision not to continue his trial. See People v. Short, 2018
COA 47, ¶ 54. Le asserts that because the prosecutor provided the
transcript of the victim’s inconsistent statements only a few days
before the trial, he didn’t have ample opportunity to investigate
those statements and prepare his defense “fully and meaningfully.”
¶ 38 But as the People point out, the transcript underlying Le’s
claim wasn’t admitted into evidence or filed in the trial court, it isn’t
part of the appellate record, and it doesn’t appear to be a part of
18 any filing in the civil case. Because we have no access to that
document, we can’t confirm its contents, see whether it says what
Le claims it does, or evaluate how it could have impacted his trial.4
¶ 39 True, the trial court did note during the continuance hearing
that it “c[ould] find that there’s information in the transcript which
would be helpful to defense in preparing their defense.” However,
we disagree with Le’s argument that the quoted language was the
court’s finding of fact that the transcript was favorable to him. The
record shows that the court didn’t review the transcript before
making this statement. Instead, the court simply accepted as true
defense counsel’s description of the transcript’s contents before
denying Le’s motion to continue because he “certainly had” the
transcript and the court had already granted numerous
continuances in the past. In other words, the court assumed for
the sake of argument that even if the transcript contained
information that would perhaps assist Le in preparing his defense,
4 Likewise, to the extent Le argues that this issue implicates a
violation of Crim. P. 16(I)(a)(2), we can’t determine from the incomplete record whether the untimely disclosed transcript contained exculpatory information that was material to this case. See People v. Bueno, 2018 CO 4, ¶ 29 (listing elements of a Brady claim).
19 continuing his trial was nonetheless inappropriate under the
circumstances. And in any event, whether or not the trial court
perceived the transcript as favorable to Le doesn’t change the fact
that it is not available for our review.
¶ 40 Without the transcript, we can’t evaluate whether or to what
extent the victim’s testimony in the civil case was indeed
inconsistent with his prior statements. And we can’t resolve
whether the trial court’s decision not to give Le additional time to
investigate that issue substantially influenced the verdict or affected
the fairness of the trial proceedings.5 See Hagos, ¶ 12. As the
appellant in this case, it was Le’s duty to provide an adequate
record demonstrating that the trial court erred by not continuing
his trial, see Ullery, 984 P.2d at 591, and to show that he suffered
harm as a result of that ruling, see Short, ¶ 54. Because we can’t
determine from the record before us whether Le suffered any harm
due to the alleged error, he fails to carry that burden.
5 Indeed, Le’s appellate briefing also doesn’t identify any statements
in the transcript that were inconsistent with the victim’s earlier statements, and he doesn’t explain the significance of any inconsistencies.
20 ¶ 41 Under these circumstances, then, we conclude that the trial
court didn’t reversibly err by denying his motion for a continuance.
III. Disposition
¶ 42 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHUTZ concur.