People v. Stevens

642 P.2d 39, 1981 Colo. App. LEXIS 935

• Court: Colorado Court of Appeals
• Decided: December 3, 1981
• Docket: 80CA0321
• Status: Published

Opinions

STERNBERG, Judge.

The defendant, Betty Jane Stevens, appeals a judgment entered on a verdict finding her guilty of second degree forgery. We reverse.

During August and September of 1978, six checks were forged on a bank account of an individual who had lost his checkbook. Each was made payable to and cashed at a Fort Collins grocery store. The first four were cashed without difficulty, but when they were returned to the store the account was placed on the store’s bad check list. A fifth check was cashed on September 19, when the clerk neglected to compare it with the bad check list. On September 25, however, when a sixth check was tendered the clerk noted that the account was on the bad check list. The store manager attempted unsuccessfully to detain the person tendering the check. The manager did note the license number of an automobile in which the person left the store. The police searched motor vehicle records and determined that the car belonged to defendant’s father, a resident of New Jersey, but nothing further was done at that time.

Approximately two months later the store manager and two employees were shown a photographic array from which each identified a picture of the defendant as the person who tendered the check. This prosecution followed.

Before trial defendant moved to suppress the in-eourt identification. The trial court rejected defendant’s claim that the composition of the array was impermissibly suggestive and denied the motion. This denial leads to defendant’s first contention of error on appeal.

Defendant argues, and we agree, that the photographic array was so inherently suggestive as to be irreparably tainted and, therefore, the trial court erred in not suppressing both the photographic identifications and the later in-court identification. After viewing the six photographs in the array, we conclude that they unmistak-enly were unduly suggestive. The person who perpetrated the offense had been described by the witnesses as being a light skinned black woman. In the photographic array only one was of a black person, and only that one was of a person having the facial characteristics generally associated with one of the Negro race. Where, as here, the perpetrator of the crime is known to be black, use of an array of six photographs, five of which do not depict individuals having facial characteristics and skin tones associated with the Negro race serves to channel the witnesses’ attention to the only photograph of a black person in the array. Hence, as a matter of law, we hold that the out-of-court identification was unduly suggestive and thus improper. See Huguley v. People, 195 Colo. 259, 577 P.2d 746 (1978).

Accordingly, all evidence of this out-of-court identification should have been suppressed. Additionally, the trial court should have addressed the issue of whether there was an independent basis for the in-court identification before allowing the witnesses to identify the defendant at the trial. Huguley v. People, supra.

A second question of significance is raised. The defendant was originally represented in this case by an attorney who entered his appearance, filed motions, and appeared for her at the preliminary hearing. He withdrew as her attorney on January 31, 1979, and in July of that year became employed by the office of the district attorney whose staff prosecuted this case. Defendant moved for appointment of a special prosecutor on the first day of trial. The court heard the arguments of counsel and denied the motion.

As a preliminary matter, we note that the prosecutor did not object to the motion on the grounds that it was not timely filed, and indeed, there is an indication in the record that there had been prior discussion concerning the fact that such a motion would be made two weeks prior to the commencement of trial. We conclude that the People waived their right to object to the timeliness of the motion. See People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977); cf. People v. District Court, 189 Colo. 159, 538 P.2d 887 (1975).

We hold that the court erred in not granting the motion for appointment of a special prosecutor. The court had before it facts showing the attorney-client relationship in this very case between defendant and an attorney now a member of this prosecutor’s staff.

Contrary to the arguments of the People, a defendant should not have to demonstrate prejudice or lack of integrity. The most compelling rationale for requiring appointment of a special prosecutor is avoidance of the appearance of impropriety. In this regard the circumstance of a defendant’s former attorney joining the very staff which had the duty of prosecuting that defendant were commented on as follows in People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909 (1980):

“[Such representation] inescapably gave both defendant and the public the unmistakeable appearance of impropriety and created the continuing opportunity for abuse of confidence entrusted to the attorney during the months of his active representation of defendant. It is no answer that defendant offers no evidentiary proof of actual prejudice. In the circumstances such proof would most likely be out of defendant’s reach . ... ”

Any inconvenience to the People resulting from appointment of a special prosecutor, usually a deputy district attorney from another judicial district, see § 20-1-107, C.R.S.1973 (1978 Repl.Vol. 8), is but a small price to pay to avoid this appearance of impropriety. A defendant should not be forced to attempt to prove that there was an actual indiscretion or impropriety. Evidence of such conduct, being under the control of the prosecution, would be well-nigh impossible for a defendant to bring forth. Shinkle, supra.

We discern no merit to defendant’s final contention of error, that the court erred in not giving a special jury instruction concerning the credibility of eyewitness identification testimony. A general credibility instruction was given; thus, there is no error. See People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976).

The judgment is reversed and the cause is remanded to the district court for the purpose of appointment of a special prosecutor pursuant to § 20-1-107, C.R.S.1973 (1978 Repl.Vol. 8), and for a new trial.

KIRSHBAUM, J., concurs. COYTE, J., dissents.