People v. Theus-Roberts

2015 COA 32, 378 P.3d 750, 2015 Colo. App. LEXIS 444, 2015 WL 1656392

Opinions

Opinion by

JUDGE VOGT

*

€1 Defendant, Emmanuel C. Theus-Rob-erts, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder, first degree assault, aggravated robbery, second degree assault, and two crime of violence sentence enhancers. We affirm.

I. Background

1 2 According to the prosecution's evidence at trial, Theus-Roberts and another man, Josiah Parrish, got into a cab and told the driver to take them to a designated location. When they got there, Parrish got out. Theus-Roberts had the driver take him to several other locations before returning to the initial destination approximately an hour later, running up a $90 fare.

13 Theus-Roberts gave the driver $80 in cash and told him, "I'll go inside my apartment, and I'll bring the rest of the money." Theus-Roberts came back a few minutes later, told the driver that he did not have the rest of the money but that "my friend is going to come and give you the money," and walked away. After a few more minutes, a man-identified by the driver at trial as Thens-Roberts-came to the driver's window, aimed a gun at the driver, demanded and took the $80, and shot the driver in the chest.

4 The shooter fled and the dmver called 911. When 'the police arrived, the driver described the shooter and indicated the direction in which he had fled. Police officers found Theus-Roberts hiding in a nearby garage -and arrested him. After Theus-Rob-erts was in custody, the police brought an eyewitness to the crime, R.M., to the place where he was being held, R.M. identified him as the man she had seen near the cab.

5 Theus-Robert was convicted of the offenses set forth above and was sentenced to a prison term totaling eighty years.

II. R.M.'s Identification

16 Theus-Roberts contends that the trial court erred by denying his suppression motion and allowing R.M. to give testimony that was the product of an unduly suggestive out-of-court showup. We disagree.

A. Applicable Law

17 A trial court's ruling on pretrial identification procedures presents a mixed question of fact and law, We defer. to that court's findings of historical fact, but we may give different weight to those facts and reach a different conclusion in light of the legal standard. Bernal v. People, 44 P.3d 184, 190 (Colo. 2002); People v. Whittiker, 181 P.3d 264, 272 (Colo. App. 2006).

T8 One-on-one showup identifications are not per se violative of due process, although the procedure is viewed with disfavor because of its strong potential for unnecessary suggestiveness, People v. Mascarenas, 666 P.2d 101, 109 (Colo. 1983). A one-on-one showup identification may be permissible and reasonable in situations where immediate identification would facilitate an ongoing eriminal investigation, Id. The reasonableness of the showup procedure, however, must also be measured against the potential for irreparable mis-identification,. Id.

"[ 9 The test for determining whether an identification following a particular showup violates a defendant's due process rights is whether, under the totality of the cireumstances, the identification was unreliable because the confrontation was unnecessarily and irreparably suggestive, Id.; see People v. Trujillo, 75 P.3d 1133, 1136-37 (Colo, App. 2003), abrogation on other grounds recognized by People v. Johnson, 121 P.3d 285 (Colo. App. 2005). The following factors are relevant in making this determination: (1) the opportunity of the witness to view the suspect at the time of the crime; (2) the witness's degree of attention; (8) the accuracy of any prior description of the suspect; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Try-jillo, 75 P.3d at 1136.

B. Analysis

110 R.M. lived in a house across the street from where the shooting occurred. The police officer who interviewed her and conducted the showup testified at the suppression hearing.

{11 According to the officer, R.M. told him she had heard "a loud sound that sounded like a firecracker" and had looked out her window,. She saw a "black male wearing dark clothing and carrying a black bag next to the taxi cab" The man "walked away from the scene at a quick pace southbound through the alley."

{12 Theus-Roberts had been apprehended, and the officer decided to conduct a showup for identification purposes,. Before taking R.M. to the ambulance where Theus, Roberts was being held, the officer showed R.M. a black bag that Theus-Roberts had dropped as he fled, R.M. identified it as belonging to the person she had seen near the cab, On the way to the ambulance, the officer told RM, that "we may or may not have a suspect in custody" and that he "would like her to tell [him] whether or not that was the person she saw near the taxi cab." The officer parked forty to fifty feet away from the ambulance and shined his spotlight on Theus-Roberts, who was wearing a white shirt and had been taken out of the ambulance by two other officers, When he was brought out of the ambulance, R.M. spontaneously said."yes, that's him." At that point, approximately one hour had elapsed since the shooting.

{18 In a subsequent written statement, R.M. stated that the man she had seen was dark-skinned, but that the could have been black or Hispanic.

' 14 Theus-Roberts filed a motion to suppress R.M.'s identification. In addition to the suggestiveness of the confrontation, defense counsel cited the brevity of R.M.,'s initial opportunity to view the suspect, the vagueness of her description, her inability to see his face, and the discrepancy between her description and the clothmg Theus-Rob-~ erts was wearing.

115 After reviewing the applicable legal standards and determining that there was a need for an immediate identification in this case, the trial court concluded that, under the totality of the cirenmstances and upon consideration of the relevant factors, R.M.'s identification was not the product of an im-permissibly suggestive procedure:

[R.M.] had an opportunity to [view] the alleged criminal at the time she was at her window. Saw him walking away from the cab. Described him as to race and granted she didn't see his face. And I don't think that's significant, although it may be .an interesting subject for cross-examination. I don't think it is controlling.

She was paying attention to what she saw. It was late at night. There was unusual noise outside. She saw someone walking away rapidly from a cab that was sitting still in the middle of the street. Her prior description of the ... suspect was essentially consistent with that that she made thereafter.

Her level of certainty was very certain, She was absolutely positive it was the same person and that, I think, is significant, And I think it is positive that her positive indication was made immediately without any questioning. And the time elapsed between the crime and the ID, an hour, which I don't find to be unusual or inappropriate.

So for all those reasons based on the totahty of the cireumstances, I believe the identification in this case was not constitutionally suspect or impermissibly suggestive. I'm going to deny the motion to suppress.

unreliable identification. €16 The trial court applied the correct standard in deciding the issue before it; its findings are supported by the testimony at the hearing; and we agree that, under the totality of the circumstances, the identification was not unreliable. We are not persuaded by Theus-Roberts' contentions on appeal that the procedures accompanying the show-up and the deficiencies in R.M.'s identification of him require a contrary conclusion. The record does not show that anything the police did or failed to do led R.M. to make an Further, at trial, Theus-Roberts cross-examined R.M. exten-gively about facts that could call into question the reliability of her identification, thus allowing the jury to determine how much to credit that identification See People v. Monroe, 925 P.2d 767, 772 (Colo. 1996) ("Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977))).

III, Eyewitness Identification Testimony Instructions

T17 Theus-Roberts tendered three jury instructions that, in accordance with the reasoning in United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), would have provided guidance on evaluating the reliability of eyewitness identification: testimony. The trial court did not -err in refusmg to give the instructions. R

118 We review jury instructions de novo to determine whether the instructions as a whole accurately inform the jury of the governing law. People v. Vecellio, 2012 COA 40, ¶30, 292 P.3d 1004. If they do, the trial court has substantial discretion in formulating the instructions and deciding whether additional instructions are required. See id.; People v. Renfro, 117 P.3d 43, 48 (Colo. App 2004).

T19 The Colorado Supreme Court has consistently held that it is not error for a trial court to refuse tendered Telfaire instructions when the jury receives a general instruction 'on' the credibility 'of witnesses. See Campbell v. People, 814 P.2d 1, 5 n.8 (Colo. 1991) (collecting cases), abrogated on other grounds by People v. Shreck, 22 P.3d 68 (Colo. 2001).

120 Theus-Roberts asked the trial court to give three Telfuire instructions to assist the jurors in evaluating the credibility of the witnesses who had identified him as the shooter The trial court declined to do so, observmg that the instructions had never been approved for use in Colorado, that they overemphasized one aspect of the evidence, that the pattern instructions on credibility and assessment of the evidence were "thorough, complete, and clear," and that Theus-Roberts could argue any weaknesses in the eyewitness identification testimony, The court gave the pattern witness eredibility instruction:

-You may decide what testimony to believe. You should carefully consider all of the testimony given and the cireumstances under. which each witness has testified.

Consider each witness' knowledge, motive, state of mind; demeanor, and manner while on the stand. Consider the witness' means of knowledge, ability to observe, and strength of memory. Consider also any relationship each witness may have to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case. You should consider all facts and cireumstances shown by the evidence which affects the credibility of the witness' testimony.

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You may believe all of the testimony of any witness, or part of it, or none of it.

{21 Having given the pattern witness credibility instruction, which accurately informed the jury of the governing law, the trial court did not err in refusing Theus-Roberts' additional tendered instructions. See Compbell, 814 P.2d at 5 n.8. Although Theus-Roberts contends that "scientific advancements demonstrate the general 'eredi-bility instruction does not suffice in eases in which eyewitness identification is a material, disputed issue," we do not view this case as warranting a departure from controlling Colorado Supreme Court precedent, which is binding on us in any event.

IV. Officer's Testimony

[ 22 Theus-Roberts next contends that the trial court erroneously admitted irrelevant and prejudicial expert testimony from a lay witness when it allowed a police officer to testify about gunshot residue (GSR) testing and fingerpnnt recovery. We disagree.

A. Standard of Rewew

123 Whether to admit evidence is a matter committed to the discretion of the trial court, whose ruling will not be disturbed unless it was manifestly arbitrary, unreasonable, or unfair. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003).

124 If the defendant objected to the admission of the evidence, we review for harmless error; under this standard, an error is harmless if it did not substantially influence the verdict or affect the fairness of the trial, People v. Reed, 2018 COA 113, ¶ 43, 338 P.3d 364. If the defendant did not object, or objected on grounds different from those raised on appeal, we review for plain error, which is error that is both obvious and substantial and that so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Ujaama, 2012 COA 36, ¶37, 302 P.3d 296; see also People v. Miller, 113 P.3d 743, 750 (Colo. 2005).

B. Applicable Law

125 Relevant evidence, that is, evidence "having any tendency to make the existence of any fact that is. of consequence to the determination of the action more probable or less probable than it would be without the evidence," is admissible unless otherwise provided by constitution, statute, or rule. CRE 401, 402.

$26 A party may present relevant evidence through the testimony of expert witnesses or lay witnesses in accordance with the standards set forth in CRE 701 and 702. Under CRE 701, a witness not qualified as an expert may offer opinion testimony only if it is rationally based on the perception of the witness,. helpful to a clear understanding of the witness's testimony or the determination of a fact in issue, and not based on selentlfic, technical, or other specialized knowledge within the scope of CRE 702. See People v. Rincon, 140 P.3d 976, 982 (Colo. App. 2005) (lay opinion testimony permissible if opinion is not based on specialized knowledge but, rather, could be reached by average person having been in same position as witness).

"27 Police officers regularly and appropriately offer lay opinion testimony under CRE 701 based on their perceptions and experiences. People v. Stewart, 55 P.3d 107, 123 (Colo. 2002); People v. Conyac, 2014 COA 8M, ¶58, 361 P.3d 1005. However, when a police officer's testimony requires the application of, or reliance on, specialized skills or training, the officer must be qualified as an expert under CRE 702 before offering such testimony. Stewart, 55 P.3d at 123; Conyac, ¶ 58.

C. Analysis

128 Before the police officer testified, the jury had heard a forensic expert opine on possible explanations for the absence of GSR on Theus-Roberts' hands and jacket. Another expert had testified that no identifiable fingerprints were recovered from the cab or the gun in Theus-Roberts' bag and had offered reasons explaining Why such prints might not be found.

129 The officer who requested the GSR and latent fingerprint tests then testified as a lay witness. When the prosecutor asked him about his experience with GSR testing and inquired how often, in his experience, such testing yielded a positive result, defense counsel objected on relevance grounds. The objection was overruled and the witness testified:

With my experience over the 16 years that I've been a police officer and the investigative experience that I've had, I've never had a positive result to GSR. I do have knowledge that other detectives, particularly one detective ... that I work with in the Homicide Unit, I believe he did have one positive test.

The officer also testified, Wlthout objection, - that in his previous investigations he had never personally "experienced a recovery of a latent fingerprint from a firearm."

[ 30 We find no grounds for reversal based on the officer's testimony. Although Theus-Roberts objected at trial, and argues on appeal, that the testimony was irrelevant, it was relevant to show that the absence of GSR and fingerprint evidence was not necessarily exculpatory. See CRE 401.

{31 Further, even if we assume that the officer's testimony was sufficiently based on specialized knowledge that he should have been offered as an expert, there was no plain error. . The officer was qualified by his experience and training to testify about GSR and fingerprint testing; his testimony was brief; and it was cumulative of the testimony of experts who had already testified, in detail and without objection, about why GSR or latent fingerprint tests might be negative. See Stewart, 55 P.3d at 124-25 (allowing police officer to testify without qualifying him as expert was harmless error where his testimony was corroborated by other evidence); People v. Warrick 284 P.3d 139, 145-46 (Colo. App. 2011) (no plain error in allowing officer to testify as lay witness about lie detection techniques, where officer was qualified to offer such testimony).

V. Complicity Theory of Liability Instruction

132 Theus-Roberts further contends that the trial court erred in instructing the jury, over his objection, on complicity. He argues that there was insufficient evidence to support such an instruction, Again, we disagree. ~

183 Whether sufficient evidence supports a requested jury instruction is a question of law that we review de novo. People v. Rios, 2014 COA 90, ¶ 42, 338 P.3d 495. We view the evidence in the light most favorable to the giving of the instruction. Id.

134 If the evidence presented establishes that two or more persons were jointly engaged in the.commission of a crime, then it is appropriate for the trial court to instruct the jury on complicity. People v. Osborne, 973 P.2d 666, 669 (Colo. App. 1998); see People v. Chavez, 190 P.3d 760, 768 (Colo. App. 2007) (when two or more persons are involved in the commission of a crime, one charged" as a principal may be tried and convicted as a complicitor).

$85 Complicity is a legal theory by which an accomplice may be held criminally liable for a crime committed by another person if, with the intent to promote or facilitate the commission of the offense, the accomplice aids, abets, advises, or encourages the principal in planmng or committing the offense. § 18-1-608, C.R.S. 2014. To establish responsibility under the complicity statute, the prosecution must prove that (1) the principal committed the crime; (2) the complicitor knew that the principal intended to commit the crime; and (8) the complicitor, having the requisite knowledge, aided, abetted, or encouraged the principal in the commission of the crime. People v. Wheeler, 772 P.2d 101, 103 (Colo. 1989).

The prosecutio'n' charged Theus-Roberts as a principal and presented evidence that it was he who shot the driver. It also requested an instruction on complicity, arguing that, if the jury believed that Parrish was the shooter, it should still be able to find Theus-Roberts liable as a com-plicitor based on his having "set up the see-nario." The trial court concluded that suffi-client evidence had been presented to warrant instructing the jury on complicity.

137 We agree with the trial court, The jury heard evidence that the call to order the cab, made by a person who identified himself as Emmanuel, was placed from a cell phone belonging to Parrish's mother; that Parrish and Theus-Roberts were the two passengers in the cab; that the driver was asked to, and did, drop Parrish at a location near his apartment and was later directed by Theus-Rob-erts to return to that location; that Theus, Roberts told the driver that his friend would" come to the cab and give the driver the balance of the fare; and that a man subsequently appeared at the cab window, demanded money, and shot the driver. Although R.M. identified the man standing by the cab as Theus-Roberts, she did not see his face; and the jury could have believed that she in fact had seen Parrish, whose physical appearance was described as similar to that of Theus-Roberts..

"188 Viewed in the light most favorable to the giving of the instruction, the eviderice was sufficient to permit the jury to conclude that Parrish was the shooter and that Theus-Roberts intended to, and did, aid and abet Parrish in setting up the crime. Thus, the trial court did not err in instructing the jury on complicity. In any event, any error in giving the complicity instruction would not warrant reversal where, as here, there is no contention that the evidence was insufficient to support Theus-Roberts' conviction as a principal. See People v. Dunaway, 88 P.3d 619, 631 (Colo. 2004); People v. Rowe, 2012 COA 90, ¶ 28, 318 P.3d 57.

~ VIL Cumulative Error

€89 Because the alleged errors of which Theus-Roberts complains did not, even considered eumulatively, deprive him of a fair trial, he is not entitled to relief on a theory of cumulative error, See People v. Roy, 723 P.2d 1345, 1349 (Colo. 1986).

[ 40 The judgment is affirmed.

JUDGE NAVARRO concurs. JUDGE BERGER specially concurs.

Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, CRS. 2014.