23CA0711 Peo v Cousett 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0711
El Paso County District Court No. 21CR5216
Honorable Laura N. Findorff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Preston Michael Cousett,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division A
Opinion by CHIEF JUDGE ROMÁN
Hawthorne* and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Defendant, Preston Michael Cousett, appeals the judgment of
conviction entered upon jury verdicts finding him guilty of four
counts of aggravated robbery, four counts of menacing, and two
counts of theft. He contends that the trial court reversibly erred by
failing to sua sponte assess whether a victim’s first time in-court
identification of him as the perpetrator was constitutionally reliable
and whether the identification was admissible under the rules of
evidence. Cousett argues that, had the court conducted either
analysis, the identification testimony would have been excluded.
We affirm.
¶ 2 In Neil v. Biggers, 409 U.S. 188, 199-200 (1972), the United
States Supreme Court held that the constitutional right to due
process requires a trial court to assess whether, under the totality
of the circumstances, an out-of-court identification or an in-court
identification from a witness at trial is reliable. See also Garner v.
People, 2019 CO 19, ¶¶ 2, 36-37. In Garner, the Colorado Supreme
Court concluded that Biggers’ reliability assessment requirement
did not apply to a first time in-court identification that is not
preceded by an impermissibly suggestive pretrial identification
procedure arranged by law enforcement and where nothing beyond
2
the inherent suggestiveness of the ordinary courtroom setting made
69.
¶ 3 Cousett argues that Garner was wrongly decided. But he
correctly acknowledges that we are bound by this opinion and
unable to depart from its holding. See People v. Eason, 2022 COA
54, ¶ 68 (appellate courts are bound by our supreme court’s
decisions). Because Cousett does not assert that the victim’s first
time in-court identification was preceded by an impermissibly
suggestive pretrial identification procedure or was impermissibly
suggestive beyond that of the ordinary courtroom setting, we reject
his constitutional challenge to the identification testimony.
¶ 4 Cousett alternatively argues that the trial court should have
excluded the victim’s in-court identification under the rules of
evidence. See Garner, ¶ 68 (“That due process does not require a
reliability hearing under Biggers does not strip judges of their role
as gatekeepers under the rules of evidence.”). He asserts that the
court should have sua sponte excluded the unobjected to
identification because (1) the victim did not sufficiently observe the
perpetrator to make an admissible identification pursuant to CRE
3
602 and 701 and (2) the probative value of the victim’s identification
was substantially outweighed by the danger of unfair prejudice, as
prohibited by CRE 403.
¶ 5 We conclude that Cousett did not establish that the trial court
plainly erred by failing to sua sponte apply the rules of evidence to
exclude the in-court identification. See id. (“We cannot hold that it
was plain error for the trial court not to exclude the identifications
under CRE 403, 602, or 701 sua sponte.”). Importantly, we note
that Cousett did not explain why the admission of the identification
testimony, if error, would have warranted reversal under a plain
error review. See People v. Snelling, 2022 COA 116M, ¶ 33 (under
the plain error standard, we will reverse an unpreserved evidentiary
error only if the error was obvious, substantial, and so undermined
the fundamental fairness of the trial itself as to cast serious doubt
on the reliability of the judgment of conviction).
¶ 6 The judgment is affirmed.
JUDGE HAWTHORNE and JUDGE BERGER concur.
