People v. Montanez ( 1997 )

Chief Judge STERNBERG

dissenting.

The majority upholds the action of the trial court in recalling a jury, ordering it to redeli-berate, and then accepting a change of verdict from not guilty to guilty on a crime of violence charge. The majority also concludes that the identifications of the defendant, both by photographic array and in court, were not unduly suggestive. I disagree with both conclusions, and therefore, I respectfully dissent.

I.

At the conclusion of the trial in this case, the jury returned verdicts of guilty to two counts of first degree burglary and to one count of aggravated robbery, but found that defendant had not committed a crime of violence. The jury was polled and each juror individually affirmed the verdicts. The court then discharged the jury, excused the members, and proceeded to discuss sentencing with counsel. During that discussion, a bailiff informed the court that one of the jurors had told her that one of the verdicts was incorrect. The court directed the bailiff to collect the jurors and bring them back to the courtroom.

The record reflects that ten of the jurors were still in the hall adjacent to but outside of the courtroom; however, one juror was at a doorway leading out of the courthouse and another, juror was “in the road area” outside the courthouse.

When the jurors were assembled, the court polled them again and all stated that the verdict on the crime of violence charge was in error. The court directed the jury to retire to the jury room and redeliberate. They tore up the first verdict form, returned to the courtroom, and presented a new verdict, finding defendant guilty on the crime of violence charge. The jury was again polled and again affirmed the verdict.

Generally, after a verdict has been rendered or received by a court in a criminal case, and the jury has been discharged and has dispersed, it may not thereafter be recalled to reconsider, amend, or correct its verdict. As stated in Kreiser v. People, 199 Colo. 20, 22, 604 P.2d 27, 29 (1979), the rationale for the rule is as follows:

[OJnce the jurors have separated and departed from the courtroom and from the control of the judge, with the opportunity to mingle and discuss the case with others, whether discussion he had or not, the jury’s functions are at an end. (emphasis added)

If the jury is no longer under the control of the court, the opportunity for contamination exists. See State v. Myers, 318 S.C. 549, 459 S.E.2d 304 (1995).

Kreiser v. People is in the mainstream of American jurisprudence on the issue. I am aware of no reported cases allowing a jury to reassemble after a verdict valid on its face is received, the jury is discharged, and jurors are beyond the control of the judge. See generally Jury Reassembly — Criminal Cases Annotation, 14 A.L.R.5th 89 (1993); 4 C. Torcia, Wharton’s Criminal Procedure 309 (1992).

Applying the rule of the Kreiser ease requires the conclusion that the trial court here erred in ordering or even permitting the jury to “redeliberate” and to change an unambiguous “not guilty” verdict to one of guilty to the crime of violence charge because there was an opportunity for at least one juror to become “contaminated” by mingling with others. Indeed, there was more reason to permit “correction” of the verdict in Kreiser than in this case. There, the critical part of a verdict form omitted the word “serious,” affecting the degree of the assault there involved. Here, the difference is fundamental: the distinction between not guilty and guilty.

It is true that in Kreiser several of the jurors were far beyond the court’s control, having actually arrived at their homes. However, the distance jurors travel from the courthouse is not significant; the test is whether the “opportunity to mingle and discuss the case with others, whether discussion be had or not, [exists].” Kreiser v. People, supra, 199 Colo. at 22, 604 P.2d at 29.

Here, all jurors had left the courtroom. One might argue, albeit with questionable persuasiveness, that the ten jurors in the hall adjacent to the courtroom remained under the control of the court. It cannot be said that these ten jurors had not mingled with other persons in the hallway. They had been discharged and were no longer under the constraint of their oath not to discuss the case with others.

In any event, it cannot be disputed that the juror who was about to leave the courthouse and especially the juror who was outside of the courthouse were beyond the control of the court and that the possibility of contamination existed. Thus, the trial court’s reconstituting the jury for new deliberations was reversible error.

II.

I also disagree with the majority’s conclusion that the photographic array identification and other derivative identification testimony were proper. In my .view, they were unduly suggestive and should have been suppressed.

Late one night in early August 1992, a man with a gun robbed a house occupied by a woman, her adult son, and her adult daughter. Over the two-month period following the robbery, each of the victims separately was shown photographic arrays of suspects by the police on three different occasions. The first two photo arrays did not contain a photograph of the defendant, but the third did.

After viewing the first array, all three victims identified one of the photos as possibly being the perpetrator. When shown the second array, none of the victims made an identification.

Thereafter, the police found a fingerprint in the victims’ home which they identified as being defendant’s, and in late October, the three victims were shown a third photographic lineup. Initially, none of them was able to make a positive identification, although the daughter indicated that the person depicted in photograph number one had similar features to the robber and the individual depicted in photograph number two had the same eyes as the perpetrator; nevertheless, she was not able to identify the person she thought was in her house. The son and daughter were both uncomfortable identifying anyone.

After the son failed to identify the robber, the investigator put the photographs away and told him that he felt the police “had someone in custody that had committed the crime.” The witness asked the investigator if that person’s photograph had been included in the lineup. The investigator told the victim that he could not comment; nevertheless, the investigator showed the photographic array to the victim again. The victim then stated, “If it’s any one of them, it’s photo number 2.” Defendant’s photograph was number two.

At the preliminary hearing, this witness identified defendant as the robber. At that time, the only people present in the courtroom were the judge, the attorneys, and defendant, who was dressed in an orange jail-issue jumpsuit. During the trial, the witness confirmed his identification of the defendant as the robber. The other two victims were permitted to identify the defendant, who was seated at counsel table in the courtroom, as the robber.

A. The Photographic Array

Admission of evidence of an unnecessarily suggestive identification procedure violates due process of law unless the totality of circumstances establishes that the procedure did not result in a substantial likelihood of misidentification. Alvarez v. People, 653 P.2d 1127 (Colo.1982).

To determine the reliability of the identification, the corrupting effect of the suggestive identification procedure must be weighed against the five factors discussed in the majority’s opinion: (1) the witness’ opportunity to view the perpetrator, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description, (4) the witness’ level of certainty at the time of the identification, and (5) the length of time between the crime and the identification. People v. Walker, 666 P.2d 113 (Colo.1983).

Here, although the first two prongs of the Walker test appear to have been met, there is considerable difficulty with the third, fourth, and fifth prongs thereof. As to the third prong, the physical description the witness gave the police differed from defendant’s actual hair style, height, weight, and facial hair.

As to the fourth prong of the Walker analysis, at first the witness was unable to identify the defendant; only after being told the police now had a suspect did the witness identify him. Even then, the identification was expressed in uncertain terms.

It is true that the investigator did not tell the witness that the photograph of the suspect was included in the array. However, it would be disingenuous in the extreme to conclude that the witness was not aware that the photo array included a picture of the individual whose fingerprint the police had and who was a suspect. There would have been no logical reason to conduct another photographic lineup unless it contained the suspect’s picture. Indeed, when the witness was cross-examined at trial on this issue, he conceded that “for the umpteenth time,” he was not positive about anything before he was told of the fingerprint evidence.

Finally, regarding the fifth Walker prong, two and a half months had elapsed between the time of the crime and the third photographic array.

Under the totality of these circumstances, in my view, both the identification procedure and the last photographic array were unduly suggestive and should have been suppressed.

B. The In-Court Identification

Even if an unduly suggestive out-of-eourt identification is suppressed, a subsequent in-court identification may still be allowed if there is an independent source for the in-court identification. See Huguley v. People, 195 Colo. 259, 577 P.2d 746 (1978). However, for the in-court identification to be admitted, the prosecutor must establish by clear and convincing evidence that the in-eourt identification was not the product of the previous unduly suggestive procedure, but rather was based on the witness’ independent observations during the crime. People v. Walker, supra.

In evaluating the totality of the circumstances to determine whether an independent source for the in-court identification exists, a court should examine the same five factors which bear on the reliability of an identification. Huguley v. People, supra.

Here, the trial court conducted a hearing and found that an independent source for the identification existed based on the victim’s opportunity to view the perpetrator at the time of the crime. However, the court did not recognize the inherently suggestive nature of the identification procedure which was, in essence, a one-on-one confrontation, see People v. Walker, supra, and did not address the other Walker factors relevant to reliability discussed above.

As noted above in the analysis of the photographic array procedure, there were significant differences between the defendant’s appearance and the physical description of the perpetrator previously given by the witness. Also, many months had elapsed between the crime and the trial.

For these reasons, I would reverse the judgments of conviction and remand the cause for a new trial on the burglary and robbery charges.