Summary
In People v. Reynolds, 38 Colo. App. 258, 559 P.2d 714 (1976), this court held that a trial court need not give a Telfaire-type instruction if a general instruction on credibility of witnesses is given.
Summary of this case from People v. MartinezOpinion
No. 75-246
Decided September 23, 1976. Rehearing denied October 21, 1976. Certiorari denied February 7, 1977.
Defendant was charged with rape, deviate sexual intercourse by force, and first degree kidnapping. Convicted by a jury, defendant appealed.
Affirmed
1. CRIMINAL LAW — Identification — Photograph — Taken During Defendant's Incarceration — Other Felony Charges — Rule of Procedure — Requiring Court Order — Inapplicable — Refusal to Suppress — Not Error. The authority of law enforcement officers to photograph, fingerprint, and measure a suspect while he is under arrest, confined, or awaiting trial has long been recognized, as well as the propriety of using photographs obtained thereby for identification purposes; accordingly, where a photograph was taken of a suspect incarcerated in connection with various felony charges and was thereafter shown to a rape complainant who identified the suspect as her attacker, Crim. P. 41.1 was not applicable; hence, where at subsequent rape trial, defendant moved to suppress the victim's identification of him on grounds that a court order to take the photograph had not been obtained in compliance with that rule, the trial court's denial of that motion was not error.
2. Jury Instructions — Credibility of Witnesses — General Instruction Given — Special Instruction — Eyewitness Identification — Properly Denied. It is proper for the trial court to deny a special instruction on eyewitness identification testimony where a general instruction on credibility is given.
Appeal from the District Court of El Paso County, Honorable Hunter D. Hardeman, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, James S. Russell, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Carol L. Gerstl, Deputy State Public Defender, for defendant-appellant.
Defendant, Hoover Reynolds, was convicted by a jury of deviate sexual intercourse by force, of rape, and of first degree kidnapping. He appeals contending that: (1) Testimony relative to his identification by the complainant in a photographic display should have been suppressed; and (2) an instruction should have been given to the jury to assist them in evaluating complainant's eyewitness testimony. We affirm.
Insofar as pertinent to this review, the record reflects that the complainant was kidnapped and assaulted on June 20, 1974. Thereafter defendant was arrested and incarcerated in conjunction with other felony charges. On July 6 defendant was interviewed in the jail by a detective relative to defendant's knowledge of other crimes allegedly committed by another suspect. In the course of that interview, the detective concluded that defendant might fit the description provided by other rape victims of their assailant and so a color Polaroid picture of defendant was taken. This photograph, along with five others, was shown to the complainant on July 10, 1974, and she picked the defendant's photograph as that of her attacker.
[1] Crim. P. 41.1 authorizes a court to order a person to submit to nontestimonial identification upon a showing that reasonable grounds exist to suspect that an offense was committed by that person. Defendant contends that the out-of-court identification testimony, based upon the photograph, should have been suppressed because the detective failed to obtain a court order to take the photograph in compliance with Crim. P. 41.1. On the other hand, the authority of law enforcement officers to photograph, fingerprint, and measure a suspect while he is under arrest, confined, or awaiting trial has long been recognized, as well as the propriety of using photographs obtained thereby for identification purposes. See, e.g., United States v. Kelly, 55 F.2d 67 (2nd Cir. 1932); Shaffer v. United States, 24 App. D.C. 417 (1904), cert. denied, 196 U.S. 639, 25 S.Ct. 795, 49 L.Ed. 631 (1905); see also Annot., 16 L.Ed.2d 1332 at 1343; 21 Am. Jur. 2d Criminal Law § 369. Hence, we conclude that Crim. P. 41.1 is not applicable under the circumstances of this case, and thus the trial court properly denied the motion to suppress.
Defendant also contends that the trial court erred in failing to instruct the jury on eyewitness identification testimony pursuant to the instruction approved in United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). We disagree.
The Telfaire instruction directs the jury to evaluate eyewitness identification in terms of, inter alia, whether the witness had the capacity and opportunity to observe, whether the identification was a product of the witness' recollection, and whether the witness failed to make identification on prior occasions. In lieu thereof, the trial court instructed the jury that it must find beyond a reasonable doubt that defendant was in fact the perpetrator of the offense before it could find him guilty. The trial court also informed the jury on the credibility of witnesses generally in the form of Colo. J.I. (Crim.) 3:8.
[2] While we recognize that the Telfaire instruction has been approved by various courts, see, e.g., United States v. Holley, 502 F.2d 273 (4th Cir. 1974); United States v. Hodges, 515 F.2d 650 (7th Cir. 1975), in this jurisdiction it is proper for the trial court to deny a special instruction on eyewitness identification testimony where a general instruction on credibility is given. People v. Lopez, 182 Colo. 152, 511 P.2d 889 (1973).
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.