Opinion
Sept. 23, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 108
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy State's Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Lee Belstock, Deputy State Public Defender, Denver, for defendant-appellant.
COYTE, Judge.
Defendant Velarde was convicted of third degree burglary in violation of C.R.S.1963, 40--4--204 (now s 18--4--204, C.R.S.1973), and brings this appeal on the grounds that the identification was improper and that the conduct of the district attorney occasioned a mistrial. We agree on the latter point, and therefore reverse the conviction.
On the morning of July 16, 1973, a man was observed crouching by the open safe at a Goodwill Industries store. The manager of the store observed the man insert a petty cash folder into his belt. She asked him what he was doing and he replied, 'Nothing, looking.' While she inspected the open safe, the man hurriedly left despite her efforts to restrain him. Another employee chased him approximately one block. At this point, the man turned to the employee and said, 'I haven't got anything,' got into a car, and drove off. Later that morning, the investigating police officers showed five photographs to two witnesses. They identified the defendant and a warrant was issued for his arrest. He was convicted after trial to a jury.
Defendant first contends that both the photographic and in-court identification by eyewitnesses should have been suppressed. We disagree. The trial court determined the propriety of the eyewitness identification at an In camera proceeding as mandated by People v. Lovato, 180 Colo. 445, 506 P.2d 361. At this hearing, evidence was presented as to the circumstances of the identification.
Photographic arrays are a permissible part of investigative procedure if conducted within certain guidelines. People v. Knapp, 180 Colo. 280, 505 P.2d 7. These safeguards include: (1) The pictures must not be improperly suggestive because only one of the array fits the description given to police; (2) the pictures must not be presented in a suggestive manner; (3) all numbers or other indications that the pictures are mug shots must be covered. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
In ruling on defendant's motion to suppress, the court found that the identification was not tainted. The testimony of the investigating detective and the eyewitnesses, though differing as to some details of the procedure of displaying the photographs, supports the court's conclusion. The two witnesses closely observed the defendant when he was in the store. The array of five pictures contained no element of suggestibility. All pictures were of individuals of Spanish-American descent who were similar in physical size with their features well-defined despite facial hair on some. Additionally, the testimony of the witnesses was that they were identifying the defendant in court because of what they remembered from the date of the crime, not from their memory of the photographs. See Glass v. People, 177 Colo. 267, 493 P.2d 1347. Since the People sustained its burden of showing that the identifications were products of the witnesses' own recollections, the court's ruling was proper. See Sandoval v. People, 180 Colo. 180, 503 P.2d 1020.
Defendant also contends that it was error for the trial court to refuse his tendered instructions on the unreliability of eyewitness identification. It is not error to deny a special instruction on the credibility of eyewitnesses where proper instructions on witness credibility are given. People v. Lopez, 182 Colo. 152, 511 P.2d 889. Here the jury was properly instructed in the words of Colorado Jury Instructions (Criminal) 3:4 and 3:8 on the weight to be given to the testimony of witnesses and on the burden of proof. No repetition of those instructions needed to be given. People v. Medina, Colo., 522 P.2d 1233. Furthermore, the jury was apprised of the vagaries of identification by the witnesses themselves, who testified as to the length of time that they had been able to observe the defendant, what portions of his face they had seen and the certainty of their identification.
Defendant finally contends that the behavior of the district attorney was so improper and prejudicial in conducting the cross-examination of the defendant that a mistrial should have been declared. We agree.
The credibility of any witnesses including a defendant may be impeached by showing any past felony convictions. Section 13--90--101, C.R.S.1973, And Diaz v. People, 161 Colo. 172, 420 P.2d 824. However, if a district attorney elects to cross-examine a witness on his past criminal record, he must do so with fairness.
In this case the defendant appeared as a witness on his own behalf. The defense attorney asked him if he had ever been convicted of a felony. The defendant replied that he had been convicted in 1962, and had been sentenced to a term of four to eight years. The defense attorney then asked defendant if he had been convicted of any other felonies and the defendant replied, 'No.' During cross-examination, the district attorney asked again about the 1962 conviction and then proceeded to question defendant about two other dates, 1957 and 1967. The defendant stated that he had not been convicted on either date. The district attorney then asked if the defendant had been in state prison during 1967. At this point, the defendant's attorney made a motion for mistrial outside the presence of the jury. After argument, the motion was denied.
The district attorney and the court had been put on notice, at an In camera hearing before the defense put on its case, that defense counsel would object to any questions asked of the defendant concerning two of the dates, 1957 and 1967, which appeared on his 'rap sheet.' In 1957, the defendant had been tried before the Denver juvenile court and sentenced to the State Reformatory at Buena Vista. Juvenile offenses are not felonies for the purpose of impeaching a witness. Section 19--1--109(2), C.R.S.1973, And People v. Robles, 183 Colo. 4, 514 P.2d 630. The defendant's 1967 conviction was reversed by the Colorado Supreme Court and the case was not retried. At the In camera hearing, the judge declined to issue any ruling on the use the district attorney might make of the two dates, 1957 and 1967. The judge stated, '(H)e knows the law with respect to how to use prior felony convictions for impeachment purposes.'
After objection by the defendant's attorney, the trial court ruled that the questions had been improper but could be cured by proper jury instructions. However, we agree with the defendant's contention that the damage had been done and that the jury could not be expected to disregard both the questions and the answers. The questions of the district attorney indicated that he had knowledge that the defendant had a long history of convictions and was lying about them. The question about a particular time the defendant spent in the state penitentiary is especially objectionable. Section 13--90--101, C.R.S.1973, allows a witness to be questioned only about felony convictions.
As stated in People v. Goldsberry, 181 Colo. 406, 509 P.2d 801:
'It is elementary that in a criminal trial to a jury, evidence of a defendant's criminal activity, which is unrelated to the offense charged, is inadmissible. When reference is made in the presence of the jury to such criminal activity, a mistrial is normally required. . . .'
* * *
* * *
'Even though the trial judge in this case made an effort to erase the effect of this inadmissible evidence from the minds of the jury by his cautionary instruction to disregard it, it is our view that a mistrial was, nevertheless, required in this case. . . .'
Similarly, a mistrial should have been granted here.
We also note that prejudicial testimony of other criminal activities of the defendant was presented by one of the police officers and direct that this testimony not be presented upon retrial. As quoted above in People v. Goldsberry, supra, evidence of other criminal activity is inadmissible to show defendant's guilt for the crime for which he is on trial. Here, the investigating police officer testified that he 'thought of the Velarde brothers' when first told of the theft in order to prepare the photographic array. The past criminal activity alluded to by the officer was not so closely related to the crime charged as to show scheme or design, nor was it a relevant fact. It should therefore be excluded.
Judgment reversed and cause remanded for a new trial on the charge of third degree burglary.
ENOCH and BERMAN, JJ., concur.