Opinion by JUDGE ENOCH.Page 483
Defendant, Ernest Huguley, appeals his conviction of second degree burglary, felony theft, and conspiracy. We affirm.
Defendant and one Edker Robinson were accused of breaking into an apartment in Denver and stealing a color television set. A tenant of the apartment house, Frieda Brown, worked in a nearby building which faced the apartment house, and which was separated from it by a parking lot. She testified that on the morning of January 30, 1975, she observed two men knock on the door of the manager's apartment and then after receiving no answer, rejoin a third party in a yellow and black car which was parked on the street next to the apartment house and parking lot. About five minutes later, she observed two men force open the door of the manager's apartment and carry the color television to the same car, which was now stopped in the alley by the apartment. Mrs. Brown called the police as soon as the burglars broke in the door. Shortly after the burglary, but before the police had arrived, she discussed the burglary, and the car and its occupants, with the parking lot attendant. At trial, she was able to identify the burglars as being black males, describe the clothing worn by them, and given their relative heights, but she was not able to identify the parties because she had not been close enough to see their faces.
The attendant at the parking lot, James Fling, testified that a yellow car with a black or faded brown top and occupied by three parties had entered his lot that morning, that he went up to the car and talked for three or four minutes to the driver and front seat passenger, whom he identified as defendant and Robinson, and that they backed out of the lot when they learned that they had to pay to park there. Fling also described the clothing that the parties in the front seat were wearing. Fling learned of the burglary shortly after it occurred, when Mrs. Brown talked to him. When Mrs. Brown described the car and its occupants, Fling informed her that he had in fact observed that car because it had entered his parking lot earlier. He testified that 40-45 minutes had elapsed between the time he saw the car in his lot and his conversation with Mrs. Brown.
On March 4, 1975, Fling again saw Robinson, defendant, and another person getting into the same car he had seen on January 30. At that time, Fling stopped, wrote down the license number of the car, and gave it to the victim, who in turn relayed the information to the police. Shortly thereafter, the occupants of the car were detained and defendant and Robinson were subsequently arrested.
Defendant claims that the court erred in refusing to suppress Fling's in-court identification of him as one of the persons in the car which drove into Fling's lot on January 30, 1975. We do not agree.
At the in-camera hearing, just before trial, it was revealed that, after Robinson and defendant had been detained on March 4, Fling was shown a photo lineup of six photographs, including Robinson's, but not including defendant's because a photograph of defendant was not available. At that time, Fling identified Robinson's photograph as that of one of the occupants of the car on both January 30 and March 4. The police officer returned the next day, March 5, with the same set of photographs, except that a photograph which had now been obtained of defendant, was substituted for one of the other photographs in the array. Robinson's picture remained in the array. Fling identified defendant as another occupant of the car he has been on both January 30 and March 4.
The court held that the identification made of Robinson from the photo lineup was valid and that Fling also had an independent basis for that identification. The identification of defendant's photograph was suppressed because the photo lineup was found to be unduly suggestive. However, the court ruled that Fling had an independent basis for his identification of defendant, and that he would therefore be allowed to make an identification of defendant in court.
[1-4] A conviction based on an identification at trial will be set aside only if prior identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood or irreparable misidentification which denies the defendant due process of law. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. Even if there has been an illegal confrontation between a witness and a suspect, the witness may make an in-court identification if there is an independent source upon which to base such an identification. People v. Renfrow, 193 Colo. 131, 564 P.2d 411; Glass v. People, 177 Colo. 267, 493 P.2d 1347. Where there has been an impermissibly suggestive identification procedure conducted by the police, it is the burden of the People to show by clear and convincing evidence that the in-court identification was not the result of suggestion, but was the product of the witness's own recollection. Sandoval v. People, 180 Colo. 180, 503 P.2d 1020. The totality of circumstances must be considered in deciding whether or not an independent basis for the identification exists, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and the following factors, among others, should be considered: The opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the leval of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.
[5] Defendant claims that the People failed to sustain their burden of showing that Fling's identification had a basis independent from the tainted photo lineup. We disagree. While Fling did not observe the actual crime, he did testify as to his opportunity to observe the suspect car and its front seat occupants at close range on January 30. Also, his conversation about the burglary with Mrs. Brown within 45 minutes after his encounter with the vehicle gave him reason to remember this encounter. Most importantly, on March 4, 1975, Fling again observed the car and its occupants, and was sufficiently certain that the car and two of the persons he saw entering it were the same as he had seen on January 30, that he stopped near the car, wrote down its license number, and gave the information to the victim of the burglary. This subsequent "identification" by Fling occurred before the police had ever contracted him. Additionally, his identification of Robinson on March 4 from an untainted photo lineup bolstered Fling's assertion that he could identify some of the people he saw in the car on January 30 and March 4. All of these facts, when considered together, were sufficient for the trial court to find that the evidence was clear and convincing that Fling had a basis independent of the tainted photo lineup to identify defendant, and the court's findings therefore will not be disturbed on review. People v. Knapp, 180 Colo. 280, 505 P.2d 7.
Defendant also contends that it was reversible error for the district attorney to ask defendant whether the offense of possession of burglary tools, which constituted a prior felony conviction, was the offense with which he was originally charged in that case.
Section 13-90-101, C.R.S. 1973, permits the showing of prior felony convictions for the purpose of impeaching the credibility of any witness, including a defendant. However, it is immaterial what the grounds for arrest or the original charges were, and if such information is elicited by improper questions, it may be grounds for reversal. People v. Robles, 183 Colo. 4, 514 P.2d 630. Here, the question was clearly improper. However, because of an immediate objection by his counsel, which was sustained, no information was elicited from defendant as a result of the question and the matter was not pursued further.
[6] Not every improper question or attempt to present improper evidence mandates a new trial. See, e.g., People v. Goff, 187 Colo. 103, 530 P.2d 514; People v. Knapp, supra; Lee v. People, 170 Colo. 268, 460 P.2d 796. The decision as to whether the prosecutor's conduct mandated a new trial was within the sound discretion of the trial court, and will not be disturbed unless there has been a manifest abuse of discretion. Lee, supra. Defendant has the burden of showing prejudice in this case, and his conjectures about the possible prejudicial effects of the question are insufficient to sustain this burden. See Segura v. People, 159 Colo. 371, 412 P.2d 227. The court instructed the jury that evidence which had been stricken had to be disregarded and that statements of counsel were not evidence. We must presume the jury followed this instruction, Goff, supra, and therefore we find no abuse of discretion by the trial court in refusing to grant defendant a new trial.
Judgment affirmed.
JUDGE RULAND concurs.
JUDGE KELLY dissents.