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People v. McCants.

2021 COA 138. No. 18CA0435.  Out-of-Court Photograph Identification—Reliability of Police Officer’s Identification.

November 18, 2021

Two police officers who were on patrol saw a man leave a liquor store and get into a vehicle with expired tags. They attempted to pull the vehicle over, but the driver accelerated away and ran a stop sign. Officer M. and his partner, who were patrolling nearby, heard of the incident through dispatch and drove in the direction of the vehicle’s last reported location. They saw the vehicle run a stop sign and start driving toward them. As the vehicle passed Officer M., he was able to see the driver’s face and clothing. He followed the vehicle but eventually lost sight of it.

The vehicle was later found in the parking lot of an apartment complex. Other officers saw mail addressed to defendant in plain view inside the vehicle. Officer M.’s partner found a photo of defendant in the police database, and Officer M. identified him as the vehicle’s driver from the photograph. Defendant was arrested about four months later. At trial, Officer M. testified to his eyewitness identification of defendant. Defendant was convicted of vehicular eluding and reckless driving. Although the prosecutor conceded at sentencing that vehicular eluding and reckless driving should merge, the court entered both convictions at sentencing.

On appeal, defendant argued the trial court erred by refusing to suppress Officer M.’s in-court identification of him following an unduly suggestive out-of-court photograph identification. When assessing the reliability of an out-of-court identification from a photograph, courts must analyze whether the photo array was impermissibly suggestive. The defendant bears the burden of proof on this issue, and if it is met, the prosecution must show that the identification is nevertheless reliable under the totality of the circumstances. Here, the trial court erred by concluding that a police officer’s out-of-court identification is per se reliable and exempt from this analysis.

Defendant also contended that the trial court abused its discretion by admitting other acts evidence under CRE 404(b). Here, the trial court admitted for identity purposes evidence that while defendant was out on bond, he was issued a traffic citation while driving the same car that eluded officers in this case. The court did not abuse its discretion in admitting this evidence after properly analyzing it under CRE 404(b).

Defendant further argued that the court abused its discretion by refusing his reqest to instruct the jury that police officer testimony should be evaluated under the same standard as lay witness testimony. However, the instruction given tracked the standard credibility instruction, so the court did not abuse its discretion by declining to give an additional instruction regarding the credibility of a specific witness.

Lastly, defendant contended, and the People conceded, that the trial court erred by failing to merge the reckless driving and vehicular eluding convictions.

The findings on the suggestiveness of the procedure and reliability of Officer M.’s out-of-court identification were reversed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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