August 23, 2019

Colorado Court of Appeals: Full-Size Mock Up of Crime Scene Admissible Under Four-Part Douglas Test

The Colorado Court of Appeals issued its opinion in People v. Palacios on Thursday, January 25, 2018.

Criminal Law—Fifth Amendment—Photo Identification—Demonstrative Exhibit.

Defendant was convicted of felony murder, aggravated robbery, and other offenses after a drug-deal-turned-robbery ended in the shooting death of the victim by defendant’s accomplice.

On appeal, defendant argued that the court erred in failing to suppress a witness’s identification as the product of an impermissibly suggestive identification procedure because defendant’s photo was placed in position 3 in the photo array after the witness had selected a filler photograph in position 3 from the initial array. The witness, the victim’s girlfriend, witnessed the murder. She had previously selected photos in positions 1, 3 and 5. Position 3 did not have special suggestive properties, as defendant’s argument would apply with equal force if the officer had placed his photo in either position 1 or 5. The mere placement of defendant’s photo in a particular position, without more, does not render the identification procedure impermissibly suggestive. The court properly denied the motion to suppress the girlfriend’s identification.

Defendant also argued on appeal that the court erred in permitting the prosecution to use demonstrative aids because their size was inaccurate, and the inaccuracy rendered the mock-ups misleading and therefore unfairly prejudicial. Here, the prosecution used a full-size mock-up of the garage crime scene as a demonstrative aid during the testimony of a sheriff’s department investigator and the eyewitness drug supplier. The prosecution also referred to a smaller version of the mock-up during closing argument. A demonstrative aid must be authentic, relevant, a “fair and accurate representation of the evidence to which it relates,” and not unduly prejudicial. Here, the record demonstrated that the full-size mock-up was substantially similar to the actual garage, and defendant failed to show any prejudice from the use of such mock-up. Further, defense counsel admitted that the smaller mock-up was accurate. Accordingly, the district court did not err in allowing the prosecution to use the demonstrative aids.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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