Opposition Brief — James Joseph Garner, Petitioner v. Colorado

NO. 19-75

In the

Supreme Court of the United States

________________

JAMES JOSEPH GARNER,

Petitioner,

v.

COLORADO,

________________

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Colorado

________________

RESPONDENT’S BRIEF IN OPPOSITION

________________

PHILIP J. WEISER

Attorney General

ERIC R. OLSON

Solicitor General

Office of the Colorado

Attorney General

1300 Broadway, 10th Floor

Denver, Colorado 80203

andrew.cooper@coag.gov

(720) 508-6000

L. ANDREW COOPER

Deputy Attorney

General

Counsel of Record*

JILLIAN J. PRICE

Senior Assistant

Attorney General

Counsel for Respondent

September 19, 2019

i

QUESTION PRESENTED

In a series of cases culminating in Neil v. Biggers,

409 U.S. 188 (1972), this Court set forth “the approach

appropriately used to determine whether the Due

Process Clause requires suppression of an eyewitness

identification tainted by police arrangement.” Perry v.

New Hampshire, 565 U.S. 228, 238 (2012). In Biggers,

the Court adopted a two-part test requiring trial

courts to ask (1) whether the pretrial identification

procedure was unnecessarily suggestive and, if it was,

(2) whether the procedure “gave rise to a substantial

likelihood of irreparable misidentification”—i.e.,

whether the identification was nonetheless reliable.

Biggers, 409 U.S. at 198, 201. In Perry, this Court

clarified that pretrial screening for reliability is

“inapposite in cases … in which the police engaged in

no improper conduct.” 565 U.S. at 242. In those

situations, “vigorous cross-examination, protective

rules of evidence, and jury instructions” will “suffice to

test reliability.” Id. at 233.

Here, eyewitnesses had not been able to identify

the defendant in pretrial photo lineups, but identified

him while testifying at trial. Few jurisdictions have

addressed that scenario since Perry, but of those that

have, nearly all agree that Biggers does not apply to

courtroom identifications, absent some improper

conduct by law enforcement.

The question presented is:

Whether, where there is no claim that either

police or prosecutors engaged in improper conduct, a

first-time in-court eyewitness identification must be

prescreened by the trial judge for reliability.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ..................................... i

TABLE OF AUTHORITIES ................................. iii

INTRODUCTION .................................................. 1

STATEMENT OF THE CASE ............................... 3

REASONS FOR DENYING THE PETITION ...... 7

I.

Petitioner overstates the split: few courts

have considered the issue since Perry. ........ 8

A. Most jurisdictions to consider the issue

since Perry agree with Colorado. ............. 9

B. Only one jurisdiction since Perry has

followed Petitioner’s approach. ............. 10

II. This case is a poor vehicle for addressing

the question presented. .............................. 13

A. Under Perry, the Colorado Supreme

Court’s decision is correct. ..................... 13

B. There was ample evidence from which

the jury could decide Petitioner’s guilt. 15

III. Petitioner’s arguments on the merits are

flawed.......................................................... 19

A. Petitioner’s due process argument

misapprehends Perry. ............................ 19

B. Petitioner overstates the degree of

consensus among social scientists. ........ 22

CONCLUSION ..................................................... 23

iii

TABLE OF AUTHORITIES

CASES

Benjamin v. Gipson, 640 Fed.Appx. 656 (9th

Cir. 2016) ................................................................. 10

Boone v. Menifee, 387 F.Supp.2d 338 (2005) ............ 17

Byrd v. State, 25 A.3d 761 (Del. 2011) ........................ 9

Campbell v. People, 814 P.2d 1 (Colo. 1991) ............. 23

City of Billings v. Nolan, 383 P.3d 219 (Mont.

2016) ........................................................................ 11

Coleman v. Alabama, 399 U.S. 1 (1970) ..................... 2

Com. v. Walker, 92 A.3d 766 (Pa. 2014).................... 23

Cordrey v. Prisoner Review Bd., 21 N.E.3d 423

(Ill. 2014) ................................................................. 17

Crawford v. Washington, 541 U.S. 36 (2004) ........... 21

Delaware v. Fensterer, 474 U.S. 15 (1985) ................ 21

Dowling v. United States, 493 U.S. 342 (1990) ........ 19

Fairley v. Commonwealth, 527 S.W.3d 792 (Ky.

2017) .......................................................................... 9

Foster v. California, 394 U.S. 440 (1969) ........... 14, 15

Galloway v. State, 122 So.3d 614 (Miss. 2013) ........... 9

Hogan v. State, 908 P.2d 925 (Wyo. 1995) .................. 9

In re W.K., 323 A.2d 442 (D.C. 1974) .......................... 9

Kennaugh v. Miller, 289 F.3d 36 (2d Cir. 2002) ......... 9

Lee v. Foster, 750 F.3d 687 (7th Cir. 2014) ......... 11, 12

iv

Manson v. Brathwaite, 432 U.S. 98 (1977) ........... 1, 18

Moore v. Illinois, 434 U.S. 220 (1977) ....................... 22

Neil v. Biggers, 409 U.S. 188 (1972) ........................... 1

People v. Monroe, 925 P.2d 767 (Colo. 1996) ........ 6, 21

People v. Shreck, 22 P.3d 68 (Colo. 2001) ................. 23

People v. Walker, 666 P.2d 113 (Colo. 1983) ....... 14, 15

Perry v. New Hampshire, 565 U.S. 228 (2012) . passim

Ralston v. State, 309 S.E.2d 135 (Ga. 1983) ............... 9

Simmons v. United States, 390 U.S. 377 (1968) ......... 1

State v. Clausell, 580 A.2d 221 (N.D. 2007) ............... 9

State v. Dickson, 141 A.3d 810 (Conn. 2016) 11, 12, 16

State v. Goudeau, 372 P.3d 945 (Ariz. 2016) .............. 9

State v. Green, 250 S.E.2d 197 (N.C. 1978) ................ 9

State v. Hickman, 330 P.3d 551 (Or. 2014) ...... passim

State v. King, 934 A.2d 556 (N.H. 2007) ..................... 9

State v. Lewis, 609 S.E.2d 515 (S.C. 2005) ................. 9

State v. Ramirez, 409 P.3d 902 (N.M. 2017) ............... 9

Strickland v. Washington, 466 U.S. 668 (1984) ....... 21

United States v. Archibald, 734 F.2d 938 (2d

Cir. 1984) ................................................................... 9

United States v. Correa-Osorio, 784 F.3d 11

(1st Cir. 2015).......................................................... 12

United States v. Domina, 784 F.2d 1361 (9th

Cir. 1986) ............................................................. 9, 20

v

United States v. Greene, 704 F.3d 298 (4th Cir.

2013) ........................................................................ 10

United States v. Hughes, 562 Fed.Appx. 393

(6th Cir. 2014) ......................................................... 10

United States v. Libby, 461 F. Supp.2d 3 (D.C.

Cir. 2006) ................................................................. 22

United States v. Morgan, 248 F.Supp.3d 208

(D.D.C. 2017) ........................................................... 11

United States v. Rogers, 126 F.3d 655 (5th Cir.

1997) .......................................................................... 9

United States v. Thomas, 849 F.3d 906 (10th

Cir. 2017) ................................................................. 10

United States v. Whatley, 719 F.3d 1206 (11th

Cir. 2013) ................................................................. 10

Watkins v. Sowder, 449 U.S. 341 (1981) ................... 22

White v. State, 403 So. 2d 331 (Fla. 1981) .................. 9

Young v. State, 374 P.3d 395 (Alaska 2016) ............... 9

RULES

Colo. R. Crim. P. 41.1 ................................................ 21

FRE 201 ..................................................................... 17

TREATISES

C.A. Carlson & M.A. Carlson, A

Distinctiveness-Driven Reversal of the

Weapon-Focus Effect, 8 Applied Psychol.

Crim. Just. 36 (2012) .............................................. 22

vi

E.J. Mandery, Due Process Considerations of

In-Court Identifications, 60 Alb. L. Rev. 389

(1996) ....................................................................... 22

J.M. Fawcett, et al., Of Guns and Geese: A

Meta-Analytic Review of the ‘Weapon Focus’

Literature, 19 Psychol., Crime & L. 35 (2013) ....... 22

Jules Epstein, Irreparable Misidentifications

and Reliability: Reassessing the Threshold

for Admissibility of Eyewitness Identification,

58 Vill. L. Rev. 69 (2013) ........................................ 18

INTRODUCTION

Concerned that improper police procedures could

lead eyewitnesses to falsely identify criminal suspects,

this Court announced a two-part reliability test to

protect due process in Neil v. Biggers, 409 U.S. 188

(1972). Under that test, a court first determines

whether the police procedure was impermissibly

suggestive. If so, the court then considers, under the

totality of the circumstances, whether the suggestive

confrontation created a very substantial likelihood of

misidentification. See Simmons v. United States, 390

U.S. 377, 384 (1968); Manson v. Brathwaite, 432 U.S.

98, 116 (1977). Reliability is assessed by examining:

(1) the witness’s opportunity to view the criminal at

the time of the crime, (2) the witness’s degree of

attention, (3) the accuracy of the witness’s prior

description of the criminal, (4) the witness’s level of

certainty at the confrontation, and (5) the length of

time

between

the

crime

and

the

confrontation. Biggers, 409 U.S. at 199–200. A court

then weighs “the corrupting effect of the suggestive

identification.” Manson, 432 U.S. at 114.

Recently, this Court clarified that this reliability

test applies only if the identification resulted from

improper police conduct. In Perry v. New Hampshire,

565 U.S. 228 (2012), an eyewitness spontaneously

identified the defendant shortly after police arrived on

the scene but was unable to identify him later in a

photo array. Rejecting the defendant’s challenge to

using the identification at trial, this Court held that

the due process check for reliability comes into play

only if the defendant first establishes improper police

conduct: the very purpose of the check is “to avoid

2

depriving the jury of identification evidence that is

reliable, notwithstanding improper police conduct.”

Id. at 241 (emphasis in original). That deterrence

rationale is “inapposite in cases … in which the police

engaged in no improper conduct,” as the due process

check is linked “not to suspicion of eyewitness

testimony generally, but only to improper police

arrangement of the circumstances surrounding an

identification.” Id. at 242 (citing Coleman v. Alabama,

399 U.S. 1 (1970)).1 This Court therefore concluded, in

Perry, that absent improper police conduct eyewitness

identifications are admissible, with reliability to be

protected through a trial’s traditional safeguards:

When no improper law enforcement activity is

involved, we hold, it suffices to test reliability

through the rights and opportunities

generally designed for that purpose, notably,

the presence of counsel at postindictment

lineups,

vigorous

cross-examination,

protective rules of evidence, and jury

instructions on both the fallibility of

eyewitness

identification

and

the

requirement that guilt be proved beyond a

reasonable doubt.

In Coleman, the defendants argued that a witness’s in-court

identifications violated due process because a pretrial

stationhouse lineup was “so unduly prejudicial and conducive to

irreparable misidentification as fatally to taint [the later

identifications.]” 399 U.S. at 4. However, there was no due

process violation because nothing “the police said or did prompted

[the witness’s] virtually spontaneous identification of [the

defendants].” Id. at 6

1

3

Id. at 233.

Perry’s holding was not confined to pretrial

identifications: this Court referred generally to

“eyewitness identification[s].” Id. at 236, 244. Thus

while Perry did not specifically address the issue

raised here—whether Biggers applies to first-time incourt identifications—its rationale applies. And the

Colorado Supreme Court’s application of Perry is

unremarkable. Three circuit courts and six other

states have applied Perry in similar circumstances,

making Colorado the latest in a growing majority to

decide that Biggers does not apply to first-time incourt identifications. Nor are there any remarkable

facts which compel further review of the Colorado

Supreme Court’s decision; indeed, there was other

evidence in the record to show that Petitioner, and no

one else, was the shooter. Further review by this Court

is unjustified.

STATEMENT OF THE CASE

1. Factual Background. Three brothers sat at a

table celebrating a birthday at their local bar. R. Tr.

108 (Aug. 14, 2012). Seated near them was another

group of four men and three women; it is undisputed

that Petitioner and his girlfriend were part of that

group. Pet. 4; R. Tr. 30, 61–62, 116–17 (Aug. 14, 2012);

R. Tr. 87, 158 (Aug. 15, 2012). R. Tr. 19–20 (Aug. 17,

2012). Near closing time, a fight broke out between the

two groups and someone pulled a gun. R. Tr. 124 (Aug.

14, 2012). All three of the brothers were shot, but

survived. R. Tr. 124 (Aug. 14, 2012); R. Tr. 92, 165

(Aug. 15, 2012). Petitioner and his group fled the bar.

R. Tr. 26 (Aug. 15, 2012).

4

Police interviewed the brothers just after the

shooting and each of them gave a general description

of the shooter. R. Vol. I, pp. 4–10. The first brother said

that a man in the shooter’s group was wearing a pair

of prescription glasses. R. Vol. I, p. 6. A friend of the

brothers, G.R., said that the shooter was “wearing a

pair of prescription glasses with black frames.” R. Vol.

I, p. 6. Several other witnesses confirmed that

Petitioner wears glasses, and DNA samples taken

from black frame eyeglasses found at the bar matched

Petitioner. R. Vol. I, pp. 4, 8, 10. The second brother

said that the shooter was wearing a dark colored shirt

with a number on it. R. Vol. I, p. 9. Photos of Petitioner

taken at the bar on the night of the shooting show that

Petitioner was wearing a dark colored NFL jersey;

while the photos do not depict his entire torso, football

jerseys of this sort typically include a player’s number.

R. Env. 1, Def. Ex. C, D; R. Tr. 181 (Aug. 16, 2012).

The third brother told police that the shooter “was

wearing black clothing, and was shorter than him,

about 5’05” tall.” R. Vol. I, p. 8.

The brothers reviewed photographic arrays which

included Petitioner but none of them identified the

shooter at any point before trial. R. Vol. I, pp. 4–10;

Pet. App. 5a. At trial, however, each of them

spontaneously identified Petitioner as the shooter. R.

Tr. 148–49 (Aug. 14, 2012); R. Tr. 81–83, 162–63 (Aug.

15, 2012); Pet. App. 5a–6a.

Petitioner was charged with attempted murder of

each brother, first-degree assault of two of them,

possession of a weapon by a previous offender, and

crime of violence sentence enhancers. R. Vol. I, pp. 12–

16. His theory of defense was general denial: he

5

admitted being at the bar, but shooting anyone. The

jury acquitted Petitioner of attempted murder but

found him guilty of two counts of attempted reckless

manslaughter; first degree assault; and reckless

second-degree assault. R. Vol. I, pp. 12–16. He was

sentenced to thirty-two years in prison. R. Vol. I, pp.

148–49.

2. Proceedings in the Colorado Court of

Appeals. Petitioner directly appealed his convictions.

Pet. App. 48a. He argued that the trial court violated

his right to due process by allowing the victims to

identify him in court despite the fact that none of them

could make a pretrial identification.

The Court of Appeals affirmed, holding that

“[w]hile the inability of a witness to identify the

defendant in a photographic lineup is relevant and

certainly grist for cross-examination, it does not, as a

matter of law, preclude him from making an

identification upon seeing the defendant in court.” Pet.

App. 55a. “Instead, the previous inability to identify

goes to the weight of his identification testimony

rather than its admissibility.” Id. In reaching this

conclusion, the Court of Appeals noted that Biggers

“deals with the exclusion of impermissible pretrial

identifications and the in-court identifications that

follow them” and that “[t]he majority of courts

addressing this issue have determined that [Biggers]

does not apply to in-court identifications.” Pet. App.

51a.

Therefore, because “‘[t]he exclusionary rule has

not been extended to in-court identifications alleged to

be suggestive simply because of the typical trial

setting,’” the Court of Appeals held that Petitioner’s

6

right to due process was not violated. Pet. App. 51a–

52a (quoting People v. Monroe, 925 P.2d 767, 775

(Colo. 1996)).

3. Proceedings in the Colorado Supreme

Court. The Colorado Supreme Court granted

certiorari and affirmed the Court of Appeals. Pet. App.

1a. Applying Perry v. New Hampshire, the majority

concluded that due process does not require judicial

prescreening of first-time in-court identifications not

preceded by suggestive out-of-court procedures. Pet.

App. 32a.

The majority came to this conclusion after tracing

this Court’s development of the Biggers reliability test.

Pet. App. 12a–17a. The Biggers test was designed not

only to ensure the reliability of eyewitness

identifications but also to deter law enforcement from

using improper lineups, show-ups, and photo arrays.

Pet. App. 23a.

Next, the majority examined Perry. Unlike the

Biggers line of cases, the out-of-court identification in

Perry did not result from improper police procedures

and, therefore, the reliability of the testimony was for

the jury to determine. Pet. App. 21a–22a (citing Perry,

565 U.S. at 234–35). The majority recognized that

although “Perry did not directly answer whether

Biggers applies to a first-time in-court identification,”

it nevertheless “made clear that Biggers prescreening

is not required in the absence of improper state

action.” Pet. App. 21a, 31a (emphasis in original).

Applying the reasoning of Perry, the majority

concluded that Biggers is inapposite in cases like

Petitioner’s, where the state did not engage in

improper conduct. Pet. App. 30a–32a. Because

7

Petitioner alleged no impropriety regarding the

pretrial photographic arrays, and because the record

revealed nothing unusually suggestive about the

circumstances of the in-court identifications, there

was no due process violation. Pet. App. 32a. Rather,

the “ordinary trial safeguards are the appropriate

checks on identifications made under suggestive

circumstances not attributable to improper law

enforcement conduct.” Id.

The dissent agreed with the majority that

Perry foreclosed the conclusion that all in-court

identifications should be screened, but argued that it

did not foreclose judicial screening of some in-court

identifications. Pet. App. 35a (Hart, J., dissenting).

Relying primarily on social science publications cited

by the amici, the dissent would have held that a firsttime in-court identification would always require

judicial prescreening applying the Biggers test. Pet.

App. 37a–38a, 44a.

This Petition was then filed.

REASONS FOR DENYING THE PETITION

In the wake of Perry, few jurisdictions have had

the opportunity to address whether the Biggers

reliability test applies in the context of routine incourt identifications where law enforcement has

engaged in no impropriety, and the only “suggestive”

circumstances are those arising from the defendant’s

right to be present and confront testifying witnesses.

Perry clarified that Biggers only applies where

improper

police

conduct

created

suggestive

circumstances, and if this Court ever addresses the

question presented here, it should do so only after a

8

longer period of post-Perry percolation. Most

jurisdictions to consider the issue after Perry support

the analysis adopted by Colorado here—indeed, after

Perry only one jurisdiction has followed Petitioner’s

favored approach.

And this case is a poor vehicle for considering the

question presented. The Colorado Supreme Court’s

resolution of the case is correct under Perry. There is

simply no indication that law enforcement improperly

created suggestive circumstances: no one told the

witnesses either before or during their testimony that

the shooter would be in the courtroom. The only

“suggestiveness” here stemmed from the routine

circumstance of the defendant’s right to be present

while the witnesses were testifying. While Petitioner

compares that circumstance to a one-on-one, pre-trial

“show-up,” the situations are very different, and

likewise the social science research cited by Petitioner

does not undermine the result reached here. It is

undisputed that Petitioner was one of the small group

of men who were involved in this shooting, and ample

physical evidence corroborated Petitioner’s guilt. The

jury could weigh the strength of the courtroom

identifications, along with the other testimony and

evidence, consistent with the constitution.

I.

Petitioner overstates the split: few courts

have considered the issue since Perry.

To suggest the existence of a deep and mature

jurisdictional split, Petitioner cites over a dozen cases

that were decided before this Court’s 2012 opinion in

9

Perry.2 Those older cases are relatively uninstructive:

because they were decided prior to Perry, they give

little indication about whether the jurisdictions that

followed Petitioner’s favored approach would still do

so today. The true nature of the current split can only

be divined by focusing on the cases decided after Perry.

A. Most jurisdictions to consider the issue

since Perry agree with Colorado.

Of the cases Petitioner relies on to suggest a split,

only twelve were decided after Perry. And of those

twelve, nine support Colorado’s decision here.

In addition to Colorado, six other states have

applied Perry’s rationale and held that, under the Due

Process Clause, in-court identifications do not require

judicial prescreening. Young v. State, 374 P.3d 395,

411–12 (Alaska 2016) (but announcing a new, more

protective test under state constitution for future

cases); State v. Goudeau, 372 P.3d 945, 981 (Ariz.

2016); Fairley v. Commonwealth, 527 S.W.3d 792,

798–800 (Ky. 2017); Galloway v. State, 122 So.3d 614,

664 (Miss. 2013); State v. Ramirez, 409 P.3d 902, 911–

13 (N.M. 2017); State v. Hickman, 330 P.3d 551, 571–

72 (Or. 2014).

2 See Pet. 13, citing Kennaugh v. Miller, 289 F.3d 36 (2d Cir.

2002); United States v. Archibald, 734 F.2d 938 (2d Cir. 1984);

United States v. Rogers, 126 F.3d 655 (5th Cir. 1997); State v.

Clausell, 580 A.2d 221 (N.D. 2007); Hogan v. State, 908 P.2d 925

(Wyo. 1995); see also Pet 14, citing United States v. Domina, 784

F.2d 1361 (9th Cir. 1986); Byrd v. State, 25 A.3d 761 (Del. 2011);

In re W.K., 323 A.2d 442 (D.C. 1974); White v. State, 403 So. 2d

331 (Fla. 1981); Ralston v. State, 309 S.E.2d 135 (Ga. 1983); State

v. Green, 250 S.E.2d 197 (N.C. 1978); State v. King, 934 A.2d 556

(N.H. 2007); State v. Lewis, 609 S.E.2d 515 (S.C. 2005).

10

Three federal circuits—the Sixth, Tenth, and

Eleventh—have reached the same conclusion.

Notably, those circuits had all applied Biggers to firsttime in-court identifications before Perry, but changed

course afterwards. The Sixth Circuit concluded that,

in light of Perry, the “due process rights of defendants

identified in the courtroom under suggestive

circumstances are generally met through the ordinary

protections in trial.” United States v. Hughes, 562

Fed.Appx. 393, 398 (6th Cir. 2014). The Tenth Circuit

recognized that “our prior precedent indicates that a

judicial reliability assessment is necessary” but that

“such a rule is no longer viable” in light of Perry.

United States v. Thomas, 849 F.3d 906, 910–11 (10th

Cir. 2017). And the Eleventh Circuit determined that

Perry “removed the foundation upon which [its prior

cases] rested” when it “expressly disapproved the idea

that in-court identifications would be subject to

prescreening.” United States v. Whatley, 719 F.3d

1206, 1216 (11th Cir. 2013). 3

B. Only one jurisdiction since Perry has

followed Petitioner’s approach.

Since Perry was announced, only five jurisdictions

have continued to apply Biggers to in-court

identifications. See United States v. Greene, 704 F.3d

298 (4th Cir. 2013); Lee v. Foster, 750 F.3d 687 (7th

3 Without deciding the issue, the Ninth Circuit has indicated

that it would likely reach a similar result. See Benjamin v.

Gipson, 640 Fed.Appx. 656, 659 (9th Cir. 2016) (rejecting

ineffective assistance of counsel claim for failure to move to

suppress first-time in-court identification because, given Perry,

such a motion was likely to have been unsuccessful).

11

Cir. 2014); United States v. Morgan, 248 F.Supp.3d

208 (D.D.C. 2017); State v. Dickson, 141 A.3d 810,

827–28 (Conn. 2016); City of Billings v. Nolan, 383

P.3d 219 (Mont. 2016). But even those cases do not

clearly support Petitioner’s position. Neither Greene

nor Nolan address Perry in their analysis; indeed,

neither even cites Perry. And the cases from the

remaining jurisdictions provide Petitioner little

support.

The U.S. District Court for the District of

Columbia decided that even if an in-court

identification procedure constitutes state action

under Perry, the application of Biggers should be

limited to circumstances where “the government

d[oes] not have a basis for believing that the witness

could make a reliable identification,” and the

identification is “merely an attempt to circumvent the

due

process

constraints

on

one-man

showups.” Morgan, 248 F.Supp.3d at 213 n.2. This is

nothing more than a different way of saying,

“improper law enforcement action” and adds little to

the debate.

The Seventh Circuit determined that not all firsttime in-court identifications are impermissibly

suggestive and specifically held that a witness’s

inability to identify the defendant pretrial is not

enough to trigger a Biggers analysis. Lee, 750 F.3d at

691-92. The court did not discuss or analyze Perry in

any depth; it cited Perry once, and only for the general

proposition that due process prohibits evidence when

it is so extremely unfair that its admission violates

fundamental concepts of justice. Id. at 691. The

Seventh Circuit nonetheless recognized, as Colorado

12

did here, that the defendant’s mere presence at the

defense table is insufficient to establish a due process

violation. Id.; see also Pet. App. 31a (“The inherent

suggestiveness of an ordinary courtroom setting does

not, without more, give rise to improper state action.”).

Connecticut is the only jurisdiction that, since

Perry, follows Petitioner’s approach. The Connecticut

Supreme Court observed that a prosecutor’s conduct

during trial may constitute improper state action;

therefore, Perry did not completely foreclose the

application of Biggers to first-time in-court

identifications. The logical corollary to this rationale

is that, absent prosecutorial misconduct, Biggers does

not apply to in-court identifications. Dickson, 141 A.3d

at 827–28. Connecticut, however, also held that in

cases where identity is an issue, a first-time in-court

identification would be so suggestive as to “implicate

due process protections and must be prescreened by

the trial court.” Id. at 822–25.

So of the five jurisdictions that have continued to

apply Biggers, only two have discussed Perry in any

meaningful way, and only one clearly supports

Petitioner’s position. Those decisions do not create as

deep a split as Petitioner claims. And only a small

fraction of jurisdictions have addressed this issue in

the wake of Perry. The remaining state and federal

courts have either taken no position on Perry’s

applicability or have not yet had the opportunity to

address it. See, e.g., United States v. Correa-Osorio,

784 F.3d 11, 19–22 (1st Cir. 2015) (declining to

address the question because “[o]ne could argue either

way” whether Biggers applies to in-court

13

identifications after Perry, and defendant’s claim

would fail under either analysis).

Given the paucity of decisions on this question

coupled with the varied rationales of those

jurisdictions that have rejected Perry, this Court

should await further development of the law before

granting review.

II. This case is a poor vehicle for addressing the

question presented.

This case is a poor vehicle for the court’s

consideration because the Colorado Supreme Court’s

decision was correct under Perry, and there was ample

evidence—apart from the courtroom identifications—

from which the jury could decide Petitioner’s guilt.

A. Under Perry, the Colorado Supreme

Court’s decision is correct.

Contrary to Petitioner’s argument, see Pet. 18, the

Colorado Supreme Court did not hold that due process

is never implicated by a first-time in-court

identification. Instead, it was careful to explain that

due process is not implicated where: (1) there is no

impermissibly suggestive pretrial identification

procedure arranged by law enforcement; and (2) where

nothing beyond the inherent suggestiveness of the

ordinary courtroom setting made the in-court

identification itself constitutionally suspect. Pet. App.

4a.

This holding recognizes the appropriateness of

judicial prescreening of a first-time in-court

identification under certain circumstances. For

example, in People v. Walker, 666 P.2d 113, 119–20

14

(Colo. 1983), the prosecution specifically told the

victim that the defendant on trial was “the shotgunwielding robber.” This constituted improper law

enforcement action which went beyond the inherent

suggestiveness of the ordinary courtroom setting. The

Colorado Supreme Court determined that judicial

prescreening was appropriate.4 Id. Here, by contrast,

the prosecutors did not tell the victims the shooter

would be in the courtroom, or otherwise suggest that

they should identify Petitioner as the culprit. Due

process therefore was not implicated.

The circumstances here simply did not require

pretrial screening. The last time this Court found a

due process violation based on eyewitness

identification testimony was fifty years ago, in Foster

v. California, 394 U.S. 440 (1969). In Foster, police

arranged two in-person lineups. Id. at 442–43. There

were only three subjects in the first lineup and the

defendant “stood out from the other two men by the

contrast of his height and by the fact that he was

wearing a leather jacket similar to that worn by the

robber.” Id. at 443 (citation omitted). When this

lineup “did not lead to positive identification,” police

permitted an extended “one-to-one confrontation”

between the victim and the defendant, which still

yielded only a “tentative” identification. Id. Then, a

second lineup was arranged in which the defendant

“was the only person in this lineup who had also

participated in the first lineup.” Id. After this second

lineup, the victim made a “definite identification.”

Id. This Court described the facts in Foster as

The identification in Walker was ultimately deemed reliable

under the Biggers test. Id.

4

15

presenting “a compelling example of unfair lineup

procedures.” Id. at 442.

By contrast, the circumstances differ from Foster,

and do not rise to the level of a due process violation.

Here, Petitioner sat at counsel table and wore a shirt

and tie. See R. Tr. 163 (Aug. 15, 2012). The victims

identified him as the shooter spontaneously, without

any prompting from the prosecution. R. Tr. pp. 81,

162–63 (Aug. 15, 2012). There is nothing in the record

to suggest that the prosecution engaged in any

improper behavior, and Petitioner has not alleged any

such misconduct. Because there was no improper law

enforcement action, there was no need to prescreen

the identifications. See Perry, 565 U.S. at 233; cf.

Walker, 666 P.2d at 119–20.

B. There was ample evidence from which

the jury could decide Petitioner’s guilt.

It is undisputed that Petitioner was a member of

a small group of men who were involved in the

shooting. Petitioner alleges that his group contained

four men (including Petitioner) and three women. Pet.

4. This is consistent with the testimony of the victims

and other witnesses, all of whom said that the

shooter’s group contained four to five males and two to

three females. R. Vol. I, pp. 5, 7, 9. It is undisputed

that the shooter was a man and Petitioner was one of

the men in that group. Accordingly, this was not a

case where the shooter could have been any random

member of the public; he was instead one of a discrete

set of people who were at the bar.

These facts stand in sharp contrast to a case in

which the shooter could have been anyone. For

example, in Dickson, the defendant and two other men

16

made online arrangements to sell a vehicle. 141 A.3d

at 817. The victims drove to a parking lot where the

transaction was to take place and were robbed and

assaulted when they arrived. Id. at 817–18. Two of the

assailants ran off while the third shot one of the

victims. The shooting victim was unable to select

Dickson from a photo array but identified him for the

first time at trial. Id. at 818. Given the anonymous

nature of online transactions and the fact that the

victims did not know who the sellers were, the shooter

could have been anyone. By contrast, the shooter here

was one of the four men in the bar.

And here, there was ample evidence to prove that

Petitioner—and no one else—shot the victims.

Contrary to Petitioner’s assertions, the prosecution’s

case did not “hinge” on the in-court identifications.

The prosecution presented significant additional

evidence of identity. The descriptions provided to

police just after the shooting match Petitioner and are

corroborated by other evidence.

The first victim told police that he did not see the

shooter; but he also said one of the men in the shooter’s

group was “wearing a pair of prescription glasses.” R.

Vol. I, p. 6. Several other witnesses confirmed that

Petitioner wears “prescription glasses with D&G

printed on the bow of the frames.” R. Vol. I, pp. 5, 6, 8,

10. The glasses found at the bar matched that

description, and DNA samples taken from those

glasses matched Petitioner. Id.

The second victim said that the shooter was

wearing a dark colored shirt with a number on it. R.

Vol. I, p. 9. Defense Exhibits C and D are pictures of

Petitioner taken at the bar on the night of the

17

shooting; both show that Petitioner was wearing a

dark colored NFL jersey, which are customarily

adorned with a number. R. Env. I, Def. Ex. C, D; R.

Tr. 181 (Aug. 16, 2012).

The third victim told police that the shooter “was

wearing black clothing, and was shorter than him,

about 5’05” tall.” R. Vol. I, p. 8. The arrest warrant

states that Petitioner is 5’08” tall (see id., p. 1);

however, the Colorado Department of Corrections,

which has custody of Petitioner, reports that he is

5’06” tall.5

G.R., the victims’ friend, described the shooter as

an “Hispanic male, 5’06” – 5’08” tall, thin build,

dressed all in black, having a mustache and wearing a

pair pf prescription glasses with black frames.” R. Vol.

I, p. 6. As previously noted, other witnesses confirmed

that Petitioner wears glasses and DNA samples taken

from the glasses found at the bar matched Petitioner.

R. Vol. I, pp. 8, 10).

Taken as a whole, this evidence dispels any

concern that Petitioner was misidentified. The

See http://www.doc.state.co.us/oss/ as accessed on August 20,

2019. This Court has discretion to take judicial notice of the

Colorado Department of Corrections’ records, which are public

records capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned. See

FRE 201; see also Boone v. Menifee, 387 F.Supp.2d 338, 343 n.4

(2005) (a court may take judicial notice of information of a

“prisoner locator” website, such as those maintained by the

Bureau of Prisons and the state Department of Corrections);

Cordrey v. Prisoner Review Bd., 21 N.E.3d 423, 426 n.3 (Ill. 2014)

(a

court

may

take

judicial

notice

of

Department of Corrections records because they are public

documents).

5

18

constitutional standard for reliability is designed only

to prevent a jury from being presented with a

completely spurious identification:

[T]he direction to suppression courts is not to

conclude that an identification is actually

reliable in terms of being correct, but that

there is a basis by which a jury that heard that

identification testimony could weigh it

intelligently through the adversary trial

process and conclude that it was in fact

accurate.

Jules Epstein, Irreparable Misidentifications and

Reliability:

Reassessing

the

Threshold

for

Admissibility of Eyewitness Identification, 58 Vill. L.

Rev. 69, 71 (2013). This description of the standard

finds support in Brathwaite:

[W]e cannot say that under all the

circumstances of this case there is “a very

substantial

likelihood

of

irreparable

misidentification.” Short of that point, such

evidence is for the jury to weigh. We are

content to rely upon the good sense and

judgment of American juries, for evidence

with some element of untrustworthiness is

customary grist for the jury mill. Juries are

not so susceptible that they cannot measure

intelligently the weight of identification

testimony that has some questionable

feature.

432 U.S. at 116 (citation omitted). Similarly, in Perry,

this Court held that the Due Process Clause restricts

admissibility “[o]nly when evidence ‘is so extremely

unfair that its admission violates fundamental

19

conceptions of justice.’” 565 U.S. at 237 (quoting

Dowling v. United States, 493 U.S. 342, 352 (1990)).

Here substantial evidence corroborates the

courtroom identifications and under this Court’s

precedent the strength of the identifications was a

question for the jury. This case is not a good candidate

for further review.

III. Petitioner’s arguments on the merits are

flawed.

Petitioner’s arguments on the merits of his theory

are flawed. He both misapprehends this Court’s

precedent and misconstrues the degree of consensus

among social scientists regarding identifications.

A. Petitioner’s due process

misapprehends Perry.

argument

Despite Perry’s holding that Biggers applies only

to cases involving law enforcement misconduct,

Petitioner contends that “due process scrutiny must be

brought to bear whenever an in-court identification

procedure impermissibly gives rise to a substantial

likelihood of misidentification.” Pet. 20. His efforts to

distinguish Perry, however, are unavailing.

To begin, Petitioner’s argument that courtroom

identifications involve more “state action” than that

present in Perry is inaccurate. True, for an in-court

identification to occur, “[t]he prosecution must bring a

particular defendant to trial and call the eyewitness to

the stand for questioning.” Pet. 25. But in Perry, police

officers detained the defendant at the scene and were

asking the witness to describe the assailant when the

witness made the identification. 565 U.S. at 234. That

20

was not enough: none of the police conduct was

improper. Id. at 231–45 (the word “improper” appears

in Perry a total of seventeen times.) Likewise here, the

prosecutors at trial did not use leading questions,

point in Petitioner’s direction, stand behind him while

asking for an identification, or otherwise improperly

suggest that the witnesses should proclaim Petitioner

to be their assailant. To the extent Petitioner’s

presence in the courtroom was suggestive of his guilt,

that presence arose not from “improper” law

enforcement conduct, but rather from a criminal

process that honored his right to be present and

confront the witnesses as they testified against him.

And Petitioner cannot persuasively distinguish

Perry by saying that it involved an out-of-court

identification, and that jurors are particularly “illequipped” to properly weigh the strength of

identifications that instead occur in court. Pet. 27. If

anything, jurors are better positioned to weigh the

likely accuracy of identifications when they occur in

court than when they occur out of court.

First, the jury sees the in-court identification

procedure.

“[W]hen

a

first-time

eyewitness

identification occurs in court and no suggestive

pretrial identification procedures were administered

by the state, courts generally have concluded that the

factfinder is better able to evaluate the reliability of

the identification because he or she can observe the

witness’s demeanor and hear the witness’s

statements during the identification process.”

Hickman, 330 P.3d at 564 (emphasis in original); see

also Domina, 784 F.2d at 1368 (stating that, when a

witness identifies a defendant at trial, that “testimony

21

has generally been held admissible unless tainted by

the prior suggestive identification process”).

Second, an in-court identification “is subject to

immediate challenge through cross-examination.”6

Hickman, 330 P.3d at 564. Defense counsel is able to

contemporaneously test the witness’s perceptions,

memory, and bias, thereby exposing any weaknesses

in the identification. This adds perspective, gives the

jury a full picture of what the witness did (or did not)

see, and allows the jury to make a fair determination

of the witness’s credibility.

Third, as a safeguard, defense counsel may seek

an identification procedure that is less suggestive

than the typical trial setting. Here, Petitioner could

have availed himself of Colo. R. Crim. P. 41.1, which

allows defendants to seek court-ordered identification

procedures, including live line-ups, either prior to trial

or during trial. See Colo. R. Crim. P. 41.1(b), (g), (h)(2);

see also People v. Monroe, 925 P.2d 767, 774 (Colo.

1996) (explaining that Colorado procedure allows

defendants to also seek to use any of the procedures

that were suggested by this Court in Moore v. Illinois,

6 While the Constitution “guarantees a fair trial through the Due

Process Clauses,” it “defines the basic elements of a fair trial

largely through the several provisions of the Sixth

Amendment.” Strickland v. Washington, 466 U.S. 668, 684—85

(1984). The Sixth Amendment provides defendants with the

rights to confrontation and an opportunity for effective crossexamination of witnesses. Delaware v. Fensterer, 474 U.S. 15, 1920 (1985). By providing defendants with this mechanism to test

prosecution witnesses, the Constitution guarantees “not that

evidence be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of crossexamination.” Crawford v. Washington, 541 U.S. 36, 61 (2004).

22

434 U.S. 220, 230 n. 5 (1977), including, for example,

asking that the defendant be seated in the audience

among others while eyewitnesses are testifying).

Petitioner acknowledges that such procedures wholly

alleviate his due process concerns, describing them as

“an easy solution.” Pet. 24. His attorney’s decision not

to request such procedures here was presumably a

tactical choice based on trial strategy.

B. Petitioner overstates the degree

consensus among social scientists.

of

Petitioner suggests that social scientists all agree

that eyewitness identifications are unreliable, see Pet.

16–17, but this claim overstates the alleged research

consensus.7 Courts have treated the reliability of such

identifications as an open question. See, e.g.,

Hickman, 330 P.3d at 566 n.9 (declining to take

judicial notice of social science findings, given the

fallibility and biases of researchers and judges, and

the central role of citizen jurors in the adjudicative

process); United States v. Libby, 461 F. Supp.2d 3, 10–

18 (D.C. Cir. 2006) (deconstructing studies purporting

to show that juries place too much reliance on

identification evidence); Watkins v. Sowder, 449 U.S.

341, 350 (1981) (holding that identification evidence,

though significant, “is still only evidence” and “counsel

See E.J. Mandery, Due Process Considerations of In-Court

Identifications, 60 Alb. L. Rev. 389, 417 n. 203 (1996) (conceding

that “no scientific data exists” to explain the results in situations

where the defendant plants a look-alike in court); see also C.A.

Carlson & M.A. Carlson, A Distinctiveness-Driven Reversal of the

Weapon-Focus Effect, 8 Applied Psychol. Crim. Just. 36, 49

(2012); J.M. Fawcett, et al., Of Guns and Geese: A Meta-Analytic

Review of the ‘Weapon Focus’ Literature, 19 Psychol., Crime & L.

35, 56 (2013).

7

23

can both cross-examine the identification witnesses

and argue in summation as to factors causing doubts

as to the accuracy of the identification”).

Colorado has long allowed this battle of experts to

unfold before the finder of fact. See Campbell v. People,

814 P.2d 1, 7 (Colo. 1991), abrogated on other grounds

by People v. Shreck, 22 P.3d 68 (Colo. 2001). So too do

other jurisdictions: nearly every state and federal

circuit has held that trial courts may admit expert

testimony on the topic of eyewitness identification, so

that jurors can weigh the experts’ competing claims.

See Com. v. Walker, 92 A.3d 766, 782–84 (Pa. 2014)

(collecting cases). Allowing such competing expert

testimony to be presented to the jury underscores the

reality that jurors can and should intelligently weigh

the strength of eyewitness identifications.

CONCLUSION

The petition for writ of certiorari should be

denied.

24

Respectfully submitted,

PHILIP J. WEISER

Attorney General

ERIC R. OLSON

Solicitor General

Office of the Colorado

Attorney General

1300 Broadway, 10th Floor

Denver, Colorado 80203

andrew.cooper@coag.gov

(720) 508-6400

L. ANDREW COOPER

Deputy Attorney General

Counsel of Record*

JILLIAN J. PRICE

Senior Assistant Attorney

General

Counsel for Respondent

September 19, 2019