Peo v. Le

23CA0091 Peo v Le 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0091
Douglas County District Court No. 18CR296
Honorable Theresa Slade, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Peter Viet Le,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE KUHN
Welling and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee

Springer and Steinberg, P.C., Taylor Ivy, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Peter Viet Le, appeals the judgment of conviction

entered on jury verdicts finding him guilty of first degree assault

with a deadly weapon, felony menacing, and two crime of violence

sentence enhancers. We affirm.

I. Background

¶2 We draw the following factual background from the record and

evidence that the jury heard at trial.

¶3 One evening in March of 2018, police were dispatched to a

bowling alley after receiving multiple reports that a person had been

shot and that the shooter had fled the scene. Upon arrival, the

responding officers found the victim with gunshot wounds to his

chest and left buttock. Despite these injuries, the victim was

conscious and ultimately survived the shooting.

¶4 The victim recounted what had happened multiple times,

including on the night of the shooting itself and the next day while

recovering in the hospital. He told the police that he had been out

bowling with several of his friends, and shortly before closing time

he went to return his bowling shoes. After leaving the shoes on the

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counter, he accidentally bumped shoulders with another person1

but continued to walk back to his bowling lane without apologizing.

¶5 The victim stated that while he was walking back, he heard

the shooter say something to him. After the victim turned around

and asked the shooter what he had just said, the shooter pulled out

a gun and shot the victim in the chest. As the victim started to run

away, the shooter fired another shot, hitting the victim in the left

buttock.

¶6 The victim described the shooter as a male, “about 5’10[”]

[tall], Vietnamese, wearing a black hoodie, glasses, and having

facial hair (goatee).” Five days after the incident, the police showed

the victim a six-photo array in the hospital. The victim positively

identified Le as the shooter by picking his photo from the array.

¶7 The prosecution charged Le with attempted second degree

murder, first degree assault with a deadly weapon, felony menacing,

and two counts of crime of violence sentence enhancers for using a

deadly weapon and causing serious bodily injury in connection with

1 The victim told the police the day after the shooting that he had

bumped shoulders with Le. At trial, however, the victim testified
that he had “brushed shoulders with a female.”

2
the crimes. The jury hung on the attempted second degree murder

charge2 but found Le guilty of the remaining offenses. The trial

court sentenced him to twenty years for the first degree assault and

three years for the felony menacing, to be served consecutively in

the custody of the Department of Corrections.

II. Analysis

¶8 On appeal, Le contends that the trial court reversibly erred by

(1) denying his motion to suppress the victim’s out-of-court photo

identification of Le after determining that the identification,

although based on an impermissibly suggestive photo array, was

sufficiently reliable; and (2) not continuing his trial as a remedy for

the prosecutor’s discovery violation under Crim. P. 16. We consider

these contentions in turn.

A. Reliability of the Out-of-Court Photo Identification

¶9 Le contends that the trial court erred by not suppressing the

victim’s out-of-court photo identification because the identification

wasn’t sufficiently reliable to overcome the suggestiveness of the

photo array. We disagree.

2 The prosecution later dismissed this charge.

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1. Additional Background

¶ 10 Before trial, Le moved to suppress the victim’s out-of-court

photo identification and any subsequent in-person identification

based on the photo array on the ground that the array was

impermissibly suggestive. After an evidentiary hearing, the trial

court determined that the photo lineup was unduly suggestive

because although three photos showed facial hair, only Le’s photo

showed a man with a goatee, which was a feature that matched the

victim’s description of the shooter.

¶ 11 The court then held a second evidentiary hearing to determine

whether the victim’s out-of-court identification of Le was reliable

despite the suggestive nature of the photo array. Applying the

five-factor test from Bernal v. People, 44 P.3d 184, 192 (Colo. 2002),

the court concluded that the identification was reliable, and

therefore, admissible.

¶ 12 The victim then identified Le as his shooter at trial.

2. Applicable Law and Standard of Review

¶ 13 “Generally, a witness’s in-court identification cannot be based

on an earlier, unreliable out-of-court identification.” People v.

McCants, 2021 COA 138, ¶ 16. A defendant is denied due process

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of law if the out-of-court identification is so impermissibly

suggestive and unreliable as to give rise to a very substantial

likelihood of irreparable misidentification. People v. Jaquez, 2018

COA 76, ¶ 49. Thus, “the results of an impermissibly suggestive

identification procedure [are inadmissible] unless the totality of the

circumstances demonstrates that the procedure was sufficiently

reliable despite its suggestiveness.” McCants, ¶ 16.

¶ 14 To determine whether an out-of-court identification based on a

photo array is admissible at trial, a court must engage in a two-part

analysis. First, a defendant has the burden to prove that the photo

array was impermissibly suggestive. Bernal, 44 P.3d at 191. If the

defendant fails to meet this burden, then no further inquiry is

necessary. Id.

¶ 15 But if the defendant proves that the photo array was

impermissibly suggestive, then the burden shifts to the prosecution

to show that the witness’s identification was nonetheless reliable

under the totality of the circumstances. Id. In considering the

totality of the circumstances, courts consider the following factors:

(1) the opportunity of the witness to view the defendant at the time

of the crime; (2) the witness’s degree of attention; (3) the accuracy of

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the witness’s prior description of the defendant; (4) the level of

certainty demonstrated by the witness at the time of the

confrontation; and (5) the length of time between the confrontation

and the crime. Id.; McCants, ¶ 17. “As long as the totality of the

circumstances does not indicate a very substantial likelihood of

irreparable misidentification, no constitutional impediment to the

admission of the identification testimony exists.” Bernal, 44 P.3d at

191.

¶ 16 The constitutionality of an out-of-court identification

procedure presents a mixed question of fact and law; we defer to the

trial court’s findings of fact unless they are clearly erroneous and

unsupported by the record, but we review de novo its conclusions of

law. McCants, ¶ 20. However, while the trial court’s factual

findings are entitled to deference, we may weigh those facts

differently and reach a different conclusion than the court. Bernal,

44 P.3d at 190. Because Le preserved this issue in the trial court,

we review for constitutional harmless error if the court erred,

reversing unless we can conclude that any error was harmless

beyond a reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11; see

also People v. Martinez, 2015 COA 37, ¶ 10.

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3. The Trial Court Didn’t Err by Determining that the
Out-of-Court Photo Identification Was Sufficiently Reliable

¶ 17 As an initial matter, the parties don’t dispute that the photo

array used here was impermissibly suggestive. Instead, the parties’

dispute revolves around the reliability of the out-of-court photo

identification that the victim made five days after the shooting. In

concluding that the identification was reliable under the Bernal test,

the trial court made the following findings:

• The victim had the opportunity to view the shooter at the

time of the incident because “[t]he lights in the bowling

alley were on,” the victim “was ‘leaning in’ to the shooter,”

his “view of the shooter was unobstructed,” and “they

were facing each other.”

• Though the victim had “watched the shooter pull the gun

from his waistband,” that happened late in the

encounter. Before the gun was drawn, the victim was

trying to hear what the shooter had said.

• The victim was able to provide a detailed description of

the shooter shortly after the incident.

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• The victim’s description matched the shooter’s

appearance in the still photos that video surveillance

cameras captured on the night of the incident.

• The victim’s description of the shooter had remained

“fairly consistent” throughout the proceedings.

• While the victim “appear[ed] to be under the influence of

pain medication” at the time of the photo lineup, “he was

coherent,” “thinking clearly,” and was ninety percent sure

that Le was the shooter.

• The police administered the photo lineup only five days

after the shooting.

¶ 18 In making the above findings of fact, the trial court primarily

relied on the victim’s testimony at the second suppression hearing.

Le doesn’t dispute that the court’s findings are supported by the

record, and thus, must be afforded deference by us. See McCants,

¶ 20. However, he argues that we should nonetheless reach a

different conclusion than the trial court based on those findings

because the court failed to consider certain evidence when

evaluating the first four prongs of Bernal’s reliability test. We’re not

persuaded.

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¶ 19 First, Le contends that in addressing whether the victim had

an opportunity to view the shooter at the time of the incident, the

trial court didn’t consider the victim’s testimony that he was

“standing eight feet away from the shooter,” nor did it acknowledge

“just how brief” their encounter was, “[twenty] to [thirty] seconds at

most.” But contrary to Le’s argument, the victim’s testimony about

the length of his encounter with the shooter and the distance

between the two of them doesn’t weigh against the reliability of the

identification. The fact that the victim faced his assailant for

around twenty seconds from eight feet away provided an ample

opportunity for observation, and it certainly wasn’t clear error for

the trial court to reach this conclusion based on the evidence

presented. That is especially true given that the victim also testified

that the area where the shooting occurred was well-lit, his view was

unobstructed, and he had made eye contact with the shooter. See

People v. Campbell, 2018 COA 5, ¶ 58 (upholding an identification

as reliable when a witness saw the suspect for “one or two seconds

in a well-lit area while [they] were about ten feet away from one

another”); see also Archuleta v. Kerby, 864 F.2d 709, 712 (10th Cir.

1989) (stating that a witness had a sufficient opportunity to observe

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the defendant when the witness “had two brief, unobstructed views”

of the defendant from “thirty to forty feet away”).

¶ 20 Second, Le asserts that in assessing the degree of the victim’s

attention, the trial court (1) failed to consider that the victim “had

consumed three beers and felt tipsy when he encountered the

shooter” and (2) “disregarded the evidence indicating that [the

victim’s] attention during the brief encounter would have been

focused on the gun instead of the shooter.”

¶ 21 But while the victim told the police that he had consumed

three beers and felt tipsy shortly before he was shot, he also stated

that he was “definitely not drunk.” Regardless, evidence regarding

the victim’s level of intoxication alone is insufficient to invalidate

the reliability of his identification. See Jennings v. State, 626

S.E.2d 155, 158 (Ga. Ct. App. 2006) (concluding that a photo

identification was reliable when the victim, despite being intoxicated

at the time of the crime, had ample opportunity to see the

defendant, provided a good description of the defendant, and picked

the defendant’s photo without hesitation).

¶ 22 As for Le’s second assertion, the court did recognize that the

victim also paid attention to the gun but rejected Le’s argument

10
that the presence of the gun necessarily diverted the victim’s

attention from the shooter’s face to his weapon. In doing so, the

court noted that the victim was able to provide a detailed

description of the shooter shortly after the incident, suggesting that

the victim’s focus wasn’t on the gun. The victim’s testimony further

supports the court’s finding. He acknowledged that the gun briefly

attracted his attention but later clarified that he had only “quickly

glance[d]” at the gun and was otherwise looking at the shooter

during their encounter.

¶ 23 Third, Le argues that the trial court erred in evaluating the

accuracy of the victim’s prior description of the shooter because the

court “misconstrued” expert testimony regarding the cross-race

effect in eyewitness identifications. Specifically, at the second

suppression hearing, an expert on the effect of race on facial

recognition testified that this case implicated the cross-race effect

because the victim and Le were of different races. The expert

described the cross-race effect as “the idea that when people are

trying to recognize a face, they’re usually very good with faces of the

same racial group but they may have much more difficulty with

faces of different racial groups.” The court determined that the

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cross-race effect didn’t undermine the reliability of the victim’s

identification because the victim “was one of the only witnesses who

did not use a generic ‘Asian male’ description, instead identifying

his shooter as ‘Vietnamese.’”

¶ 24 In challenging this finding, Le argues that just because the

victim generally described the shooter as Vietnamese doesn’t

automatically mean that he later correctly identified the specific

Vietnamese person who shot him. That’s true as far as it goes. But

as the court observed, the victim accurately described much more

than the shooter being Vietnamese, providing details “such as facial

hair, [the shooter’s] approximate height, and clothing he was

wearing.” And the victim’s description of the shooter, as the court

also observed, is supported by the video surveillance footage.

¶ 25 Finally, we also disagree with Le’s argument that the level of

certainty the victim exhibited at the time of identification weighs in

favor of unreliability because “the trial court did not acknowledge

that [the victim] believed [that] another person in the photo array

could have been the shooter.” While the victim picked another

photo in the array as a possible shooter, he positively identified Le

with a ninety percent certainty in the accuracy of his identification.

12
And Le cites no authority — nor are we aware of any — holding that

this prong of the Bernal test requires absolute certainty. Cf.

Campbell, ¶ 59 (observing that the victim’s “confidence in the

identification was high” when the victim was ninety-five percent

sure that his identification was accurate).

¶ 26 In sum, we conclude that the trial court didn’t err by

determining that, under the totality of the circumstances, the

victim’s out-of-court photo identification was reliable even though it

was based on an unduly suggestive photo array. Consequently, the

court also didn’t err when it denied Le’s motion to suppress the

photo-lineup identification and any subsequent in-court

identification.

B. Motion to Continue Due to an Alleged Discovery Violation

¶ 27 Le next contends that the trial court reversibly erred by

denying his motion to continue the trial on the ground that the

prosecutor committed a discovery violation. We again disagree.

1. Additional Background

¶ 28 Four days before the start of the trial, in September 2022, Le

filed a motion for a continuance, arguing that the prosecutor had

untimely disclosed certain information in violation of Crim. P. 16.

13
Specifically, he alleged that only the day before, the prosecutor had

disclosed a transcript of the victim’s testimony from December 2019

in Douglas County Case No. 19CV30236. In that case, the victim

sued Le for the personal injuries caused by the shooting.3 Le

argued to the trial court that the victim’s testimony in the civil case

was inconsistent with the victim’s prior statements regarding the

shooting. He requested an ex parte hearing to explain to the court

why that testimony was material to his defense.

¶ 29 The trial court addressed Le’s motion on the first day of trial.

It observed that the prosecutor’s failure to timely disclose the

transcript didn’t implicate a “discovery issue” because that

information was readily available, even more so to Le than the

prosecutor, considering that Le was a party to the civil case and the

People weren’t. The court further observed that Le’s prior criminal

defense counsel had requested the transcript from the civil case

before the prosecutor did. Under those circumstances, the court

said that it couldn’t find that Le didn’t have the information until

3 We take judicial notice of the contents of the court records in this

related civil case. See People v. Sa’ra, 117 P.3d 51, 56 (Colo. App.
2004).

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the prosecutor’s disclosure. Finally, the court reasoned that a

continuance wasn’t warranted because the case had been

continued several times in the past, and the court had “warned

both the prosecution and the [defense] that this [trial] setting was a

firm setting.” Accordingly, the trial court denied Le’s motion to

continue.

2. Applicable Law and Standard of Review

¶ 30 Rule 16 governs discovery in criminal proceedings, outlining

the pretrial procedures that parties must follow. The rule requires

a prosecutor to make certain materials and information in her

possession or control available to the defense. As relevant here,

those include “[a]ny books, papers, documents, photographs or

tangible objects held as evidence in connection with the case.”

Crim. P. 16(I)(a)(1)(IV). The prosecutor must satisfy this obligation

“as soon as practicable” but not later than twenty-one days after

the defendant’s first appearance. Crim. P. 16(I)(b)(1).

¶ 31 In addition, under Rule 16(I)(a)(2), a prosecutor is also

required to disclose information in her possession or control that is

(1) exculpatory or favorable to the defendant and (2) material to the

case. See People v. Bueno, 2018 CO 4, ¶ 29; People v. Dist. Ct., 790

15
P.2d 332, 337 (Colo. 1990) (stating that this provision is grounded

in the due process requirements the Supreme Court identified in

Brady v. Maryland, 373 U.S. 83, 87 (1963)); In re Att’y C, 47 P.3d

1167, 1170-71 (Colo. 2002) (“[T]he materiality standard of Brady

. . . applies to Rule 16 disclosures in Colorado.”).

¶ 32 If a prosecutor fails to comply with the rule, then the trial

court may remedy the discovery violation by ordering the prosecutor

“to permit the discovery or inspection of materials not previously

disclosed, grant[ing] a continuance, prohibit[ing] the [prosecutor]

from introducing in evidence the material not disclosed or enter[ing]

such other order as it deems just under the circumstances.” Crim.

P. 16(III)(g) (emphasis added). “Discovery sanctions serve the dual

purposes of protecting the integrity of the truth-finding process and

deterring prosecutorial misconduct.” People v. Zadra, 2013 COA

140, ¶ 15, aff’d, 2017 CO 18.

¶ 33 “We review both a [trial] court’s resolution of discovery issues

and its decision to impose sanctions for discovery violations for an

abuse of discretion.” People v. Mendez, 2017 COA 129, ¶ 32. A

trial court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, unfair, or based on a misapplication of the

16
law. People v. Herrera, 2012 COA 13, ¶ 11. It is the appellant’s

duty to present a record demonstrating any claimed error. People v.

Ullery, 984 P.2d 586, 591 (Colo. 1999).

¶ 34 Because Le preserved this issue in the trial court, we review

his claim for harmless error. See Hagos, ¶ 12. We will reverse

under this standard only if the trial court’s error substantially

influenced the verdict or impaired the fairness of the trial. Id.

3. The Trial Court Didn’t Reversibly Err by Denying
Le’s Motion for a Continuance

¶ 35 Le contends that the prosecutor’s failure to timely disclose the

transcript of the victim’s testimony in the civil proceeding was a

discovery violation that the trial court should have sanctioned by

continuing his trial. In advancing this argument, Le relies on Rule

16(I)(a)(1)(IV) for the proposition that because the transcript

contained testimony regarding the shooting — and was in the

prosecutor’s possession or control — the prosecutor was required to

disclose it earlier “regardless of whether Mr. Le could have accessed

the transcript as a party to the civil case.” Under these

circumstances, he argues, the court abused its discretion by

determining that the prosecutor didn’t commit a discovery violation

17
that would warrant continuing the case. We discern no reversible

error.

¶ 36 It’s questionable whether Rule 16 required the prosecutor to

affirmatively disclose the transcript of the victim’s testimony in the

civil case under these circumstances. As the trial court pointed

out, Le was a party to that case and his prior defense counsel not

only requested the transcript before the prosecutor did but also told

the prosecutor about it in the first place. But we need not decide

whether the prosecutor violated Rule 16.

¶ 37 Even if we were to assume, for the sake of argument, that the

prosecutor committed a discovery violation under Rule 16, Le fails

to carry his burden of showing how he was prejudiced by the trial

court’s decision not to continue his trial. See People v. Short, 2018

COA 47, ¶ 54. Le asserts that because the prosecutor provided the

transcript of the victim’s inconsistent statements only a few days

before the trial, he didn’t have ample opportunity to investigate

those statements and prepare his defense “fully and meaningfully.”

¶ 38 But as the People point out, the transcript underlying Le’s

claim wasn’t admitted into evidence or filed in the trial court, it isn’t

part of the appellate record, and it doesn’t appear to be a part of

18
any filing in the civil case. Because we have no access to that

document, we can’t confirm its contents, see whether it says what

Le claims it does, or evaluate how it could have impacted his trial.4

¶ 39 True, the trial court did note during the continuance hearing

that it “c[ould] find that there’s information in the transcript which

would be helpful to defense in preparing their defense.” However,

we disagree with Le’s argument that the quoted language was the

court’s finding of fact that the transcript was favorable to him. The

record shows that the court didn’t review the transcript before

making this statement. Instead, the court simply accepted as true

defense counsel’s description of the transcript’s contents before

denying Le’s motion to continue because he “certainly had” the

transcript and the court had already granted numerous

continuances in the past. In other words, the court assumed for

the sake of argument that even if the transcript contained

information that would perhaps assist Le in preparing his defense,

4 Likewise, to the extent Le argues that this issue implicates a

violation of Crim. P. 16(I)(a)(2), we can’t determine from the
incomplete record whether the untimely disclosed transcript
contained exculpatory information that was material to this case.
See People v. Bueno, 2018 CO 4, ¶ 29 (listing elements of a Brady
claim).

19
continuing his trial was nonetheless inappropriate under the

circumstances. And in any event, whether or not the trial court

perceived the transcript as favorable to Le doesn’t change the fact

that it is not available for our review.

¶ 40 Without the transcript, we can’t evaluate whether or to what

extent the victim’s testimony in the civil case was indeed

inconsistent with his prior statements. And we can’t resolve

whether the trial court’s decision not to give Le additional time to

investigate that issue substantially influenced the verdict or affected

the fairness of the trial proceedings.5 See Hagos, ¶ 12. As the

appellant in this case, it was Le’s duty to provide an adequate

record demonstrating that the trial court erred by not continuing

his trial, see Ullery, 984 P.2d at 591, and to show that he suffered

harm as a result of that ruling, see Short, ¶ 54. Because we can’t

determine from the record before us whether Le suffered any harm

due to the alleged error, he fails to carry that burden.

5 Indeed, Le’s appellate briefing also doesn’t identify any statements

in the transcript that were inconsistent with the victim’s earlier
statements, and he doesn’t explain the significance of any
inconsistencies.

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¶ 41 Under these circumstances, then, we conclude that the trial

court didn’t reversibly err by denying his motion for a continuance.

III. Disposition

¶ 42 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.

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