People v. Palacios

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 25, 2018

2018COA6

No. 15CA1395 People v. Palacios — Criminal Law — Fifth
Amendment — Pre-Trial Identification; Evidence —
Demonstrative Evidence — Admissibility

In this criminal case, a division of the court of appeals first

concludes that the police’s placement of a suspect’s photograph in a

particular position in a photo array, after the witness had selected a

photograph in that position from a different photo array, does not

render the identification procedure unduly suggestive. Accordingly,

the division affirms the district court’s denial of the defendant’s

motion to suppress the identification evidence.

Next, the division concludes that the admission of any

demonstrative aid, including the full-size mock-up of the crime

scene at issue in this case, is governed by the four-part test

articulated in People v. Douglas, 2016 COA 59. To be admissible
under that test, the demonstrative aid must be authenticated, it

must be relevant, it must be a fair and accurate representation of

the evidence to which it relates, and its probative value must not be

substantially outweighed by the danger of unfair prejudice.

Because the demonstrative aid satisfied the test for

admissibility, the division concludes that the district court did not

abuse its discretion in allowing the prosecution to use the

demonstrative aid during certain witness testimony and closing

argument.
COLORADO COURT OF APPEALS 2018COA6

Court of Appeals No. 15CA1395
Jefferson County District Court No. 13CR2977
Honorable Todd L. Vriesman, Judge
Honorable Christopher J. Munch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Luis Palacios,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE HARRIS
Terry and Plank*, JJ., concur

Announced January 25, 2018

Cynthia H. Coffman, Attorney General, Melissa D. Allen, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Jose L. Palacios, 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 Palacios’s

accomplice.

¶2 On appeal, Palacios challenges his convictions on two

grounds. First, he argues that the court erred in failing to suppress

a witness’s identification as the product of an impermissibly

suggestive identification procedure. Second, he argues that the

court erred in allowing the prosecution to use a full-size

reconstructed model or “mock-up” of the crime scene during two

prosecution witnesses’ testimony and again during closing

argument. We reject both arguments and therefore affirm.

I. Motion to Suppress Identification

¶3 We begin with some factual background relevant to the motion

to suppress.

¶4 The murder occurred in a detached garage, which the victim

used as his residence. Two witnesses were present in the garage at

the time of the crime: the victim’s marijuana supplier and the

victim’s girlfriend.

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¶5 On the night of the murder, police presented the girlfriend

with a photo array. By this time, police knew that two perpetrators

had committed the crime and they had identified the accomplice as

a suspect. The array included a photo of the accomplice in position

no. 1, and five “filler” photos. The girlfriend selected photograph no.

1 as the accomplice and a filler photograph in position no. 3 as

possibly depicting the second perpetrator.1

¶6 Two days later, police showed the girlfriend another photo

array, in an effort to identify the true second perpetrator. The array

included a photograph of a suspect — not Palacios — in position

no. 3, and five filler photographs. The girlfriend selected a filler

photograph in position no. 5 as a photo of the second perpetrator.

¶7 Police soon learned that Palacios was likely the second

perpetrator. So they showed the girlfriend a third photo array, this

time with a photograph of Palacios in position no. 3, and five filler

1 The record was inconsistent regarding the girlfriend’s initial
identifications. In the affidavit for an arrest warrant, the officer
stated that the girlfriend identified the accomplice as the person in
either photograph no. 1 or photograph no. 3. At the suppression
hearing, however, a different police officer testified that the
girlfriend selected photograph no. 1 as the accomplice and
photograph no. 3 (a filler) as the defendant. The inconsistency does
not affect our analysis.
2
photographs. The girlfriend identified Palacios as the second

perpetrator.

¶8 Palacios filed a motion to suppress the girlfriend’s out-of-court

identification and to exclude any subsequent in-court identification.

He contended that the police had “induced” the girlfriend’s

identification of Palacios by “putting the suspect in the same

position as the filler that had already been selected.” The court

denied the motion, reasoning that because the girlfriend had

previously selected photos in position nos. 1, 3, and 5, simply

placing Palacios’s photo in position no. 3 did not render the array

impermissibly suggestive.

¶9 On appeal, Palacios reasserts his argument that the final

photo array was impermissibly suggestive because his photo was

placed in position no. 3, after the girlfriend had selected a filler

photograph in position no. 3 from the initial array.

¶ 10 The constitutionality of pretrial identification procedures is a

mixed question of law and fact. People v. Borghesi, 66 P.3d 93, 104

(Colo. 2003). While we defer to the district court’s findings of fact,

we may give different weight to those facts and reach a different

conclusion. Id.

3
¶ 11 Our review of an identification procedure entails a two-part

analysis. Bernal v. People, 44 P.3d 184, 191 (Colo. 2002). First, we

must decide whether the identification procedure was unduly

suggestive, which the defendant has the burden of proving. Id.

Second, if the identification procedure was unduly suggestive, the

burden shifts to the prosecution to show that the identification was

nevertheless reliable under the totality of the circumstances. Id.

¶ 12 We look to various factors to determine whether a pretrial

photographic identification procedure was impermissibly

suggestive, including the size of the photo array, the manner of its

presentation by the officers, and the details of the photographs

themselves. Id. Palacios does not challenge the size of the array or

the details of the photographs themselves. Our inquiry, then, is

limited to whether the officers’ presentation of the photo array

rendered the identification procedure unduly suggestive.

¶ 13 In general, the manner of an officer’s presentation will result

in an unduly suggestive identification procedure when “the

procedure used to present the [array] . . . suggest[s] a particular

suspect.” People v. Wilford, 111 P.3d 512, 515 (Colo. App. 2004).

Thus, an improper manner of presenting the array would include

4
circumstances where the police inform the witness that a suspect

has been arrested or urge the witness to identify a suspect from the

array. Cf. People v. Hogan, 114 P.3d 42, 50 (Colo. App. 2004)

(manner of presenting array was not unduly suggestive where police

did not tell victim that a suspect had been arrested and advisement

form told victim that she did not have to identify anyone); see also

Smiley v. State, 111 A.3d 43, 50 (Md. 2015) (“Suggestiveness can

arise during the presentation of a photo array when the manner

itself of presenting the array to the witness . . . indicates which

photograph the witness should identify.”); State v. Thamer, 777 P.2d

432, 435 (Utah 1989) (“The words and actions of law enforcement

officials who present the photos should convey an attitude of

disinterest . . . . Any manipulation indicating that the police believe

one of the photographs portrays the accused could lead to a finding

of suggestiveness.”).

¶ 14 But the mere placement of a defendant’s photo in a particular

position, without more, does not render the identification procedure

impermissibly suggestive. See, e.g., Wilford, 111 P.3d at 514

(holding that no “one position in a six-photo array is suggestive”

and concluding that officer’s placement of defendant’s photo in

5
middle of top row did not amount to an impermissibly suggestive

presentation); People v. Duncan, 754 P.2d 796, 798 (Colo. App.

1988) (successive photo arrays containing the defendant’s

photograph in the same position were not unduly suggestive).

¶ 15 That the girlfriend had earlier selected a photo in position no.

3 cannot raise the specter of suggestiveness in light of her

additional selections of photos in position nos. 1 and 5. Clearly,

position no. 3 did not have special suggestive properties, as

Palacios’s argument would apply with equal force if the officer had

placed his photo in either position no. 1 or 5. Accordingly, we are

confident that the mere placement of Palacios’s photo in position

no. 3 did not “interject an unnecessary risk of misidentification.”

People v. Loyd, 751 P.2d 1015, 1017 (Colo. App. 1988).

¶ 16 Because Palacios has failed to carry his burden to show that

the photo array was unduly suggestive, we conclude (without

further inquiry into the reliability of the identification) that the

court properly denied the motion to suppress the girlfriend’s

identification. See People v. Singley, 2015 COA 78M, ¶ 14 (If the

defendant fails to meet his burden at the first step of the analysis,

6
“the identification is admissible, [and] no further inquiry is

required.”).

II. Demonstrative Evidence

¶ 17 At trial, the prosecution used a full-size mock-up of the garage

as a demonstrative aid2 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. Palacios says the court erred in permitting the

prosecution to use these demonstrative aids because their size was

inaccurate and the inaccuracy rendered the mock-ups misleading

and therefore unfairly prejudicial.

¶ 18 We review the district court’s decision to allow a party to use a

demonstrative aid for an abuse of discretion. See People v.

Richardson, 58 P.3d 1039, 1045 (Colo. App. 2002). A trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair. People v. Hagos, 250 P.3d 596, 608 (Colo.

App. 2010). In assessing whether a trial court’s decision is

2The parties refer to the mock-up as a demonstrative exhibit, but it
was not admitted into evidence as an exhibit and so we refer to it as
a demonstrative aid.
7
arbitrary, unreasonable, or unfair, we look to whether the trial

court’s decision fell within a range of reasonable options. Churchill

v. Univ. of Colo., 2012 CO 54, ¶ 74. Thus, a trial court abuses its

discretion only when its decision exceeds the bounds of the

rationally available choices. Id.; see also Hagos, 250 P.3d at 610

(“The essence of a discretionary decision is that the trial court can

choose among valid options in resolving an issue.”).

¶ 19 Demonstrative aids can take various forms, including

diagrams, maps, computer animations, or, as relevant here, models

or mock-ups. See Black’s Law Dictionary 675 (10th ed. 2014).

Regardless of the particular form, demonstrative aids generally

serve the same purpose: to illustrate or clarify a witness’s

testimony. In other words, the primary purpose of a demonstrative

aid is to “illustrate other admitted evidence and thus to render it

more comprehensible to the trier of fact.” 2 George E. Dix et al.,

McCormick on Evidence § 214 (Kenneth S. Broun ed., 6th ed. 2006)

(McCormick); see also Intermill v. Heumesser, 154 Colo. 496, 501,

391 P.2d 684, 686 (1964) (“[D]emonstrative aids should be

encouraged since they give the jury and the court a clear

8
comprehension of the physical facts, certainly much clearer than

one would be able to describe in words.”).

¶ 20 To be used for this purpose, the demonstrative aid must (1) be

authentic, meaning the proponent must demonstrate “that the

evidence is what it is claimed to be,” People v. Cauley, 32 P.3d 602,

607 (Colo. App. 2001); (2) be relevant, meaning that it will assist the

trier of fact in understanding other testimonial and documentary

evidence, People v. Douglas, 2016 COA 59, ¶ 22; see also

McCormick § 217 (if a demonstrative aid “assists the trier’s

understanding, it is relevant”); (3) be a “fair and accurate

representation of the evidence to which it relates,” Douglas, ¶ 22

(quoting Cauley, 32 P.3d at 607); and (4) not be unduly prejudicial,

meaning its probative value must not be substantially outweighed

by its danger for unfair prejudice, id.; see also Richardson, 58 P.3d

at 1045.

¶ 21 The People say this four-part test governs only the use or

admissibility of a computer animation, and that other

demonstrative aids or exhibits, like a model or mock-up, may be

used or admitted upon a mere showing that the model is a

“reasonably accurate” version of what it purports to depict. But the

9
People’s standard would allow the use of an irrelevant or unfairly

prejudicial demonstrative aid or exhibit, a standard that is entirely

inconsistent with the rules of evidence. See, e.g., CRE 401, 403.

¶ 22 For his part, Palacios argues only that the mock-up of the

garage was too small to satisfy the “fair and accurate” prong of the

test. He insists that the full-size mock-up, which the prosecutor

used during the witnesses’ testimony, did not show the west side of

the bed where the girlfriend was hiding during the shooting. This

deficiency made the demonstrative aid “misleading and confusing,”

he says.

¶ 23 As an initial matter, Palacios’s argument overstates the

evidence. The full-size mock-up of the garage did depict the area

next to the bed. The sheriff’s investigator testified that the

recreated scene showed the “approximate[] . . . amount of space”

between the bed and the western wall of the garage. And, during

this part of the testimony, defense counsel acknowledged that she

was standing in the part of the mock-up at issue by asking “and

right now . . . I am standing on the — in the area on the western

side of the bed in the demonstrative, correct?” to which the

investigator responded, “That is correct.”

10
¶ 24 At most, Palacios can establish that the approximately twenty-

foot-wide mock-up was about twenty-four inches smaller than the

actual garage. The sheriff’s investigator readily admitted as much,

after he and defense counsel took measurements of the mock-up

during his testimony and compared them to measurements of the

actual scene.

¶ 25 But this minor discrepancy does not render the demonstrative

aid so inaccurate that its use represents an abuse of the district

court’s discretion.

¶ 26 For one thing, as Palacios concedes, a demonstrative aid need

not be “exact[ly]” identical in every detail to the actual scene it

depicts, Douglas, ¶ 45 (quoting Clark v. Cantrell, 529 S.E.2d 528,

537 (S.C. 2000)); it need only be “substantially similar,” id. The

sheriff’s investigator testified that the full-size model was a “fair and

accurate representation of the scene,” and the second witness

testified that, though it was “a little smaller,” the model “roughly

and accurately” depicted the garage. In our view, the record

demonstrates that the mock-up was substantially similar to the

actual garage.

11
¶ 27 For another thing, the minor discrepancy was apparently

attributable to size constraints of the available courtrooms. The

district court’s own courtroom was too small for the mock-up, so

the prosecution set up the demonstrative aid in the larger

courtroom. That space was still too small for a mock-up that

precisely mirrored the actual scene, but the only room that might

have allowed for a same-size model of the garage was the jury

assembly room, an option the court considered and rejected

because transporting Palacios to and from that room would have

required extra security, which, in turn, would have revealed his

custodial status to the jury.

¶ 28 We cannot say that the court’s decision to allow the use of the

substantially similar mock-up in the larger courtroom exceeded the

bounds of the rationally available choices. See Churchill, ¶ 74.

¶ 29 Our conclusion is bolstered by the absence of any argument

that the twenty-four-inch discrepancy was prejudicial. Palacios

does not explain how the jury would have been misled by the

discrepancy or even the nature of the confusion he says likely

resulted from the use of the mock-up. “[I]t is not this court’s

function to speculate as to what a party’s argument might be.”

12
Beall Transp. Equip. Co. v. S. Pac. Transp., 64 P.3d 1193, 1196 n.2

(Or. Ct. App. 2003); see also Mauldin v. Lowery, 127 Colo. 234, 236,

255 P.2d 976, 977 (1953) (“It is the task of counsel to inform us . . .

both as to the specific errors relied on and the grounds and

supporting facts and authorities therefor.”).

¶ 30 Even if we were inclined to hypothesize about potential

prejudice, we would be unable to identify any. The sheriff’s

investigator who provided the information for the demonstrative aid

had personal knowledge of the scene and was subject to cross-

examination regarding the accuracy of the mock-up. See

Richardson, 58 P.3d at 1046. The prosecution introduced into

evidence dozens of photographs of the scene, including at least five

enlargements of the interior of the garage. The jury therefore had

access to images of the actual crime scene and could determine for

itself the accuracy and helpfulness of the mock-up. Indeed, the

district court cautioned the jury that the mock-up was simply a

demonstrative aid and instructed that “if, in your view, there is

some discrepancy between a demonstrative [aid] and more original

evidence, you’ll go with the original evidence and not with a mere

demonstration.” See Douglas, ¶ 30 (stating that courts should give

13
a limiting instruction that explains that a demonstrative aid is the

proponent’s version of the scene it depicts). And finally, to the

extent Palacios suggests that the mock-up might have misled the

jury about the girlfriend’s location in the garage, we note that the

demonstrative aid was neither used nor present in the courtroom

during the girlfriend’s testimony.

¶ 31 For the same reasons, we conclude that the district court did

not abuse its discretion in allowing the government to use only a

portion of the full-size mock-up as a demonstrative aid during

closing argument. Palacios says that the smaller version

encompassed only “25 percent” of the original demonstrative aid

and was laid out “in a different direction from” the mock-up used

during testimony. But defense counsel acknowledged that the

smaller mock-up was accurate, as far as it went:

To [the prosecutor’s] credit, he’s marked hash
tags on here, and it looks like those are the
measurements that [the investigator] gave him.
So the measurements, I guess, are precise to
the wall. I even nitpicked the 9 inches from
the edge of there. So I think the
measurements are close, but I think this is
entirely misleading doing it this way.

14
¶ 32 We do not understand — and Palacios does not explain — why

the jury would have been misled by a demonstrative aid that

showed only a portion of the garage. The jury had already viewed

the full-size mock-up and determined its usefulness in

understanding the evidence. The court specifically reminded the

jury that the smaller mock-up “d[id] not constitute evidence.” And,

from our reading of the record, it does not appear that the

prosecution used the mock-up in any significant way during the

argument. Holland v. United States, 209 F.2d 516, 524 (10th Cir.)

(“Ultimately it was for the jury to determine whether [the

demonstrative aids] truly portrayed the evidence. Their use was no

more than an argument which the jury was of course free to reject

or accept in its discretion.”), aff’d, 348 U.S. 121 (1954).

¶ 33 Accordingly, we perceive no error in the district court’s

decision to allow the prosecution to use the demonstrative aids.

III. Conclusion

¶ 34 The judgment of conviction is affirmed.

JUDGE TERRY and JUDGE PLANK concur.

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