Colorado Court of Appeals People v. Theus-Roberts 12CA0013

Decided 3-26-15

   Theus-Roberts took a cab to a bunch of different places, racking up a $90 fare.  At the end of his big night out, he could only pay $80.  He told the driver that his friend would be along shortly to give him the rest of his money.

   A few minutes later, Theus-Roberts came back, shot the driver in the chest, and took the $80 back.  He fled, the driver called the police, gave them his description, and Theus-Roberts was found hiding in a nearby garage.  An eyewitness identified him in a show-up (the driver survived, and identified Theus-Roberts at trial as the shooter).

   Theus-Roberts was convicted of exactly what you'd expect, but he appealed his conviction.  His argument is that the court should have suppressed the eyewitness identification because the show-up was unduly suggestive.

   The Court of Appeals explains that "A one-onone showup identification may be permissible and reasonable in situations where immediate identification would facilitate an ongoing criminal investigation.  The reasonableness of the showup procedure, however, must also be measured against the potential for irreparable misidentification."  The important question is whether any given show up was unreliable because of being unnecessarily and irreparably suggestive.  Relevant factors include the opportunity of the witness to view the suspect at the time of the 4 crime, the witness's degree of attention, the accuracy of any prior description of the suspect, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

   In this case, the witness lived across the street from the shooting, looked out her window after hearing the shooting, and described Theus-Roberts by race and by a bag he was carrying (and later found with).  An hour after the shooting, an officer told her that they may or may not have a suspect in custody, and that he wanted her to tell him whether or not someone was the same person she had seen near the cab.  A couple of officers removed Theus-Roberts from the ambulance, and the eyewitness immediately identified him with certainty.

   The trial court had correctly denied Theus-Roberts' motion to suppress the show up.  He had a few other arguments on appeal, but they're more relevant to prosecutors than to cops (and none of them had any merit).  His conviction is upheld.