     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.



                                     1
¶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.




                                     15
