     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
                                                                 May 31, 2018

                                2018COA76

No. 15CA1081, People v. Jaquez — Constitutional Law — Fifth
Amendment — Right Against Self-Incrimination; Criminal Law
— Pre-Trial Identification

     As a matter of first impression, a division of the court of

appeals holds that the admission of statements made during a

one-on-one voice identification procedure not preceded by Miranda

warnings, that the division concludes was a custodial interrogation,

violated the defendant’s Fifth Amendment right against

self-incrimination.

     During the custodial interrogation a police agent, without

asking the defendant to repeat the words used by the robber,

induced the defendant to speak the same words as those used by a

robber during a nearby armed robbery. This is in contrast to a

voice exemplar typically used in a voice identification procedure
where the defendant is asked to speak the same words spoken by

the robber. In that case, no Fifth Amendment violation occurs

because the characteristics of a person’s voice are not protected by

the Fifth Amendment.

     Here, the words the defendant chose to utter were admitted

and argued by the prosecution as substantive evidence of his guilt.

The division concludes that the admission of this evidence

inculpated the defendant and violated his Fifth Amendment right

against self-incrimination. This error was not harmless beyond a

reasonable doubt, requiring reversal of defendant’s armed robbery

conviction.

     The division also concludes that the one-on-one voice

identification procedure was impermissibly suggestive and remands

to the trial court to make further findings on reliability under

Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).
COLORADO COURT OF APPEALS                                        2018COA76


Court of Appeals No. 15CA1081
Adams County District Court No. 14CR2305
Honorable John E. Popovich, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Roger Jaquez,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division IV
                         Opinion by JUDGE BERGER
                       Hawthorne and Miller*, JJ., concur

                           Announced May 31, 2018


Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Kamela Maktabi, Deputy
State Public Defender, Denver, 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    During a one-on-one voice identification procedure, the victim

 of an armed robbery was directed by the police to speak with the

 defendant, Anthony Roger Jaquez, while Jaquez was in custody, to

 “see if [Jaquez] would say anything to [the victim].” Jaquez was not

 warned of his Fifth Amendment rights under Miranda v. Arizona,

 384 U.S. 436 (1966), before this encounter.

¶2    Unlike a typical voice identification procedure, Jaquez was not

 merely asked to repeat the words heard by the victim during the

 robbery. Instead, Jaquez and the victim had a brief conversation

 during which Jaquez made statements that were nearly identical to

 the statements made by the robber. These statements were

 admitted at his criminal trial as substantive evidence of his guilt.

¶3    We must decide whether the admission of those statements

 violated Jaquez’s Fifth Amendment right against self-incrimination.

 We conclude that the statements should not have been admitted

 and further conclude that the error was not constitutionally

 harmless. Accordingly, we reverse Jaquez’s conviction and remand

 for a new trial.




                                    1
             I.   Relevant Facts And Procedural History

¶4    The prosecution’s evidence permitted the jury to find the

 following facts. At approximately 4:50 a.m., a masked man robbed

 an Adams County 7-Eleven and its store clerk at gunpoint. The

 robber directed the clerk to give him the money in the cash register,

 and told the clerk that as long as he cooperated, “he wouldn’t be

 harmed.”

¶5    The clerk gave the robber the money in the cash register —

 approximately $107, comprised of ten, five, and one dollar bills.

 The robber then left the store. The clerk immediately triggered the

 store’s silent alarm and called 911.

¶6    The clerk described the robber as male, wearing a blue

 bandana over his face, a white hat, black coat, blue jeans, white

 shoes, and white contact lenses.1 When officers arrived on scene,

 the clerk also told them that he recognized the voice of the robber

 as the voice of a prior customer. He said that when the robber told

 him that he would not harm him, the robber drew out, in an

 unusual manner, the “h” in the word harm.

 1 White contact lenses cover the iris of a person’s eye, thus making
 it difficult (if not impossible) to discern the person’s natural eye
 color.

                                   2
¶7    Roughly ten minutes after the robber left the 7-Eleven, Jaquez

 was walking north up a hill in the Lamplighter Mobile Home Trailer

 Park — about six blocks from the 7-Eleven — and came across Paul

 Harris sitting on his porch. Harris noticed that Jaquez “seemed a

 bit out of breath, a little sweaty, [and] kind of look[ed] a little tired.”

 The two started a conversation. Jaquez told Harris that he had

 been in an argument with his cousin, and that his cousin had

 driven off in their car. Jaquez explained that he lived in Pueblo,

 and asked Harris if he knew how to get to the nearest Greyhound

 bus station. Harris did not know where the Greyhound station was,

 so instead tried to explain how to get to the local bus. However, it

 became clear to him that Jaquez did not know the area well enough

 to understand the directions Harris was giving.

¶8    Jaquez then asked Harris to give him a ride to the bus stop.

 Harris initially refused. Jaquez asked again and told Harris that he

 was willing to pay him. Jaquez pulled a wad of cash out of his

 pocket, which, according to Harris, contained some ten, five, and

 one dollar bills. Harris then reluctantly agreed to give Jaquez a ride

 to the bus stop, but permitted Jaquez to first use his cell phone, his

 bathroom, and have a drink of water.


                                      3
¶9     The two started walking towards Harris’s car, but they saw a

  police car parked on the nearby corner. For reasons not explained

  by the record, Harris suggested that they go back to his house and

  wait until the police left the area. Jaquez instead suggested that

  Harris go pick up his car, and then meet him back at Harris’s

  house. Harris agreed. As he walked to his car, he was stopped by

  the police officer. After some questioning, Harris told the officer

  about his interactions with Jaquez.

¶ 10   Harris then took officers back to his house where Jaquez was

  supposed to be waiting. The officers searched Harris’s house and

  surrounding yard but did not find Jaquez. While the officers were

  speaking with Harris outside his house, Harris noticed Jaquez

  crouched between two cars, and pointed him out to officers.

¶ 11   An officer approached Jaquez, but Jaquez walked away. The

  officer told Jaquez to stop, but Jaquez started jogging. The officer

  ran after Jaquez and, a short distance away, the officer stopped

  Jaquez, handcuffed him, and placed him in the backseat of a police

  vehicle. At the time, Jaquez was wearing jeans, a black t-shirt, and

  white shoes; he had $28.58 in his possession. He did not have a




                                     4
  white hat, blue bandana, white contact lenses, black jacket, or a

  gun.

¶ 12     Shortly after Jaquez was apprehended, the 7-Eleven clerk was

  brought to the mobile home park for a show-up identification. The

  clerk was unable to make a visual identification because the robber

  had covered his face and disguised the color of his eyes with white

  contact lenses.

¶ 13     As an alternative to a visual identification, the police asked the

  clerk to speak to Jaquez to see if he could recognize Jaquez’s voice

  as the voice of the robber. Importantly, the police did not ask

  Jaquez to repeat the words the robber had used during the robbery.

  Instead, the officers told the clerk that he did not need to ask

  Jaquez any questions, but was told “to speak with [Jaquez] and tell

  him that, listen, I was just robbed and I don’t want to see you get in

  trouble or jammed up if you didn’t do this and just see if [Jaquez]

  would speak with [the clerk].”

¶ 14     At the time, Jaquez was in the backseat of the police vehicle in

  handcuffs with the window closest to him rolled down. The clerk

  stood next to the car and did exactly what the police told him to do:

  he told Jaquez that he did not want to see him get “jammed up” for


                                      5
  something he did not do. Jaquez responded by saying he “wouldn’t

  do anything like that . . . he wouldn’t harm him.” The clerk

  immediately walked to the nearest officer and identified Jaquez as

  the robber. Based on this identification, Jaquez was arrested and

  charged with aggravated robbery.

¶ 15   Jaquez moved to suppress both the out-of-court voice

  identification and the statements he made to the clerk during the

  voice identification procedure. After an evidentiary hearing, the

  trial court ruled that both would be admissible at trial.

¶ 16   The prosecution also presented testimony by an investigating

  officer who testified that in watching the surveillance video at the

  7-Eleven, he noticed that the robber had a distinct gait. This

  distinct gait drew the officer’s attention to the robber’s feet, which

  led him to notice an unusual crease in the robber’s jeans. The

  officer further testified that he compared a photo of Jaquez’s jeans

  to a still frame from the surveillance video from the 7-Eleven. From

  this, he concluded that Jaquez had the same unusual crease in his

  jeans as the robber.

¶ 17   Jaquez was convicted as charged. He appeals, arguing that

  the trial court erred by (1) admitting the statements made to the


                                     6
  clerk during a custodial interrogation in violation his Fifth

  Amendment rights; (2) admitting the clerk’s one-on-one voice

  identification because the identification procedure was unduly

  suggestive and unreliable in violation of his right to due process;

  and (3) permitting a police officer to give expert opinion testimony

  when he was not disclosed or qualified as an expert under CRE 702

  and Crim. P. 16(I)(a)(1)(III).

       II.    Jaquez’s Statements Were Admitted in Violation of the Fifth
                                  Amendment

¶ 18         Jaquez contends that the trial court violated his Fifth

  Amendment right against self-incrimination when it admitted the

  statements he made to the clerk during his voice identification. We

  agree.

                                 A.    Introduction

¶ 19         In its written order addressing the admissibility of Jaquez’s

  statements, the trial court found that the clerk’s colloquy with

  Jaquez constituted a custodial interrogation under Miranda. It also

  found, with record support, that the clerk was acting as an agent of

  the state. Nevertheless, the trial court determined that Jaquez’s

  statement, “I would not harm you,” made while he was in custody,



                                          7
  was admissible because Jaquez was merely asked to repeat the

  words as spoken by the robber. As a result, the trial court found

  that the statements were nontestimonial and thus not protected by

  the Fifth Amendment.

¶ 20   Had Jaquez been directed to say the words said by the robber

  for the purposes of the voice identification procedure, the trial

  court’s analysis would have been sound and consistent with the

  Fifth Amendment. But, the record does not support the factual

  underpinning of the court’s analysis.

¶ 21   At trial, the prosecutor introduced the statements both

  through the clerk and through a police officer who was standing

  nearby. The prosecutor had the following colloquy with the clerk:

             Q. And what was the response from the
             individual in the police car when you said --

             A. He said, “I wouldn’t harm you.”

             Q. What was your reaction when you heard
             that?

             A. It shocked me because it was exactly the
             same way, the same words that was [sic] said
             to me when I was being robbed.

             Q. And what, if anything, did you do?

             A. I immediately walked back to the back end
             of the police car, and I said, “That’s him.”

                                     8
  (Emphasis added.)

¶ 22   The prosecutor asked the officer:

            Q. Okay. So you were nearby?

            A. Yes.

            Q. And could you hear the conversation
            between [the clerk] and Mr. Jaquez?

            A. Yes.

            Q. What did you hear the defendant say?

            A. “I don’t mean you any harm.” “I don’t mean
            you no harm.” And because of our prior
            conversation about that specific verbiage and
            how unusual that would be said really in
            general, that was one of the main points of the
            conversation.

            Q. So that was very noticeable to you when
            you heard him say that?

            A. Yes.

  (Emphasis added.)

¶ 23   In its closing argument the prosecution emphasized that

  during the voice identification procedure Jaquez volitionally used

  the same words as the robber.

                             B.    Miranda

¶ 24   Miranda enforces a suspect’s constitutional right against

  self-incrimination by prohibiting the admission of statements


                                    9
  procured by custodial interrogation, unless the suspect was first

  advised of his rights. Miranda, 384 U.S. at 444. Miranda’s

  safeguards “only apply when a suspect is subject to both custody

  and interrogation.” Effland v. People, 240 P.3d 868, 873 (Colo.

  2010).

¶ 25      It is uncontested that Jaquez was in custody at the time of the

  voice identification. The Attorney General contends, however, that

  either (1) there was no interrogation; or (2) Jaquez’s statements

  were nothing more than a voice exemplar used to identify him,

  which normally would not constitute a testimonial statement

  protected by the Fifth Amendment. We address both contentions in

  turn.

                  1.   The Clerk was an Agent of the Police

¶ 26      We first note that there was no challenged interrogation by a

  police officer; instead, Jaquez’s statements at issue were made to a

  private citizen, the clerk. Therefore, the Fifth Amendment could

  only preclude the admission of Jaquez’s statement to the clerk if the

  clerk was an agent of the state. People v. Robledo, 832 P.2d 249,

  250 (Colo. 1992).




                                      10
¶ 27   “State action has been extended to include civilians acting as

  agents of the state in order to prevent law enforcement officials from

  circumventing the Miranda requirements by directing a third party

  to act on their behalf.” Id. “The test as to whether a private citizen

  has acted as an agent of the police for purposes of criminal

  investigation is whether the person ‘in light of all the circumstances

  of the case, must be regarded as having acted as an “instrument” or

  agent of the state.’” People v. Lopez, 946 P.2d 478, 481 (Colo. App.

  1997) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487

  (1971)).

¶ 28   The trial court found that the clerk was an agent of the state

  because he was acting at the specific direction of law enforcement

  officials. The Attorney General does not contend that this finding

  was clearly erroneous, a concession that is well supported by the

  record. The clerk only spoke with Jaquez at the direction and

  request of the police. The police told him what to say, and they

  stood nearby and listened to Jaquez’s response.

¶ 29   “Our role as an appellate court is to review the record to

  determine whether the trial court’s findings of fact are adequately

  supported by competent evidence and whether the court applied the


                                    11
  correct legal standard to these findings in resolving the issue before

  it.” Robledo, 832 P.2d at 251. Under these circumstances, the trial

  court correctly found that the clerk was acting as an “instrument”

  of the state. See Lopez, 946 P.2d at 481-82.

¶ 30   We next turn to whether the clerk’s interaction with Jaquez

  constituted an interrogation within the meaning of the Fifth

  Amendment.

  2.   The Clerk’s Colloquy with Jaquez Constituted an Interrogation

¶ 31   A suspect’s statement is in response to interrogation if he was

  “subjected to either express questioning or its functional

  equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

  Interrogation includes “any words or actions on the part of the

  police [or their agent] . . . that the police should know are

  reasonably likely to elicit an incriminating response.” Id. at 301.

  “The latter portion of this definition focuses primarily upon the

  perceptions of the suspect, rather than the intent of the police.” Id.

¶ 32   Whether a custodial interrogation occurred is a mixed

  question of fact and law. People v. Barraza, 2013 CO 20, ¶ 15.

  While we defer to the trial court’s findings of historical fact and will

  not overturn them if they are supported by the record, “we review de


                                     12
  novo the legal question whether those facts, taken together,

  establish that custodial interrogation occurred.” Id.

¶ 33   The trial court found that the interaction between the clerk

  and Jaquez was an interrogation for the purposes of Miranda. This

  conclusion is supported by the record. See People v. Wood, 135

  P.3d 744, 751 (Colo. 2006). The evidence presented at the

  suppression hearing indicated that officers directed the clerk to

  speak to Jaquez. They told the clerk to “just see if [Jaquez] would

  talk to [him].” The police instructed the clerk to tell Jaquez that he

  did not want Jaquez to get in trouble if he did nothing wrong —

  thus inviting Jaquez to make inculpatory (or exculpatory)

  statements. A reasonable officer directing this interaction should

  have known that such a statement by the clerk was “reasonably

  likely to elicit an incriminating response” from Jaquez. Innis, 446

  U.S. at 301.

¶ 34   We thus conclude that the colloquy between the clerk and

  Jaquez constituted an interrogation within the meaning of Miranda

  and Innis.




                                    13
         3.    Jaquez’s Statements Were Not a Voice Exemplar

¶ 35   The Attorney General nevertheless argues that even if there

  was a custodial interrogation, the admission of Jaquez’s statements

  did not violate the Fifth Amendment because the underlying

  purpose and use of the interaction was for the clerk to identify

  Jaquez’s voice, rather than for the substance of what Jaquez said.

  That is, the Attorney General contends that Jaquez’s statements

  were merely a voice exemplar.

¶ 36   If this were factually accurate, then the statements by Jaquez

  would not be subject to the Fifth Amendment’s protections. “One’s

  voice and handwriting are, of course, means of communication. It

  by no means follows, however, that every compulsion of an accused

  to use his voice or write compels a communication within the cover

  of the [Fifth Amendment] privilege.” Gilbert v. California, 388 U.S.

  263, 266 (1967). As another division of this court has said, “the

  Fifth Amendment does not protect ‘[p]articular characteristics of a

  person’s voice,’ such as ‘tone, accents, or speech impediments.’”

  People v. Ortega, 2015 COA 38, ¶ 28 (quoting York v.

  Commonwealth, 353 S.W.3d 603, 606 (Ky. 2011)).




                                    14
¶ 37   The question, therefore, is this: Were the words spoken by

  Jaquez merely a voice exemplar used to identify him, or were they

  volitional statements used by the prosecution as substantive

  evidence of his guilt? We conclude they were the latter.

¶ 38   Had the police (or the clerk) asked Jaquez to repeat the words

  used by the robber, his Fifth Amendment rights would not have

  been implicated. See Ortega, ¶ 28. But here, the clerk was directed

  to have a conversation with Jaquez to see if he could recognize

  Jaquez’s voice. The prosecution then used the very words that

  Jaquez chose to utter in response to this interrogation — and the

  fact that they were the same words used by the robber — as

  substantive evidence of Jaquez’s guilt. Jaquez’s use of the same

  words uttered by the robber obviously inculpated him, completely

  apart from the clerk’s voice identification.

¶ 39   Because Jaquez was subject to custodial interrogation and

  was not given Miranda warnings before being subjected to the

  interrogation, the court violated Jaquez’s Fifth Amendment rights

  by admitting his statements. Jaquez’s conviction can only be




                                     15
  upheld, therefore, if this error was harmless beyond a reasonable

  doubt. Chapman v. California, 386 U.S. 18, 24 (1967).2

       C.     The Erroneous Admission of Jaquez’s Statements Was Not
                             Constitutionally Harmless

¶ 40        “If a statement obtained in violation of Miranda was admitted

  as part of the prosecution’s case-in-chief, over the defendant’s

  objection, reversal is required unless the error was harmless beyond

  a reasonable doubt.” People v. Frye, 2014 COA 141, ¶ 6 (quoting

  People v. Vasquez, 155 P.3d 588, 592 (Colo. App. 2006)). Reversal

  is required if “there is a reasonable possibility that the [error] might

  have contributed to the conviction.” Chapman, 386 U.S. at 24

  (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). “[T]he




  2 The Attorney General also argues that even if there was a
  custodial interrogation, Jaquez’s statements were made knowingly
  and therefore were admissible at trial. To the extent we understand
  this argument, we reject it. Jaquez was not advised of his Fifth
  Amendment rights before he made the statements, and “unwarned
  custodial statements, whether or not voluntary, are inadmissible in
  the ‘government’s direct case, or otherwise, as substantive evidence
  of guilt.’” People v. Trujillo, 49 P.3d 316, 321 (Colo. 2002) (quoting
  United States v. Havens, 446 U.S. 620, 628 (1980)). The Attorney
  General’s argument appears to address the concept that voluntarily
  made unwarned statements may be admissible at trial for the
  limited purpose of impeaching the defendant. See id. But, the
  statements here were admitted in the prosecution’s case-in-chief,
  not as impeachment evidence.

                                       16
  State bears the burden of proving the error was harmless beyond a

  reasonable doubt.” Hagos v. People, 2012 CO 63, ¶ 11.

¶ 41    The evidence of Jaquez’s guilt (other than his statements to

  the clerk) consisted of the following:

           the voice identification made by the clerk;

           certain jailhouse phone calls made to Jaquez’s family in

            which he apologized for his mistake;

           an officer’s testimony that Jaquez and the robber had the

            same gait and crease in their jeans;

           Harris’s testimony regarding his interaction with Jaquez,

            including his testimony that he overheard Jaquez say on

            the phone that he “had the loot”; and

           Jaquez’s proximity to the scene of the crime.

¶ 42    While the question is close, we conclude that the prosecution

  has not met its burden to prove that the erroneous admission of

  Jaquez’s statements was harmless beyond a reasonable doubt. See

  id.

¶ 43    The voice identification and the fact that Jaquez used the

  same words as the robber were among the most convincing

  evidence of Jaquez’s guilt. Without Jaquez’s statements to bolster

                                     17
  the reliability of the identification, it is unclear what weight a finder

  of fact would assign to the identification alone.

¶ 44   The Attorney General relies heavily on the jailhouse phone

  calls as overwhelming evidence of Jaquez’s guilt. To be sure, the

  phone calls could be considered by a jury as incriminating evidence.

  But, Jaquez’s statements were ambiguous, at least with respect to

  the use of a gun. Thus, we do not place the same significance on

  the phone calls as does the Attorney General, at least in the context

  of determining whether the constitutional error was harmless

  beyond a reasonable doubt.

¶ 45   Contrary to the Attorney General’s suggestion, the fact that

  Jaquez was relatively close to the scene of the crime when he was

  apprehended actually weighs in Jaquez’s favor. The defense

  pointed out at trial that the prosecution did not explain how Jaquez

  could have disposed of the jacket, hat, bandana, contacts, gun, and

  most (if not all) of the stolen money in a place where neither the

  police nor police dogs could find them and still have had enough

  time to get to Harris’s home — roughly six blocks from the 7-Eleven

  — in ten minutes.




                                     18
¶ 46   In the end, we conclude that although there was substantial

  evidence of Jaquez’s guilt, there was not overwhelming evidence.

  We therefore cannot conclude that the guilty verdict was “surely

  unattributable to the error.” See Blecha v. People, 962 P.2d 931,

  942 (Colo. 1998). Accordingly, we reverse Jaquez’s conviction and

  remand for a new trial.

       III.   The Voice Identification Procedure was Impermissibly
                                 Suggestive

¶ 47   Because the issue may arise on a retrial, we address Jaquez’s

  contention that the admission of the clerk’s out-of-court voice

  identification violated his right to due process because the

  identification was impermissibly suggestive and unreliable. We

  agree that the identification was impermissibly suggestive, and if

  the prosecution again offers the voice identification on retrial

  (limited of course by our holding above),3 the trial court must make

  findings on the reliability of the identification.




  3 On retrial, if the prosecution offers the out-of-court identification,
  it may properly ask the clerk questions surrounding the
  identification, as well as the fact that the clerk made a positive
  identification. However, the prosecution may not introduce the
  actual words used by Jaquez during the identification and the fact
  that they were the same words as those used by the robber.

                                      19
              A.    Standard of Review and Applicable Law

¶ 48   We review the constitutionality of pretrial identification

  procedures as a mixed question of fact and law. People v. Whittiker,

  181 P.3d 264, 272 (Colo. App. 2006). Thus, we defer to the trial

  court’s findings of fact, but review its legal conclusions de novo.

  Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).

¶ 49   A defendant is denied due process of law if an out-of-court

  identification is so impermissibly suggestive and unreliable as to

  give rise to a very substantial likelihood of irreparable

  misidentification. Id. at 192.

¶ 50   In analyzing whether the admission of an out-of-court

  identification violates a defendant’s right to due process, the court

  must first determine if the identification was impermissibly

  suggestive. Id. at 191. If the defendant has not met this burden,

  the inquiry ends there and the identification is admissible. Id.

  However, if the court finds the identification procedure to be

  impermissibly suggestive, “the burden shifts to the People to show

  that despite the improper suggestiveness, the identification was

  nevertheless reliable under the ‘totality of the circumstances.’” Id.

  (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)).


                                     20
¶ 51   “One-on-one showup identifications are not per se violative of

  due process, although the procedure is viewed with disfavor

  because of its strong potential for unnecessary suggestiveness.”

  People v. Theus-Roberts, 2015 COA 32, ¶ 8 (citing People v.

  Mascarenas, 666 P.2d 101, 109 (Colo. 1983)). “Suggestive

  confrontations are disapproved because they increase the likelihood

  of misidentification, and unnecessarily suggestive ones are

  condemned for the further reason that the increased chance of

  misidentification is gratuitous.” Neil v. Biggers, 409 U.S. 188, 198

  (1972).

¶ 52   But, if the identification procedure is impermissibly

  suggestive, the court must then determine if the identification was

  nonetheless sufficiently reliable to permit the jury to consider it. In

  making that determination, the court must consider: (1) the

  opportunity of the witness to hear the suspect at the time of the

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

  prior description of the suspect’s voice; (4) the level of certainty

  demonstrated at the identification procedure; and (5) the time

  between the crime and confrontation. People v. Holden, 703 P.2d




                                     21
  603, 605 (Colo. App. 1985) (addressing the reliability of voice

  identification procedures); see also Bernal, 44 P.3d at 192.

                             B.   Application

¶ 53   At the suppression hearing, the trial court concluded that the

  one-on-one voice identification was not impermissibly suggestive.

  This conclusion is not supported by the record and is clearly

  erroneous. See People v. Singley, 2015 COA 78M, ¶ 25.

¶ 54   During the voice identification Jaquez was handcuffed in the

  back of a police vehicle, with multiple police officers standing near

  the vehicle. One-on-one showups are viewed with disfavor, even

  assuming there are no other corrupting influences. But, when

  “[t]he suggestive elements in [the] identification procedure made it

  all but inevitable that [the witness] would identify [the defendant]”

  the identification procedure was impermissibly suggestive. Foster v.

  California, 394 U.S. 440, 443 (1969).

¶ 55   Under the circumstances before us, we conclude that the

  one-on-one voice identification was impermissibly suggestive. But,

  as noted above, that does not end the inquiry. Instead, the court

  must next address the relevant factors under Bernal to determine




                                    22
  whether the identification was nonetheless sufficiently reliable, and

  thus admissible. 44 P.3d at 192.

¶ 56   Because of its erroneous determination that the one-on-one

  show-up identification was not impermissibly suggestive, the trial

  court did not address all of the Bernal factors to determine whether

  the identification was nevertheless sufficiently reliable to be

  presented to the jury. On remand, should the prosecution seek to

  present the identification evidence, the court must make

  appropriate findings under Bernal and determine if the

  identification was sufficiently reliable to allow it to be presented to

  the jury. See id.; see also People v. Portley, 857 P.2d 459, 465

  (Colo. App. 1992); Holden, 703 P.2d at 605.

                          IV.   Expert Testimony

¶ 57   Jaquez also contends that the trial court erred by allowing a

  police officer to testify regarding the specific gait of the robber

  without requiring him to be qualified as an expert. We do not know

  what evidence will be presented on retrial, and thus do not address

  this question. Instead, we only note that should the prosecution

  again offer this testimony, the court must analyze its admissibility




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  under the principles set forth in Venalonzo v. People, 2017 CO 9, a

  case decided after Jaquez’s trial.

                             V.   Conclusion

¶ 58   The judgment of conviction is reversed and the case is

  remanded for a new trial at which Jaquez’s statements to the clerk

  during the one-on-one identification procedure must be suppressed.

       JUDGE HAWTHORNE and JUDGE MILLER concur.




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