Peo v. Cousett

23CA0711 Peo v Cousett 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0711

El Paso County District Court No. 21CR5216

Honorable Laura N. Findorff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Preston Michael Cousett,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A

Opinion by CHIEF JUDGE ROMÁN

Hawthorne* and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, 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. 2023.

1

¶ 1 Defendant, Preston Michael Cousett, appeals the judgment of

conviction entered upon jury verdicts finding him guilty of four

counts of aggravated robbery, four counts of menacing, and two

counts of theft. He contends that the trial court reversibly erred by

failing to sua sponte assess whether a victim’s first time in-court

identification of him as the perpetrator was constitutionally reliable

and whether the identification was admissible under the rules of

evidence. Cousett argues that, had the court conducted either

analysis, the identification testimony would have been excluded.

We affirm.

¶ 2 In Neil v. Biggers, 409 U.S. 188, 199-200 (1972), the United

States Supreme Court held that the constitutional right to due

process requires a trial court to assess whether, under the totality

of the circumstances, an out-of-court identification or an in-court

identification from a witness at trial is reliable. See also Garner v.

People, 2019 CO 19, ¶¶ 2, 36-37. In Garner, the Colorado Supreme

Court concluded that Biggers’ reliability assessment requirement

did not apply to a first time in-court identification that is not

preceded by an impermissibly suggestive pretrial identification

procedure arranged by law enforcement and where nothing beyond

2

the inherent suggestiveness of the ordinary courtroom setting made

the in-court identification constitutionally suspect. Id. at ¶¶ 39, 62,

69.

¶ 3 Cousett argues that Garner was wrongly decided. But he

correctly acknowledges that we are bound by this opinion and

unable to depart from its holding. See People v. Eason, 2022 COA

54, ¶ 68 (appellate courts are bound by our supreme court’s

decisions). Because Cousett does not assert that the victim’s first

time in-court identification was preceded by an impermissibly

suggestive pretrial identification procedure or was impermissibly

suggestive beyond that of the ordinary courtroom setting, we reject

his constitutional challenge to the identification testimony.

¶ 4 Cousett alternatively argues that the trial court should have

excluded the victim’s in-court identification under the rules of

evidence. See Garner, ¶ 68 (“That due process does not require a

reliability hearing under Biggers does not strip judges of their role

as gatekeepers under the rules of evidence.”). He asserts that the

court should have sua sponte excluded the unobjected to

identification because (1) the victim did not sufficiently observe the

perpetrator to make an admissible identification pursuant to CRE

3

602 and 701 and (2) the probative value of the victim’s identification

was substantially outweighed by the danger of unfair prejudice, as

prohibited by CRE 403.

¶ 5 We conclude that Cousett did not establish that the trial court

plainly erred by failing to sua sponte apply the rules of evidence to

exclude the in-court identification. See id. (“We cannot hold that it

was plain error for the trial court not to exclude the identifications

under CRE 403, 602, or 701 sua sponte.”). Importantly, we note

that Cousett did not explain why the admission of the identification

testimony, if error, would have warranted reversal under a plain

error review. See People v. Snelling, 2022 COA 116M, ¶ 33 (under

the plain error standard, we will reverse an unpreserved evidentiary

error only if the error was obvious, substantial, and so undermined

the fundamental fairness of the trial itself as to cast serious doubt

on the reliability of the judgment of conviction).

¶ 6 The judgment is affirmed.

JUDGE HAWTHORNE and JUDGE BERGER concur.