Defendant Randy C. Nees, in a consolidated appeal, challenges his convictions in the District Court of La Plata County for aggravated robbery
The defendant also contends that the trial court should have dismissed habitual criminal charges as outside the scope of the statute [section 16-13-101, C.R.S. 1973 (1978 Repl. Vol. 8, current version in 1979 Supp.)] because they relate to offenses committed after the one for which he was being tried. We agree and reverse the habitual criminal conviction in No. CR-588.
The F.B.I. and local law enforcement officers suspected the defendant had committed extortion of a Durango bank on March 30, 1976. Their investigation of the extortion uncovered evidence linking the defendant to a series of robberies in Durango, including the Ramada Inn on February 11, 1976, and the Holiday Inn on March 24, 1976.
On March 30, 1976, the defendant was arrested for the bank extortion. While in custody on March 31, 1976, he was advised of his Miranda
On April 1, 1976, the Durango police conducted a line-up, and the victims of the robberies identified the defendant. The police
Nees was convicted on May 28, 1976 in federal court for the March 30, 1976, bank extortion. On March 2, 1977, he was found guilty of the March 24, 1976 Holiday Inn robbery. The day he was sentenced for that robbery, the prosecution added habitual criminal counts based on the federal conviction and the Holiday Inn conviction to the information for the February 11, 1976, Ramada Inn aggravated robbery. Subsequently, a jury returned guilty verdicts on the aggravated robbery and habitual criminal counts.
Testimony about a line-up may be challenged in a pre-trial hearing or at trial on the basis that the line-up was unduly suggestive. From police and witness testimony at the suppression hearing and trials we know that each victim viewed the line-up separately. They first saw the participants in full view and then wearing masks and hats which matched the descriptions given by the victim. Each participant repeated the robber's words.
In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the United States Supreme Court held that a pre-trial identification would be unduly suggestive if it gave "rise to a very substantial likelihood of irreparable misidentification" 390 U.S. at 384, 88 S.Ct. at 971. See also Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The likelihood of misidentification is determined on a case-by-case basis, with the court reviewing the totality of the circumstances. People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977). Here the testimony indicated that there was no gross disparity in height or build among the participants in the line-up. All were dressed alike, even when they donned hats and masks similar to those worn by the robber. Although there was some difference in age among the participants, the testimony does not indicate that the line-up was conducted in a manner which "suggested" a culprit to the victims. From the totality of the circumstances we conclude that the line-up was not impermissibly suggestive. Simmons, supra; Pickett, supra.
Because we find that the line-up was properly conducted, we do not need to consider whether there was an independent basis for the in-court identification of the defendant by the witnesses. Testimony about the line-up and the in-court identification were properly admitted.
The District Attorney amended the information for the Holiday Inn robbery to add habitual criminal counts when the defendant was convicted for criminal incidents occurring after the Holiday Inn robbery. The trial court denied the defendant's motion to dismiss the new counts, and a jury found the defendant guilty of being an habitual criminal under section 16-13-101, C.R.S. 1973 (1978 Repl. Vol. 8, current version in 1979 Supp.).
Section 16-13-101 provides:
The trial court interpreted the statutory language, "who, within ten years of the date of the commission of the said offense, has been twice previously convicted," to mean that a conviction may be ten years before or after the commission of the offense
We interpret "twice previously convicted" to refer back to "commission of the said offense." Thus, the ten year limitation applies only to convictions previous to the commission of the offense subject to the habitual criminal penalty enhancement. Therefore, in the instant case, it was improper for the trial court to have allowed convictions which were sustained after the commission of the subject crime to be the basis for habitual criminal counts.
There are two reasons for our statutory interpretation. First, the habitual criminal statute shall be narrowly construed in favor of the accused. Smalley v. People, 134 Colo. 360, 304 P.2d 902 (1956). Second, the policy of the habitual criminal statute is to punish repeat offenders. People v. District Court, 192 Colo. 375, 559 P.2d 235 (1977).
The general rule is that penalty enhancement statutes for repeat offenders apply only if the presently charged offense was committed after there had been a conviction of any offenses sought to be used as a basis for the penalty enhancement. See, e. g., People v. Phillips, 56 Ill.App.3d 689, 371 N.E.2d 1214, 14 Ill.Dec. 161 (1978); State v. Neal, 347 So.2d 1139 (La. 1977); Cooper v. State, 259 Ind. 107, 284 N.E.2d 799 (1972); State v. Midell, 40 Wis.2d 516, 162 N.W.2d 54 (1968). But see Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976); United States v. Hilliard, 366 A.2d 437 (D.C. 1976).
The deterrent purpose of the statute is to put the defendant on notice that future conduct of the same kind will result in more severe penalties. People v. District Court, supra. Enhanced penalty statutes warn a first offender of the consequences of a second conviction. Moreover, it is not known legally that an offense has been committed until there is a conviction. An enhanced penalty should not be imposed until the offender has the opportunity to reform because of the salutary discipline from the punishment for the first conviction. People v. Phillips, supra.
A conviction such as the one here, which imposes the more severe penalty for the first offense, does not comply with the statutory objectives.
The trial court erred in denying the defendant's motion to dismiss the habitual criminal charges. Therefore, we reverse the defendant Randy Nees' habitual criminal conviction in No. CR-588.
Judgment in No. CR-587 affirmed.
Judgment in No. CR-588 for aggravated robbery affirmed, and for habitual criminal reversed.