Colorado’s second-highest court reversed a defendant’s convictions out of Weld County last week, concluding the victim’s identification was unreliable and may have been the product of police influence.

In August 2019, a teenage pizza delivery driver was leaving his job. Just after he closed the door to his vehicle, a man opened it, told the driver to move into the passenger seat and gave the impression he had a gun. The victim fled out the passenger door and the perpetrator drove off.

Police identified Ivan Jose Gallegos-Valdez as the culprit. Although his DNA was on items near a bench close to the robbery site, DNA and fingerprints from items in the recovered vehicle did not match Gallegos-Valdez. Prosecutors charged him with aggravated robbery, menacing and aggravated motor vehicle theft. Jurors convicted him and Gallegos-Valdez received 12 years in prison.

On appeal, Gallegos-Valdez challenged, among other things, the victim’s identification of him as the perpetrator — which a trial judge previously deemed problematic, but admissible as evidence.

During a hearing before then-District Court Judge Thomas J. Quammen, Eaton police Sgt. Matthew Rundle testified about his investigation. He said the victim, identified as K.B., gave a description of the perpetrator’s clothing, but Rundle did not remember if K.B. described what the man himself looked like.

Rundle asked surrounding businesses for surveillance footage. He found one video of the robbery and another video from inside a liquor store where a man who seemingly matched the description was captured on camera.

Rundle then told K.B. that “what you’re describing happened, we watched it on the video surveillance from the liquor store, and that individual was actually inside the liquor store.”

He showed K.B. a screenshot from the video, reiterating that “the individual, before the crime happened, went into the liquor store.” K.B. “got excited and said, ‘That’s him.'”

The following day, after Rundle determined Gallegos-Valdez was the man on the video, K.B. met Rundle at the police station. K.B. “instantaneously” identified Gallegos-Valdez as the perpetrator from a photo lineup of Gallegos-Valdez and five similar-looking men.

Quammen initially voiced his concerns with the way K.B.’s identification of Gallegos-Valdez took place.

“The officer is basically telling the victim, ‘We saw the crime occur. We saw that the person who committed this crime was in the liquor store just before this. Now, is this a picture of him?'” Quammen said. “That is suggestive. He didn’t just show him the photograph and — and asked if this was or was not him.”

However, Quammen recited the factors that, in his view, showed the identification of Gallegos-Valdez was reliable after all.

First, K.B. “had the opportunity to witness, and had a good view of” the perpetrator. Second, the perpetrator “was the focus of his attention.” Third, Rundle “did get a description of” the perpetrator’s facial features. Fourth, K.B. was highly certain Gallegos-Valdez was the perpetrator. Finally, only a couple of hours had passed between the robbery and the initial identification.

A three-judge Court of Appeals panel agreed some of those factors were valid. But in the July 10 opinion, Judge Craig R. Welling noted major concerns about Quammen’s analysis. Notably, because K.B. had not testified at the hearing, the only information about the identification came from the sergeant.

“Consider Sergeant Rundle’s testimony — he couldn’t remember any identifying information that K.B. communicated to him before identifying Gallegos-Valdez as the person who stole his car,” wrote Welling. “Sergeant Rundle didn’t testify what color K.B. said the perpetrator’s clothes were, how tall or old he was, his approximate weight, what his facial hair looked like, or his skin, hair, or eye color.”

Welling elaborated that there was no evidence K.B. “had a good view of” the perpetrator, as Quammen had found. Nor was there any indication the robber was “the focus of” K.B.’s attention in the less-than-20-second encounter.

As for Quammen’s statement that Rundle “did get a description of” the perpetrator’s physical features from K.B., that was not what Rundle said on the witness stand.

“Because Sergeant Rundle’s testimony lacked any detail, the court, as the fact finder, couldn’t independently assess whether K.B.’s description of the man’s identifying features matched Gallegos-Valdez. That’s problematic,” wrote Welling.

Because the findings of reliability were flawed and Rundle had effectively told K.B. that Gallegos-Valdez was the perpetrator before obtaining the identification, the panel concluded the identification evidence should have been excluded from trial. 

It ordered a new trial.

The case is People v. Gallegos-Valdez.