Photo lineup questioned in homicide

ALAMOSA — In district court on Friday District Judge Michael Gonzales denied a motion to exclude a photo lineup from trial evidence and is considering another similar motion regarding a single photo used to identify the suspect of a fatal hit and run in January 2017.

The alleged driver involved in a Highway 285 crash near the Alamosa/Conejos County line by Estrella on January 16, 2017, Angel Nieto, 32, is accused of fleeing the accident scene afterwards, leaving his passenger Marcie Quintana, 24, of Alamosa to die. Multiple trials are scheduled this spring for Nieto on this and other cases pending against him. This case is scheduled for trial on April 9.

In the case before the court on Friday, Nieto is charged with vehicular homicide.

Nieto’s attorney Public Defender Amanda Hopkins argued on Friday that a photo lineup shown to witnesses after the incident to identify the suspect was impermissibly suggestive and should be excluded from evidence, a motion the judge denied after hearing from witnesses and 12th Judicial District Attorney Crista Newmyer-Olsen on Friday morning.

Hopkins similarly argued that a single photo shown to the driver of the other car the evening of the crash was also misleading and should be excluded. The judge is considering that motion and has scheduled a further hearing on February 21 to conduct a status hearing on the case and rule on the motion. He said any plea agreements in these cases should be worked out by that time also. Hopkins said the DA’s office had set the previous day as the deadline to accept a plea, and Nieto had declined the DA’s offer.

Witnesses testifying separately from each other on Friday had identified Nieto as the person they saw asking for a ride at the accident scene, and Colorado State Trooper Adam Jennings told the judge the vehicle Nieto was allegedly driving belonged to Nieto’s mother and was known by local law enforcement as a vehicle that Nieto had frequently used before that night.

On that basis, Trooper Jennings asked Alamosa Police Sergeant Joey Spangler to send him a photo the police department had of Nieto, and the trooper showed that to Dylan Morris, now 18, who was the driver of the other vehicle involved in the crash. Morris confirmed that was the person he had seen following the crash asking him and others for a ride “to get out of here.” Trooper Jennings said Morris did not hesitate in identifying Nieto as the person he had seen at the crash site.

Authorities issued a BOLO (Be On the Lookout) alert for Nieto who was subsequently detained.

Newmyer-Olsen said there was an urgency in this case in identifying the driver who had left the scene of this fatal accident, and Morris was certain and specific in identifying who that person was. Hopkins disagreed that Nieto’s photo needed to be shown to Morris at that time and argued that authorities believed the driver was Nieto “and they wanted to get him.”

She also argued that Morris was shaken up, tired from a long shift at work and undoubtedly concerned about his vehicle being totaled. It was also dark, and he did not have a long time to look at the driver to be able to identify him.

Morris, who 10 days later also identified Nieto out of a photo lineup, said one of the distinctive physical characteristics he noticed about Nieto was a tattoo above his eyebrow.

A senior at Centauri at the time of the January 2017 crash, Morris related that on the night of the crash he was heading home from working at McDonalds where his shift had ended about 9 p.m. A vehicle in the oncoming lane apparently lost control on the icy road, veered into his lane, and the two vehicles collided, he said. Morris said he immediately called the police and his parents. He did not immediately see the driver of the other vehicle, he said, but the driver subsequently asked Morris for a ride “to get out of here,” and Morris said he told him, “You hit me. I can’t give you a ride.” Morris was waiting for police (state patrol) to get there at that point, he said, and was talking to other motorists who stopped to see if they could help. Some of them were his classmates from Centauri.

Morris said when he refused to give the other driver a ride, the man “moved on to asking other people … other people that stopped.”

Morris did not see him after that, he said. He added that after his parents arrived and he was sitting in their vehicle, a trooper showed him a photo on his cell phone, and Morris identified the person as the other driver. He said he could tell it was the same person by the eyebrow and neck tattoos.

Morris later identified Nieto out of a photo lineup shown to him and other witnesses at Centauri High School. When Hopkins asked Morris why he chose the photo of Nieto out of the photo lineup, he said, “because that’s the person I saw.”

Colorado State Patrol Investigator Cordell Maxwell testified about how the photo array or lineup was prepared and shown to witnesses. With information about Nieto, he asked the Department of Revenue to develop a photo lineup from its database, which it did. The photo lineup was composed of six pictures including one of Nieto. The Department of Revenue compiled the photo lineup to feature men with similar characteristics such as facial hair, eye color and hair color, Maxwell explained.

Newmyer-Olsen argued that the photo array was fair and consistent with legal case-based standards, such as the photos reflecting similar appearances in race, age, hair type and other similar characteristics. She said the photos in this lineup were people with similar tattoos, for example.

Hopkins disagreed and argued to the judge that there were not enough similarities among the photos in the lineup to keep Nieto from obviously standing out. For example, she said, no one else in the lineup had a tattoo above the eye, although more than one person pictured had neck tattoos, as does Nieto. Witness descriptions had placed the suspect in his 30’s, and it was clear in the photo lineup that Nieto was older than the other five who were depicted, Hopkins added.

Judge Gonzales said in reviewing the photo lineup, case law, testimony and documentation, he was impressed that DMV was able to put together “what I consider a fair and impartial lineup of individuals.” The judge said the number of photos was appropriate, the backgrounds in the pictures were similar, the ethnicity was consistent in all of the photos, hair and other features were also similar and more than one person had neck tattoos. He said Nieto’s eyebrow tattoo did not stand out so much that it couldn’t be viewed as just eyebrow hair.

Finding that the photo lineup was not impermissibly suggestive, he denied the defense counsel’s motion to exclude it.

Regarding the single photo, the judge said he needed more time to review the court cases that the attorneys cited.

Caption: A photo like this one of Angel Nieto was at issue in a Friday court hearing./Courtesy photo