People v. Espinoza, 06CA0127.

CourtCourt of Appeals of Colorado
Citation195 P.3d 1122
Docket NumberNo. 06CA0127.,06CA0127.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ted Anthony ESPINOZA, Defendant-Appellant.
Decision Date03 April 2008

John W. Suthers, Attorney General, Alexander C. Reinhardt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CARPARELLI.

Defendant, Ted Anthony Espinoza, appeals the judgment of conviction entered upon a jury verdict finding him guilty of aggravated driving after revocation prohibited, driving under restraint—alcohol-related offense, eluding a police officer, failure to have insurance, and failure to stop at a stop sign. We affirm the convictions for aggravated driving after revocation prohibited, failure to have insurance, and failure to stop at a stop sign. We reverse the conviction for driving under restraint, vacate the conviction for eluding a police officer, and remand for correction of the mittimus.

I. Background

A police officer observed defendant driving a vehicle that failed to stop completely at a stop sign. After the officer activated his emergency lights and siren, defendant continued driving slowly for approximately four blocks before stopping. Defendant then got out of the vehicle, left the engine running, and fled on foot. Other officers were called to the area and soon found defendant hiding in a shed outside a nearby house. Defendant was arrested and his vehicle was searched. In the search, the officers did not find any proof of insurance.

A jury convicted defendant of aggravated driving after revocation prohibited (DARP), driving under restraint—alcohol-related offense, eluding a police officer, failure to have insurance, and failure to stop at a stop sign. This appeal followed.

II. Driving Record

Defendant contends the trial court erred when it admitted documents contained in his driving record. We disagree.

A. Confrontation

Defendant contends that admission of "proofs of service" attached to his driving record violated his right to confrontation. At trial, however, he objected only on the ground of hearsay, and did not argue that admission of the documents would violate his confrontation rights. Therefore, we review his Confrontation Clause argument for plain error. See People v. Vigil, 127 P.3d 916, 929-30 (Colo.2006).

We reverse for plain error only when an error is obvious and substantial and so undermines the fundamental fairness of the trial that serious doubt is cast on the reliability of the judgment of conviction. People v. Miller, 113 P.3d 743, 750 (Colo.2005).

When evaluating a Confrontation Clause issue, we must first determine whether the statement was testimonial. A trial court may not admit testimonial hearsay statements against a defendant unless the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Raile v. People, 148 P.3d 126, 130 (Colo.2006).

In Crawford, the Supreme Court provided several formulations that described, without adopting, a "core class of `testimonial' statements," including "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354.

In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Court provided further guidance, saying that statements made in response to police interrogation are testimonial when there is no ongoing emergency and "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

In Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo.2007), the Colorado Supreme Court held that a Colorado Bureau of Investigation laboratory (CBI lab) report was testimonial for purposes of Crawford. There, law enforcement contacted the defendant, searched his vehicle, and found a large block of cocaine. A CBI lab technician weighed the seized substance, analyzed it, and concluded that it was cocaine. The technician recorded these observations in a report that was provided to the prosecution. Hinojos-Mendoza, 169 P.3d at 664.

The supreme court concluded that the lab report was testimonial because it "was prepared at the direction of the police and a copy of the report was transmitted to the district attorney's office. There can be no serious dispute that the sole purpose of the report was to analyze the substance found in Hinojos-Mendoza's vehicle in anticipation of criminal prosecution." Hinojos-Mendoza, 169 P.3d at 667. The court explained that the fact that a document falls within the business records exception to hearsay does not automatically render it nontestimonial. Hinojos-Mendoza, 169 P.3d at 666.

In Thomas v. United States, 914 A.2d 1, 14 (D.C.2006), the defendant was apprehended for possession and sale of a controlled substance. A Drug Enforcement Agency laboratory analyzed the substance and issued a report that attested that the lab technician was a trained chemist and described how she conducted her analysis. The court concluded that the report was testimonial because it was designed to serve as testimony in the defendant's trial and attested to, among other things, the technician's qualifications, the reliability of her testing methods and procedures, their general acceptance in the forensic science community, the purity of the chemical reagents, and the operability of the instruments she used to reach her conclusions.

The Thomas court observed that the Supreme Court has described "testimonial" "in functional rather than categorical terms" and noted that the Court had focused "on the primary anticipated or intended use of the statement, not on whether the statement qualifies as an exception to the rule against hearsay or falls into some other arbitrary testimonial category." Thomas, 914 A.2d at 14. The court in Thomas opined that "most documents are not testimonial if they qualify as business records, because most such documents are created for ordinary business purposes unrelated to their potential use by the government in a criminal prosecution." Thomas, 914 A.2d at 14.

In Jackson v. United States, 924 A.2d 1016, 1021 (D.C.2007), the court held that copies of a trial court's docket entries and a notice to return to court, which the defendant had signed, were not testimonial. There, the defendant had been released from custody pending criminal proceedings and was required to appear in court on a later date, but failed to do so. The trial court admitted a docket entry, indicating that the defendant's case had been continued for one week, that he was present in court at that time, and that he was advised of the penalties for failing to appear on the continued date. The trial court admitted a second docket entry from the continued date indicating that the defendant failed to appear. Each document was initialed by the courtroom clerk. The court also admitted a notice the defendant had signed, which included the date of the scheduled hearing and the possible penalties for failing to appear.

On appeal, the court concluded that the docket entries and notice were not testimonial because their primary purpose "was not to document facts or events for future prosecution, but rather to satisfy administrative functions necessary to the operation of the court," and the notice's primary purpose was "not to replace live testimony in a speculative future prosecution, the predicate for which may never occur," but "to provide official written notice to the defendant about his or her future court date(s) and to chronicle that such notice was given." Jackson, 924 A.2d at 1021.

Similarly, here, defendant was apprehended on January 15, 2004, and charged with, among other things, aggravated driving after revocation. The prosecution submitted a Certification of Official Records signed by the Custodian of Records of the Department of Revenue. The records included a print-out of the computer data regarding defendant's driver history dated January 24, 2004, stating that defendant's license status was "REVOKE HABITUAL TRAFFIC OFFNDR [sic]." The records also included a Department of Revenue Form DR 2190, captioned "PROOF OF SERVICE," which stated, "It is unlawful for you to operate a motor vehicle on any roadway in Colorado." The document indicated that it was served on defendant on October 12, 2003. There were three other proofs of service on defendant in 1996 and 1998. Thus, all the documents existed before defendant committed the offenses for which he was prosecuted.

We conclude that the documents are not testimonial for purposes of Crawford because the proofs of service reflected the administrative status of defendant's driving privilege, and their primary functions were to notify him that he was not permitted to drive a motor vehicle in Colorado and to record that such notice was given. The documents were not created in response to an interrogation or a request from the prosecution regarding criminal conduct but were created before defendant engaged in the conduct for which he was charged. Although an objective person who prepared such a proof of service might reasonably believe it would be available in the event of a later traffic violation, we conclude that this possibility does not make the document testimonial where, as here, the document served a routine administrative function and was created before the charged crime occurred. See State v. King, 213 Ariz. 632, 146 P.3d 1274, 1280 (App.2006) (driving record not testimonial because it was maintained regardless of future criminal activity and existed independent of prosecut...

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