People v. Gonzales, Court of Appeals No. 16CA0750

• Decision Date: 07 March 2019
• Docket Number: Court of Appeals No. 16CA0750
• Citation: 474 P.3d 124
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel J. GONZALES, Defendant-Appellant.
• Court: Colorado Court of Appeals

474 P.3d 124

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Daniel J. GONZALES, Defendant-Appellant.

Court of Appeals No. 16CA0750

Colorado Court of Appeals, Division I.

Announced March 7, 2019

Philip J. Weiser, Attorney General, Melissa D. Allen, Assistant Attorney General, Colleen R. Wort, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BERGER

¶ 1 This case addresses the standards for authenticating an audio recording under CRE 901. Defendant, Daniel J. Gonzales, appeals his convictions for first degree murder with intent and after deliberation, first degree felony murder, abuse of a corpse, stalking, arson, burglary, and aggravated robbery. He claims that the trial court did not comply with the authentication rules prescribed by a division of this court in People v. Baca , 2015 COA 153, 378 P.3d 780, when it admitted a voicemail purportedly left by Gonzales for his murder victim.

¶ 2 We reject Gonzales's claim because, to the extent Baca purports to establish an exclusive rule for the authentication of a voice recording, we decline to follow it. We also conclude that when the flexible principles of authentication set forth in CRE 901 are applied, the voicemail was properly authenticated. Finally, we conclude that the trial court properly admitted a photograph depicting him shirtless, which exhibited two tattoos on his arms. Having rejected all of Gonzales's claims on appeal, we affirm.

I. Relevant Facts and Procedural History

¶ 3 The evidence admitted at trial, particularly the full confession Gonzales made to the police, established the following facts. Gonzales grew up down the street from the victim and from a young age was sexually attracted to the victim. When he was about eighteen, Gonzales and a friend broke into the victim's house. The friend stole a TV and a VCR while Gonzales hunted for clues in the house that the victim was gay. Gonzales also stole some of the victim's clothing.

¶ 4 Gonzales eventually moved away from the victim's neighborhood, but his interest in the victim did not disappear. Years later, Gonzales returned to the victim's house, breaking in through the back door. After gaining entry, Gonzales grabbed a large knife from the kitchen and waited a substantial period of time for the victim to return. When he did, Gonzales repeatedly stabbed him in the neck, killing him. Gonzales then sexually assaulted the victim's dead body and attempted, unsuccessfully, to set the house on fire to destroy the evidence. Gonzales fled the scene with a credit card, debit card, and cash that he had taken from the victim's wallet. He was arrested a short time later in Florida.

¶ 5 At trial, the prosecution presented a video recording of Gonzales's confession, as well as other evidence. The jury convicted Gonzales of all charges, the court sentenced him to life in prison without the possibility of parole plus forty-eight years, and he now appeals.

II. The Trial Court Did Not Abuse Its Discretion When It Admitted the Voicemail

¶ 6 Gonzales first argues that the trial court erred in admitting a voicemail allegedly left by Gonzales for the victim because the prosecution did not properly authenticate the recording of the voicemail under the test set out in Baca , ¶ 30.

¶ 7 We review a trial court's evidentiary rulings for an abuse of discretion.

Davis v. People , 2013 CO 57, ¶ 13, 310 P.3d 58. A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or if its ruling is based on an erroneous view of the law. People v. Hard , 2014 COA 132, ¶ 22, 342 P.3d 572.

A. Additional Factual Background

¶ 8 After the police completed their crime scene analysis, the victim's sister went to the house to put the victim's affairs in order. She found a microcassette audiotape along with documents related to an earlier burglary of the victim's house. On the tape, a man says that he has the victim's pajamas and jeans. He also says that he is going to return those items to the victim, but not the other items that were stolen. The sister listened to the tape and, recognizing its value, gave it to the police.

¶ 9 At trial, one of the detectives who had interviewed Gonzales after his arrest testified that he had also watched the video of that interview and had compared Gonzales's voice in the interview to the voice on the tape. The detective testified that the voice on the tape sounded like Gonzales's voice. On that basis, the prosecutor argued that the tape recording had been properly authenticated. Gonzales objected to the admission of the tape recording of the voicemail on authentication grounds, but the trial court overruled the objection.

B. Analysis

¶ 10 In Baca , a division of this court held that

[i]f no witness with independent knowledge of the content of the [recording] can verify the accuracy of the recorded conversation, the proponent must instead present a witness who can verify the reliability of the recording process, by establishing the factors laid out in Alonzi : the competency of the recorder, the reliability of the recording system, the absence of any tampering with the recording, and the identification of the speakers.

Baca , ¶ 30 (citing Alonzi v. People , 198 Colo. 160, 163, 597 P.2d 560, 562 (1979) ). In so doing, the division appears to have established an exclusive rule, regardless of the factual circumstances presented, to authenticate an audio recording.¹

¶ 11 In devising its exclusive test for the authentication of an audio recording, the division relied on the Colorado Supreme Court's Alonzi decision (and other authorities) that predated the supreme court's adoption of the Colorado Rules of Evidence. Baca , ¶¶ 26-28, 30.

¶ 12 The Attorney General argues that Baca was wrongly decided and is inconsistent with the language and underlying purpose of CRE 901. To the extent that Baca holds that the only way an audio recording can be authenticated is to meet one of the two alternatives stated in Baca ,² we agree with the Attorney General.³

1. CRE 901 Does Not Prescribe Exclusive Tests for the Authentication of Evidence; Instead, CRE 901 Requires Trial Courts to Consider All the Circumstances Surrounding the Evidence

¶ 13 "The burden to authenticate ‘is not high — only a prima facie showing is required,’ and ‘a district court's role is to serve as a gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.’ " People v. Glover , 2015 COA 16, ¶ 13, 363 P.3d 736 (quoting United States v. Hassan , 742 F.3d 104, 133 (4th Cir. 2014) ).

¶ 14 CRE 901, not common law decisions that predate the adoption of the Colorado Rules of Evidence, governs the authentication of evidence in Colorado courts. See People v. Ramirez , 155 P.3d 371, 374-75 (Colo. 2007) (The Colorado Rules of Evidence "govern the admissibility of expert testimony"; prior to the adoption of these rules, "admissibility of expert testimony was governed by common law.").

¶ 15 There is only one rule stated in CRE 901. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." CRE 901(a). The balance of CRE 901 is a series of "illustrations," not black-letter rules. Subsection (b) explicitly states that the examples given are "[b]y way of illustration only, and not by way of limitation."

¶ 16 Notably, one such illustration states that "[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker" is consistent with the authentication requirements in CRE 901(a). CRE 901(b)(5). In our view, this illustration does not establish that a voice recording can always be authenticated by a voice identification alone.⁴ But this illustration, along with the others included in CRE 901(b), does demonstrate that the relevant considerations in authenticating a voice recording are not limited to those set out in Baca .

¶ 17 The Baca division relied heavily on a decision by the Colorado Supreme Court that predated the adoption of the Colorado Rules of Evidence. Baca , ¶¶ 26-27, 29 (citing Alonzi , 198 Colo. at 163, 597 P.2d at 562 ). Alonzi , in turn, "note[d] with approval the test set out in United States v. Biggins , 551 F.2d 64 (5th Cir. 1977)," which is similar to the test established in Baca . 198 Colo. at 163, 597 P.2d at 562. But, in a portion of Biggins not quoted by the supreme court in Alonzi (and not noted by the Baca division), the Fifth Circuit also stated, "[i]f the trial judge independently determines that the recording accurately reproduces the auditory evidence, however, his discretion to admit the evidence is not to be sacrificed to a formalistic adherence to the standard we establish." 551 F.2d at 67.

¶ 18 Moreover, there is a real question whether the portion of Alonzi relied on by the Baca division was dictum. As stated by the supreme court, the precise question presented in Alonzi was whether the proponent of an audio recording was required to prove a chain of custody. Alonzi , 198 Colo. at 163, 597 P.2d at 562. The supreme court held that a chain of custody was not always required. Id. Having definitively answered the question raised by the appellant, the court nevertheless addressed other matters not necessary to its decision. Id.

¶ 19 Even if the supreme court's statements in Alonzi regarding the required methods to authenticate an electronic recording constitute a holding of the court, and not dictum, the source of authority for both Alonzi and the Colorado Rules of Evidence is the same — the Colorado Supreme Court. See Colo....