People v. Ortega

• Decision Date: 20 October 2016
• Docket Number: Court of Appeals No. 13CA0547
• Citation: 405 P.3d 346
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Raymond Lee ORTEGA, Defendant–Appellant.
• Court: Colorado Court of Appeals

405 P.3d 346

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

v.Raymond Lee ORTEGA, Defendant–Appellant.

Court of Appeals No. 13CA0547

Colorado Court of Appeals, Div. V.

Announced October 20, 2016

Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Stephen C. Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE ROMÁN

¶ 1 Defendant, Raymond Lee Ortega, appeals his conviction for aggravated robbery, as well as his adjudication as a habitual offender. We affirm.

I. Background

¶ 2 Two men, one wearing a stocking over his head and one unmasked, held up a fast-food restaurant. The unmasked man pointed a handgun at the employee behind the register and demanded money. He then shot the employee in the arm as the employee fled. When the two men were unable to open the register, they carried it off.

¶ 3 From the restaurant's surveillance video, the police identified the unmasked man as David Maestas. The police also found a car belonging to Maestas's wife, which they believed had been used during the robbery.

¶ 4 A search of the car turned up, among other things, a cell phone and a pair of jeans consistent with those worn by the masked man in the surveillance video. Analysis showed that defendant's DNA was on the waistband and in the pockets of the jeans. The cell phone belonged to Maestas's wife, but she testified that Maestas also used the phone and had taken it from her a couple of weeks before the robbery. Phone records showed several calls in the days around the robbery from this cell phone to a number identified in the phone's contact list as "Ray's mom."

¶ 5 A jury convicted defendant of aggravated robbery. After a separate trial, the court adjudicated defendant a habitual criminal.

¶ 6 Defendant appeals both his conviction for aggravated robbery and his adjudication as a habitual offender. He contends that (1) his right to confrontation under both the United States and Colorado Constitutions was violated by admission of the cell phone records and the custodian's certification; (2) he was denied a fair trial because the prosecutor misstated the DNA evidence; and (3) during his habitual trial, his right to confrontation under the state constitution was violated by admission of sentencing and prison records.

II. Defendant's Confrontation Right Pertaining to Phone Records

¶ 7 Defendant contends that the admission of phone records violated his right to confrontation under both the United States and Colorado Constitutions. We disagree.

A. Admission of Phone Records

¶ 8 The investigating detective testified that he requested from the phone company, Cricket, records pertaining to the phone number attached to the cell phone found in the car. The detective testified that he received a CD from Neustar, Inc. (Neustar), the company that kept Cricket's records, with a declaration from the custodian of records attached. The detective testified, based on the records, that there had been a number of calls from the cell phone to a certain number three days before the robbery, as well as on the days before and after the robbery. The detective testified that the receiving number was labeled in the cell phone's address book as "Ray's mom," and that when he called the number, the recorded message reported, in a female voice, that he had reached the Ortegas.

B. Federal Confrontation Clause

¶ 9 Under the United States Constitution, a criminal defendant "shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. In 2004, the Supreme Court explained that when a declarant does not testify at trial, testimonial statements are admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Supreme Court later held that, under the Crawford formulation, non testimonial hearsay does not implicate the Federal Confrontation Clause. See Michigan v. Bryant, 562 U.S. 344, 354–59, 378, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) ; People v. Phillips, 2012 COA 176, ¶ 75, 315 P.3d 136.

¶ 10 "Testimony" is "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (alteration in original) (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). "Testimonial statements" include

ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; 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.

Melendez–Diaz v. Massachusetts, 557 U.S. 305, 310, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (alteration in original) (quoting Crawford, 541 U.S. at 51–52, 124 S.Ct. 1354 ). More concisely, where "a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony," the Confrontation Clause is not implicated. Bryant, 562 U.S. at 358–59, 131 S.Ct. 1143.

¶ 11 According to defendant, the trial court erred by admitting the phone records in violation of his federal right to confrontation. He argues that (1) the phone records were testimonial and (2) the declaration of the custodian for the phone records was testimonial. We disagree with both arguments, concluding instead that the trial court correctly determined that the phone records and attestation were not testimonial and thus not subject to the Confrontation Clause.

¶ 12 In United States v. Yeley–Davis, 632 F.3d 673 (10th Cir. 2011), the Tenth Circuit considered and rejected similar arguments that both cell phone records (admitted pursuant to the business records hearsay exception) and a certification by the custodian of records were testimonial. The Tenth Circuit concluded that the phone records were not testimonial because they were kept in the course of the phone company's regularly conducted business, rather than created simply for litigation. Id. at 679. As to the custodian's certification of the phone records, the Tenth Circuit acknowledged that the custodian "objectively could have foreseen that the certification and affidavit might be used in the investigation or prosecution of a crime." Id. at 680. Nonetheless, that court held that certificates of authenticity, the purpose of which is merely to authenticate the phone records and not to establish or prove some fact at trial, are not testimonial. Id.

¶ 13 We are persuaded by the reasoning in Yeley–Davis and apply it in this case. Here, according to the declaration from the custodian of records, the records of defendant's phone activity introduced in this case

a) Were made at or near the time of the occurrence of the matters set forth in the records by, or from information transmitted by a person with knowledge of those matters;

b) Were kept in the course of a regularly conducted business activity; and

c) Were made by the regularly conducted activity as a regular practice.

Because the records, made at or near the time of the phone activity, were made and kept as a regular practice in the course of Neustar's regularly conducted business activity, and not for the purpose of establishing or proving some fact at trial, the phone records are not testimonial. See id.; United States v. Green, 396 Fed.Appx. 573, 574–75 (11th Cir. 2010) ("[B]ecause the [cell phone] records were generated for the administration of Metro PCS's business, and not for the purpose of proving a fact at a criminal trial, they were nontestimonial, and the district court did not violate [the defendant's] constitutional right [to confrontation] by admitting them into evidence."); People v. Marciano, 2014 COA 92M–2, ¶ 40, 411 P.3d 831, 2014 WL 3747307 (bank statements were not testimonial because "[w]hile duplicates of the statements may have been obtained in the course of investigating this case, the original statements were generated to facilitate the administration of the defendant's bank account"); see also Melendez–Diaz, 557 U.S. at 324, 129 S.Ct. 2527 ("Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial."); Crawford, 541 U.S. at 56, 124 S.Ct. 1354 ("Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records....").¹

¶ 14 Melendez–Diaz, relied on by defendant, is distinguishable. The records there—certificates of analysis showing that substances seized by the police had been forensically determined to contain cocaine—were testimonial because they had been created for the sole purpose of providing evidence against the defendant. 557 U.S. at 323–24, 129 S.Ct. 2527. Defendant argues that the records in this case were likewise created "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 310, 129 S.Ct. 2527 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354 ). He points to portions of the exhibit introduced at trial that indicated the documents from Neustar were prepared in response to the People's subpoena. But, although the exhibit introduced at trial was prepared in response to the subpoena, the records themselves were created at or about...