People v. Tran
| Decision Date | 25 June 2020 |
| Docket Number | Court of Appeals No. 16CA2136 |
| Citation | 469 P.3d 568 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Roy TRAN, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE FURMAN
¶ 1 A jury found defendant, Daniel Roy Tran, guilty of second degree burglary and possession of burglary tools. The trial court sentenced Tran to twenty-four years in the custody of the Department of Corrections (DOC).
¶ 2 On appeal, Tran mounts two challenges to his convictions and one challenge to his sentence.
¶ 3 Regarding his convictions, Tran contends that (1) the trial court abused its discretion and violated his constitutional right to confront the witnesses against him by admitting into evidence a document that contained inadmissible testimonial hearsay and (2) the prosecutor committed reversible misconduct during rebuttal closing argument.
¶ 4 Tran also contends that the trial court erred by denying his request for an extended proportionality review of his sentence.
¶ 5 Because we conclude that (1) the trial court did not abuse its discretion or violate Tran's Confrontation Clause rights by admitting the document and (2) the prosecutor did not commit reversible misconduct, we affirm Tran's convictions.
¶ 6 But we remand for the trial court to conduct a new abbreviated proportionality review of Tran's sentence considering the supreme court's recent decision in Wells-Yates v. People , 2019 CO 90M, 454 P.3d 191.
¶ 7 Employees at a Colorado Springs Walmart caught Tran shoplifting from the store. He tried to take eleven Blu-ray discs and one digital camera. Together, these items were worth $300.
¶ 8 When the employees apprehended Tran, they looked him up in a database where Walmart records the names of shoplifters. They discovered that Tran had been caught shoplifting from Walmart three times before. They also discovered that, after the most recent shoplifting incident, on June 28, 2014, Walmart had issued Tran the following "trespass notice."
¶ 9 The trespass notice informed Tran that he was no longer "allowed on property owned by [Walmart] ... or in any area subject to [Walmart's] ... control." And it warned him that if he tried to enter Walmart property, Walmart "may contact law enforcement and request [he] be charged with criminal trespass."
¶ 10 Tran printed and signed his name under language in the trespass notice that said, in relevant part, "I have read and understand this Notice or, in the alternative, have had it read to me and understand and acknowledge that as of 28 day of June, 2014, I am prohibited from entering [Walmart] property."
¶ 11 The Walmart employees contacted the police, and Tran was arrested.
¶ 12 The trespass notice created a big problem for Tran because it showed that he "knowingly ... enter[ed] unlawfully in" Walmart's property. § 18-4-203(1), C.R.S. 2019. This meant that the prosecution could charge him with second degree burglary, a class 4 felony, instead of just misdemeanor theft. See id. ; § 18-4-401(2)(d), C.R.S. 2019.
¶ 13 The prosecution introduced the trespass notice, among other evidence, at trial.
¶ 14 After trial, the jury found Tran guilty of second degree burglary and possession of burglary tools.
¶ 15 Later, the trial court found that Tran had six previous felony convictions and adjudicated him a habitual criminal. The habitual criminal statute required the trial court to sentence Tran to an aggregate of twenty-four years in the custody of the DOC. See § 18-1.3-401(1)(a)(V)(A), C.R.S. 2019; § 18-1.3-801(2)(a), C.R.S. 2019.
¶ 16 Tran contends the trial court erred, for two reasons, by admitting the trespass notice. First, he contends that it contained inadmissible hearsay. Second, he contends that it was testimonial evidence and that admitting it violated his constitutional right to confront the witnesses against him. See U.S. Const. amends. VI, XIV.
¶ 17 We perceive no reversible error.
¶ 18 Hearsay is a statement other than one made by the declarant while at the trial or hearing, offered in evidence to prove the truth of the matter asserted. CRE 801(c). A statement "is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him to be communicative." CRE 801(a).
¶ 19 Generally, hearsay statements are inadmissible. CRE 802. But some statements are excluded from the rule against hearsay, and are admissible, regardless of whether they are introduced for the truth of the matter asserted. See generally CRE 801(d). And a hearsay statement is admissible if it falls under one of the enumerated exceptions to the hearsay rule. See generally CRE 803, 804.
¶ 20 We review a trial court's evidentiary rulings for an abuse of discretion. People v. Phillips , 2012 COA 176, ¶ 63, 315 P.3d 136.
¶ 21 Tran construes the entire trespass notice as one statement. The People counter that the trespass notice contains two distinct statements.
¶ 22 We agree with the People that the trespass notice contains two statements: (1) Walmart's statement that Tran is no longer allowed on Walmart property and (2) Tran's statement that he read and understood the notification. See CRE 801(a).
¶ 23 We will analyze the admissibility of each statement in turn.
¶ 25 We first conclude that Walmart's statement was hearsay. The statement asserted that Tran was "no longer allowed on" Walmart property. And, to prove that Tran committed second degree burglary, the prosecution had to prove that Tran "unlawfully" entered Walmart. § 18-4-203(1). Thus, the prosecution introduced Walmart's statement to prove the truth of the matter it asserted. See CRE 801(c).
¶ 28 To address Tran's contention, we first need to step back and examine the rationale behind the business records exception and why documents prepared in anticipation of litigation do not fall within this exception.
¶ 29 The rationale behind the business records exception is that businesses have a strong incentive to keep accurate and reliable records of their regular affairs. See Schmutz v. Bolles , 800 P.2d 1307, 1312 (Colo. 1990) ; see also Jordan v. Binns , 712 F.3d 1123, 1135 (7th Cir. 2013) (). And, "the regularity of creating such records leads to habits of accuracy." Jordan , 712 F.3d at 1135. Thus, business records are presumptively reliable. Id. ; see also People v. Flores-Lozano , 2016 COA 149, ¶ 20, 410 P.3d 684.
¶ 30 But documents prepared in anticipation of litigation do not have the same guarantees of reliability. Flores-Lozano , ¶ 20 ; see also Melendez-Diaz v. Massachusetts , 557 U.S. 305, 321, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ; Palmer v. Hoffman , 318 U.S. 109, 113-14, 63 S.Ct. 477, 87 L.Ed. 645 (1943) ; People v. Stribel , 199 Colo. 377, 380, 609 P.2d 113, 115 (1980). Unlike a business keeping records of its normal activities, a business preparing records for litigation has a strong incentive to portray the facts in a way that will help it avoid liability. Jordan , 712 F.3d at 1135. And businesses do not routinely prepare these documents. See Palmer , 318 U.S. at 113-14, 63 S.Ct. 477 ; Timberlake Constr. Co. v. U.S. Fid. & Guar. Co. , 71 F.3d 335, 342 (10th Cir. 1995) (). Thus, documents prepared in anticipation of litigation are presumptively unreliable and are not admissible under CRE 803(6). Flores-Lozano , ¶ 20.
¶ 31 With these principles in mind, we conclude that Walmart's statement in the trespass notice was not prepared in anticipation of litigation. We reach this conclusion for a few reasons.
¶ 32 First, Walmart's statement warned Tran that he was not allowed on Walmart property and that if he entered Walmart property again, he could face criminal prosecution. This language suggests that the statement's purpose was to deter criminal litigation, not to prepare for it.
¶ 33 Second, at the time Walmart issued the trespass notice to Tran, there was nothing to litigate. If Tran had...
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