People v. Valdez ( 2017 )

COLORADO COURT OF APPEALS 2017COA41
Court of Appeals No. 14CA1030
Adams County District Court No. 13CR27
Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anton Jose Valdez,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division III
Opinion by JUDGE WEBB
Bernard and Dunn, JJ., concur
Announced April 6, 2017
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted Anton Jose Valdez of first degree murder after
deliberation and several other charges arising from the robbery of a
jewelry store during which one of the two hooded robbers shot and
killed the owner. Valdez did not testify but defended based on
misidentification. On the first degree murder count, the trial court
sentenced him to life imprisonment without the possibility of parole.
On the aggravated robbery count, the court imposed a consecutive
sentence of thirty-two years in the custody of the Department of
Corrections. It imposed concurrent sentences on the other counts.
¶2 Valdez seeks a new trial based on rulings admitting DNA
evidence from the crime scene and surveillance camera videos of
the robbery in progress.
 As to the DNA evidence, he asserts that the match was derived
from a sample unconstitutionally collected when he was
arrested on an unrelated charge.
 As to one of the videos, he asserts that depiction of the owner’s
dying moments was unfairly prejudicial, and as to all of the
videos that the court should have restricted the jury’s
replaying them during deliberations.
1
Alternatively, he challenges the trial court’s conclusion that the
crime of violence statute required consecutive sentencing on the
aggravated robbery count. The Attorney General concedes
preservation of all issues.
¶3 Discerning no evidentiary errors, we affirm the judgment of
conviction. Then addressing a novel question in Colorado, we
further conclude that because affirmance means Valdez was
lawfully sentenced to a life term without parole, his challenge to the
consecutive sentence is moot.
I. The Trial Court Did Not Err in Allowing the Prosecution to
Present Evidence Linking DNA From the Crime Scene to a DNA
Sample Previously Taken from Valdez in Connection with His Arrest
on a Felony Traffic Offense
¶4 In his suppression motion, Valdez argued that taking the DNA
sample during his arrest for aggravated driving under restraint –
habitual offender, § 42-2-206(1)(b)(II), C.R.S. 2016, constituted an
unreasonable search and seizure under both the United States and
Colorado Constitutions. According to Valdez, a constitutional
violation occurred because aggravated driving under restraint “is
not a serious offense” under Maryland v. King, 569 U.S. ___, ___,
133 S. Ct. 1958, 1980 (2013). However, the motion conceded that
2
because Valdez had entered into a plea agreement and pleaded
guilty to only misdemeanors, he was eligible for — but had failed to
pursue — the DNA expungement procedures under section
16-23-105, C.R.S. 2016. This section is part of Katie’s Law,
§§ 16-23-101 to -105, C.R.S. 2016. In response, the prosecutor
primarily asserted that the DNA collection was constitutional
because Valdez had been arrested for a felony, as provided in
Katie’s Law.
¶5 After hearing argument from counsel, the trial court denied
the motion from the bench. The court found that Valdez’s motion
was an improper “collateral attack on evidence obtained in another
case . . . where that evidence was never sought to be suppressed”
and “where [Valdez] had the opportunity to remove that DNA from
the database, since he was not convicted of a felony.” Alternatively,
it concluded that collection of Valdez’s DNA was constitutional
because he “was, in fact, arrested for a serious matter . . . and it
would, in fact, pass muster pursuant to [the] . . . King decision.”
3
A. Collateral Estoppel
¶6 Although Valdez’s opening brief argues that the trial court
erred in denying his motion as an improper “collateral attack,” the
Attorney General does not defend the court’s ruling on this basis.
Still, under the doctrine of constitutional avoidance, we address
constitutional issues only if necessary. See Developmental
Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008) (stating that
judicial restraint requires courts to avoid reaching constitutional
questions in advance of the necessity of deciding them); People v.
Lybarger, 700 P.2d 910, 915 (Colo. 1985) (“Axiomatic to the exercise
of judicial authority is the principle that a court should not decide a
constitutional issue unless and until such issue is actually raised
by a party to the controversy and the necessity for such decision is
clear and inescapable.”). And were we to agree with the trial court
that Valdez was estopped from challenging collection of his DNA, we
would never reach the constitutional question. So, we start with
that aspect of the court’s ruling, but reject it as a misapplication of
the law.
4
¶7 To begin, one may wonder if the doctrine of collateral estoppel
(also called issue preclusion) applies in criminal cases. It does. See
generally People v. Smith, 938 P.2d 111, 113 (Colo. 1997).
¶8 Even so, the scope of this doctrine may be narrower in
criminal cases. Deciding that a defendant is estopped from
relitigating an issue in a second criminal proceeding depends on
whether “the question was ‘distinctly put in issue and directly
determined’ in the [prior] criminal prosecution.” Metros v. U.S. Dist.
Court, 441 F.2d 313, 316 (10th Cir. 1970) (quoting Kauffman v.
Moss, 420 F.2d 1270, 1274 (3d Cir. 1970)). Because in the traffic
case Valdez failed to either move to suppress the DNA sample before
pleading guilty or seek expungement based on his misdemeanor
plea, the constitutional issue raised in this appeal was not
determined. Compare Commonwealth v. Lunden, 35 N.E.3d 412,
416 (Mass. App. Ct. 2015) (“In the [prior] case, the defendant did
not move to suppress the blood evidence match, and therefore
despite the defendant’s conviction the [prior] proceeding did not
result in a final judgment on the merits . . . .”), with Sharp v. State,
835 N.E.2d 1079, 1085 (Ind. Ct. App. 2005) (“[The defendant]
5
litigated the constitutionality of the taking of his DNA that was
placed in the database in the prior case, and he presented that
issue in the prior appeal. Hence, we can only conclude that [he]
had the full and fair opportunity to litigate the issue he raises here,
and the doctrine of collateral estoppel precludes him from
relitigating the issue now.”).
¶9 Thus, because Valdez’s constitutional challenge cannot be
avoided, we turn to it.
B. Constitutionality of the DNA Collection in the Traffic Case
1. Standard of Review and Law
¶ 10 Suppression rulings normally present a mixed question of fact
and law. See People v. Cisneros, 2014 COA 49, ¶ 56. But Valdez’s
contention only raises an issue of law — he challenges the
constitutionality of section 16-23-103, C.R.S. 2016, as applied to
him. And “[w]e review the constitutionality of a statute, both
facially and as applied, de novo.” People v. Lovato, 2014 COA 113,
¶ 12.
¶ 11 When reviewing a statute, we presume that it satisfies
constitutional standards. People v. Baer, 973 P.2d 1225, 1230
6
(Colo. 1999). The party challenging a statute on constitutional
grounds — whether as applied or facial — bears the burden of
establishing the statute’s unconstitutionality beyond a reasonable
doubt. Id.1
¶ 12 In King, 569 U.S. at ___, 133 S. Ct. at 1970, 1980, the
Supreme Court upheld a Maryland DNA collection statute that
required “all arrestees charged with serious crimes” to submit a
buccal swab for DNA testing solely as a police booking procedure.
The Court concluded:
DNA identification of arrestees is a reasonable
search that can be considered part of a routine
booking procedure. When officers make an
arrest supported by probable cause to hold for
a serious offense and they bring the suspect to
the station to be detained in custody, taking
and analyzing a cheek swab of the arrestee’s
DNA is, like fingerprinting and photographing,
a legitimate police booking procedure that is
reasonable under the Fourth Amendment.
Id. at ___, 133 S. Ct. at 1980 (emphasis added).
1In Tabor Foundation v. Regional Trans. Dist., 2016 COA 102, our
supreme court has granted certiorari to consider this standard.
16SC639, 2017 WL 280826 (Colo. Jan. 23, 2017).
7
¶ 13 Like the Maryland statute, section 16-23-103(1)(a) requires
that for “[e]very adult arrested on or after September 30, 2010, for a
felony offense or for the investigation of a felony offense . . . [t]he
arresting law enforcement agency shall collect the biological
substance sample from the arrested person as part of the booking
process.” (Emphasis added.) These samples are tested by the
Colorado Bureau of Investigation (the CBI) and are filed in the state
index system. § 16-23-104(2), C.R.S. 2016.
¶ 14 But unlike the Maryland statute, Katie’s Law does not impose
an express seriousness requirement. The Attorney General seeks to
fill this gap by arguing that every felony is serious.
¶ 15 The Colorado Supreme Court has not spoken to the
constitutionality of Katie’s Law. In People v. Lancaster, 2015 COA
93, ¶ 23, however, the division concluded that a DNA sample taken
in violation of section 16-23-103(1)(a) — because the defendant had
been arrested for only misdemeanor traffic offenses — did not
violate the defendant’s constitutional privacy interests.
¶ 16 Of course, the division acknowledged that “[a] cheek swab to
obtain a DNA sample is a search, and a search without a warrant
8
supported by probable cause is presumptively unreasonable unless
it falls within one of the established exceptions to the warrant
requirement.” Id. at ¶ 14. Then the division turned to one such
exception — that for “special needs” — which “balance[s] the
government’s special need against the individual’s asserted privacy
interests.” Id. at ¶ 15 (quoting People v. Rossman, 140 P.3d 172,
174 (Colo. App. 2006)).
¶ 17 In applying this exception, the division held that “the
government’s interest in the DNA sample was not outweighed by
[the defendant’s] privacy interests.” Id. at ¶ 23. It explained that
after an arrest, “the intrusion into [the arrestee’s] privacy resulting
from the buccal swabs was minimal and akin to booking procedures
like the fingerprinting and photographing of a suspect.” Id. On this
basis, the division concluded that “the trial court did not err in
denying [the defendant’s] motion to suppress the DNA profile that
was allegedly developed as a result of the prior warrantless
collections of DNA evidence from him.” Id. at ¶ 25.
9
¶ 18 Valdez cites no contrary Colorado authority, nor are we aware
of any. We consider Lancaster well reasoned and apply it as
follows.
2. Application
¶ 19 Valdez raises three constitutional arguments. We consider
and reject each in turn.
¶ 20 First, Valdez argues that although he was arrested for
aggravated driving, his DNA was “not taken pursuant to a serious
offense as contemplated in [King].”
¶ 21 Lancaster, where the defendant was “only in custody for
misdemeanor offenses,” id. at ¶ 26, rejected a similar argument. As
the division explained, “[a]lthough in King, 133 S. Ct. at 1980, the
Supreme Court concluded that it was constitutional to collect DNA
from a suspect detained in custody for a ‘serious offense,’ the Court
did not hold that it is unconstitutional to take DNA from arrestees
under all other circumstances.” Id. Instead, “the magnitude of the
state’s interest does not necessarily depend on the seriousness of
the crime of arrest. As [King] observed, ‘people detained for minor
offenses can turn out to be the most devious and dangerous
10
criminals.’” Id. (quoting Haskell v. Harris, 745 F.3d 1269, 1273 (9th
Cir. 2014) (Smith, J., concurring in the judgment), in turn quoting
King, 569 U.S. at ___, 133 S. Ct. at 1971).
¶ 22 Because, under Lancaster, Valdez’s proposed “serious felony”
litmus test for constitutionality falls short, we decline to decide
whether aggravated driving is such an offense or whether all
felonies are serious.
¶ 23 Lancaster also rejected Valdez’s second argument — that
unlike the Maryland statute in King, Katie’s Law “is clearly not
designed to identify defendants in the manner of a booking
procedure.” True enough, the legislative declaration in section
16-23-102(1), C.R.S. 2016, refers to “preventing” and “solving”
crimes. And these purposes are beyond the ambit of merely
establishing an arrestee’s identity.
¶ 24 Even so, the division held that “[t]he statute at issue in King
did not expressly say that identification was its sole governmental
interest.” Lancaster, ¶ 27. It added, “[n]or did the Supreme Court
say that identification is the only legitimate governmental interest
served by collecting DNA samples.” Id. And section 16-23-102(1)(b)
11
recognizes that “[t]he analysis of DNA has been used numerous
times in the exoneration of innocent individuals charged with or
convicted of crimes.”
¶ 25 Valdez’s third argument — that collection of his DNA was
unconstitutional because Katie’s Law “lacks adequate privacy
provisions” — fares no better. Specifically, he asserts that under
Katie’s Law, a person charged with a felony has the burden of
requesting expungement of the DNA sample. In contrast, under the
Maryland statute, DNA samples are destroyed if “criminal action
begun against the individual . . . does not result in a conviction.”
King, 569 U.S. at ___, 133 S. Ct. at 1967.
¶ 26 Valdez relies solely on People v. Buza, 180 Cal. Rptr. 3d 753,
789 (Cal. Ct. App. 2014). There, the court held “[t]he fact that the
[California] DNA Act does not provide for automatic expungement
increases the weight of the arrestee’s privacy interest.” But this
decision has been depublished because review has been granted by
the California Supreme Court. People v. Buza, 342 P.3d 415 (Cal.
2015).
12
¶ 27 Further, in Haskell v. Harris, 745 F.3d at 1274, the
concurrence in the judgment rejected the assertion “that
California’s law is distinguishable from Maryland’s because
California retains and uses DNA samples indefinitely even if a
suspect is never charged or convicted.” Judge Smith explained that
“the King Court did not view Maryland’s expungement procedures
as important to the constitutionality of Maryland’s law.” Id. Nor
did the King Court “suggest that post-collection expungement
procedures would affect the constitutional inquiry.” Id. Instead,
the Court framed the “Fourth Amendment search at issue” as “a
buccal swab,” and explained “the ‘minor intrusion’ that this ‘brief’
procedure represents is not affected at all by the availability of
expungement procedures.” Id. (quoting King, 569 U.S. at ___, 133
S. Ct. at 1980).
¶ 28 But even if expungement procedures are relevant to the
constitutional inquiry, Katie’s Law does not place an onerous
burden on an arrestee. See United States v. Mitchell, 652 F.3d 387,
404 (3d Cir. 2011) (An “additional factor[] that contributed to the
13
reasonableness of the search” was that the DNA collection statute
provided for expungement.).
¶ 29 For example, under section 16-23-104(2), “[i]f [the CBI] does
not receive confirmation of a felony charge within a year after
receiving the sample for testing, [it] shall destroy the biological
sample and any results from the testing of the sample.” (Emphasis
added.) Thus, the burden of ensuring that a DNA sample remains
in the system after an arrest has been made falls on the district
attorney.
¶ 30 Another example is that if charges are filed — but the arrestee
is not convicted of a felony — the expungement process requires
only minimal information from the arrestee along with a
“declaration that, to the best of the person’s knowledge, he or she
qualifies for expungement.” § 16-23-105(2)(e). The burden then
shifts back to the district attorney to notify the CBI “that the person
does not qualify for expungement and [give] the reasons that the
person does not qualify.” § 16-23-105(4). If such notification is not
received within ninety days, the CBI “shall destroy the biological
substance.” Id.
14
¶ 31 And once a request for expungement has been made, Katie’s
Law requires that the CBI “send notification . . . to the person
arrested or charged, either stating that [the CBI] has destroyed the
biological substance sample and expunged the results of the testing
of the sample or stating why [the CBI] has not destroyed the sample
and expunged the test results.” § 16-23-105(5). Thus, the burden
to follow up is not placed on the arrestee.
¶ 32 Finally, even if collection of Valdez’s DNA did not violate the
United States Constitution, did the collection violate the Colorado
constitution? Valdez says that it did. But we agree with Lancaster,
¶ 24, that the “state constitution provides the same, not greater,
protection in this area than the Fourth Amendment.”
¶ 33 In the end, because Katie’s Law, as applied to Valdez, is
constitutional, we conclude that the trial court did not err in
denying his motion to suppress.
II. The Trial Court Did Not Abuse Its Discretion in Admitting a
Surveillance Video that Depicted the Shooting
¶ 34 Video from multiple cameras inside the store captured the
robbery. Defense counsel moved in limine for “an order that the
prosecution not be permitted to play for the jury the overhead
15
camera recording of the offense.” This recording depicted the victim
lying on the floor bleeding from several bullet wounds, being shot
the final time, and giving up his last breath, over a period of less
than one minute. Citing CRE 403, counsel argued that the
prejudicial effect of this recording exceeded any probative value
because it “is extremely graphic and alarming, and will
unnecessarily enflame the passions of the jury”; the victim’s death
from gunshot wounds was undisputed; this video did not identify
which of the robbers had been the shooter; and “[o]ther angles of
video depict the entire event.”
¶ 35 In denying the motion, the trial court explained:
It shows the crime. This is a murder case. It
is not pleasant. I understand that. There is
no way I can sanitize it. So I will deny the
request as it relates to the videotape of the
crime itself. It can be played in its entirety to
the jury.
All of the recordings were played for the jury during trial and, as
discussed in the following section, replayed during deliberations.
A. Standard of Review and Law
¶ 36 As with any evidence, whether to admit a video recording lies
within the sound discretion of the trial court; absent an abuse of
16
discretion, its ruling on whether relevant video recordings were not
unnecessarily gruesome must stand. CRE 403; People v. Villalobos,
159 P.3d 624, 630 (Colo. App. 2006). “[A]n abuse of that discretion
will be found only upon a showing that the ruling was manifestly
arbitrary, unreasonable, or unfair.” People v. Rath, 44 P.3d 1033,
1043 (Colo. 2002).
¶ 37 “Because the balance required by CRE 403 favors admission, a
reviewing court must afford the evidence the maximum probative
value attributable by a reasonable fact finder and the minimum
unfair prejudice to be reasonably expected.” Id. Consistent with
this preference for admission, evidence is not unfairly prejudicial
merely because it damages the defendant’s case. People v. Dist.
Court, 785 P.2d 141, 147 (Colo. 1990). And evidence is unfairly
prejudicial only if it has an “undue tendency to suggest a decision
on an improper basis, commonly but not necessarily an emotional
one, such as sympathy, hatred, contempt, retribution, or horror.”
Id.17
B. Analysis
¶ 38 Valdez argues that the “challenged video added nothing
meaningful to . . . documentation of the event,” but it “surely
shocked [jurors], likely triggering an emotional response and thirst
for retribution for such a grisly killing.” He cites no authority, nor
are we aware of any in Colorado, excluding as unfairly prejudicial a
video recording of the charged crime in progress. Instead, he relies
on cases such as People v. Ellis, 41 Colo. App. 271, 273, 589 P.2d
494, 495 (1978), where the division held that the trial court had
improperly admitted graphic photographs of a victim’s injuries,
which did not “shed enough light on the question of accident to
counteract the passion and prejudice which they must have
generated.” His reliance is misplaced.
¶ 39 The recording from the overhead camera was not an ad hoc
depiction of the consequences of a crime, such as autopsy
photographs of a deceased victim or pictures of injuries to a victim
who survived. Nor was it some sort of recreation. Rather, this
recording showed the crime — as it was happening.
18
¶ 40 So, how could this recording be unfairly prejudicial? We agree
with those courts that have held similar recordings are not. See,
e.g., Ivery v. State, 686 So. 2d 495, 519 (Ala. Crim. App. 1996) (“The
videotape here is without question prejudicial; however, ‘while such
direct evidence of a crime is certainly prejudicial to a defendant’s
case, without more, it is not unfairly so.’”) (citation omitted);
Johnson v. State, No. AP-77,030, 2015 WL 7354609, at *30 (Tex.
Crim. App. Nov. 18, 2015) (unpublished opinion) (“Although the
events captured by the surveillance videotape are disturbing, the
videotape shows no more than how the offense transpired.”); cf.
Bradley v. State, 533 S.E.2d 727, 731 (Ga. 2000) (“The trial court
did not err in admitting a state trooper’s videotape of the victim in
life on the side of the road shortly after she had been shot. The
court properly determined that the videotape . . . accurately
depicted the ongoing crime shortly after the shooting occurred.”).
¶ 41 In sum, we conclude that the trial court did not abuse its
discretion by admitting the surveillance video from the overhead
camera.
19
III. The Trial Court Did Not Abuse Its Discretion in Declining to
Limit the Number of Times the Jurors Could Watch the Surveillance
Videos or Imposing Other Restrictions on the Jury’s Consideration
of the Videos
¶ 42 During deliberations, the jurors indicated that they wanted to
view the surveillance videos. Defense counsel requested that the
jury “not be granted unfettered access” to the videos and should
only be “allow[ed] to view each video once.” Counsel failed to ask
that the jury be admonished not to favor one type of evidence over
another. The court responded:
I will not limit them to one time. I agree they
are not to have unfettered access to them. We
will have my clerk play them for them. The
only people in the room will be the jurors and
my clerk.
The record does not indicate how much time the clerk spent with
the jurors or how often they replayed the videos. Nor did Valdez
ask the trial court to make such a record after the jury returned the
verdict but before it was discharged.
A. Standard of Review and Law
¶ 43 Trial courts have broad discretion to control the use of exhibits
during jury deliberations. DeBella v. People, 233 P.3d 664, 666
(Colo. 2010). When exercising this discretion, “the trial court’s
20
ultimate objective must be to assess whether the exhibit will aid the
jury in its proper consideration of the case, and even if so, whether
a party will nevertheless be unfairly prejudiced by the jury’s use of
it.” Frasco v. People, 165 P.3d 701, 704-05 (Colo. 2007). But the
court must also ensure that “evidence is not so selected, nor used
in such a manner, that there is a likelihood of it being given undue
weight or emphasis by the jury.” Id. at 703 (quoting Settle v. People,
180 Colo. 262, 264, 504 P.2d 680, 680-81 (1972)).
B. Analysis
¶ 44 Relying on DeBella, Valdez contends the court improperly gave
the jurors unfettered access to the videos by not imposing any
restrictions. In DeBella, the supreme court held that the trial court
had abused its discretion by leaving with the jury a TV monitor and
the victim’s videotaped interview, then failing to supervise or restrict
playback. 233 P.3d at 667.
¶ 45 To begin, unlike in DeBella, here the videos were played for the
jurors only after their request. See People v. Smalley, 2015 COA
140, ¶ 65 (“The court did not automatically provide the jury with
access to the recordings, but waited until the jury requested
21
them.”). And the videos were played for the jury by a court
employee. See DeBella, 233 P.3d at 669 (A court can “require that
the video be viewed in open court or under the supervision of a
bailiff.”). Thus, Valdez inaccurately describes the jury’s access as
“unfettered.”
¶ 46 Still, and also unlike in DeBella, the court did not put any
additional restrictions on viewing the videos — such as limiting the
number of times the jury could watch them. Nor did the court
“admonish the jury not to give the exhibit undue weight or
emphasis.” Id.
¶ 47 But are such restrictions even necessary when video evidence
is nontestimonial? See People v. Jefferson, 2014 COA 77M, ¶ 11,
(“[A] trial court must ‘oversee with caution’ the jury’s use of exhibits
of a testimonial character, including video recorded interviews of
witnesses.”) (cert. granted Dec. 22, 2014). The Attorney General
says “no,” arguing that DeBella involved only testimonial evidence
and the surveillance videos were nontestimonial. See People v.
Russom, 107 P.3d 986, 989 (Colo. App. 2004) (a recording is
22
nontestimonial if it depicts “the event itself rather than a narration
thereof”).
¶ 48 The Attorney General is correct that several divisions of this
court — all pre-DeBella — have distinguished between testimonial
and nontestimonial evidence when upholding trial court decisions
that allowed juries unlimited access to nontestimonial evidence.
See Russom, 107 P.3d at 989 (“Jurors may have access during
deliberations to nontestimonial recordings that depict the event
itself rather than a narration thereof.”); People v. Aponte, 867 P.2d
183, 188-89 (Colo. App. 1993) (“The videotape and its transcription
do not constitute statements of witnesses testimonial in character
as a narrative of events. Rather, they are tangible exhibits with
verbal content which are non-testimonial in character because they
depict the actual commission of the crime itself.”); see also People v.
Blecha, 940 P.2d 1070, 1078 (Colo. App. 1996) (finding no grounds
for a mistrial where jury had unsupervised access to a videotape
that was nontestimonial, and was not shocking or inflammatory;
“the videotape was similar in character to still photographs which
jurors are normally permitted to review during deliberation”), aff’d,
23
962 P.2d 931 (Colo. 1998); cf. People v. Gingles, 2014 COA 163,
¶ 18 (allowing “unrestricted jury access during deliberations to a
defendant’s voluntary and otherwise admissible confession”).2
¶ 49 Since DeBella, the supreme court has not addressed whether
the same reasoning applies to nontestimonial evidence.3 But the
significance of this distinction need not be resolved here. Even if
the trial court should have imposed greater restrictions on the
jury’s consideration of this nontestimonial evidence, for two
reasons, the risk of undue emphasis was not so great as to show an
abuse of discretion.
 First, Valdez never disputed the accuracy of what the videos
portrayed. See DeBella, 233 P.3d at 668-69 (“[T]he
2 These cases are consistent with the weight of authority in other
jurisdictions. See Burkhart v. Commonwealth, 125 S.W.3d 848, 850
(Ky. 2003) (“[N]umerous courts have allowed deliberating jurors to
review audio and visual recordings of a non-testimonial character,
often within the confines of the jury room.”) (collecting cases).
3 In Rael v. People, No. 13SC903, 2014 WL 7330995, at *1 (Colo.
Dec. 22, 2014) (unpublished order), the supreme court granted
certiorari on “[w]hether the court of appeals erred in affirming the
trial court’s decision to allow the jury unfettered and unsupervised
access to . . . non-testimonial crime scene videos during
deliberation.”
24
inconsistencies of the tape’s content with [the victim’s] trial
testimony were central to the resolution of the case . . . .”).
 Second, the prosecution presented corroborating evidence
identifying the shooter through still photographs developed
from the videos, to which the jury had unrestricted access
without objection from Valdez. See Jefferson, ¶ 18 (“The
heightened danger that undue emphasis will be placed on
detailed videotaped statements of victim-witnesses is
exacerbated in cases like the present one, where minimal
evidence corroborates the victim’s statements and
testimony.”).
¶ 50 For these reasons, we conclude that the trial court did not
abuse its discretion in declining to limit the number of times the
jury could view the videos or in refusing to impose other restrictions
on the jury’s consideration of them.
IV. Because No Error Occurred, Valdez Is Not Entitled to Relief for
Cumulative Error
¶ 51 “To warrant reversal of a conviction based on cumulative error,
‘numerous errors [must] be committed, not merely alleged.’” People
v. Thomas, 2014 COA 64, ¶ 61 (alteration in original) (quoting
25
People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007)). Because
we have not discerned any errors, this contention does not warrant
relief.
V. Valdez’s Challenge to His Consecutive Sentence for Aggravated
Robbery Is Moot
¶ 52 The Attorney General contends that error, if any, in running
the aggravated robbery sentence consecutively to Valdez’s life
without the possibility of parole sentence is moot because a ruling
could not have any practical effect on the length of his
incarceration. Having affirmed Valdez’s convictions on all charges,
including first degree murder, we conclude that the consecutive
sentence issue is moot.
A. Standard of Review and Law
¶ 53 “We review de novo the legal question of whether a case is
moot.” People in Interest of C.G., 2015 COA 106, ¶ 11 (cert. granted
May 23, 2016).
¶ 54 As a “threshold jurisdictional matter,” we must determine
whether the current appeal is moot “before proceeding to the merits
of the case.” USAA v. Parker, 200 P.3d 350, 356 (Colo. 2009).
“Mootness instructs courts not to grant relief that would have no
26
practical effect upon an actual and existing controversy.” Bd. of
Dirs., Metro Wastewater Reclamation Dist. v. Nat’l Union Fire Ins. Co.
of Pittsburgh, 105 P.3d 653, 656 (Colo. 2005).4
B. Application
¶ 55 Whether a life without the possibility of parole sentence moots
an error in imposing a lesser sentence consecutively rather than
concurrently has not been addressed in any Colorado appellate
opinion.
¶ 56 Other jurisdictions support the Attorney General’s position on
mootness. See, e.g., Minshew v. State, 975 So. 2d 395, 398 (Ala.
Crim. App. 2007) (“To remand this case now to determine whether
Minshew’s probationary term for his theft conviction in case no. CC-
86-727 was illegally run consecutively to his other probationary
terms would not change the fact that Minshew is serving a sentence
of life imprisonment without the possibility of parole.”); State v.
4Limited exceptions to mootness exist, such as a factual situation
capable of repetition yet avoiding review or where recurring
constitutional violation has been alleged. See, e.g., Comcast of
Cal./Colo., L.L.C. v. Express Concrete, Inc., 196 P.3d 269, 275 (Colo.
App. 2007). Because Valdez fails to raise any exceptions, we
decline to address them.
27
Macy, 886 P.2d 1010, 1012 (Or. 1994) (“Currently, defendant is
serving a term of imprisonment based on the matrix for concurrent
life sentences. Therefore, as things now stand, defendant will serve
a term of imprisonment under the same matrix that he would if this
court were to hold that the trial court erred in imposing consecutive
sentences.”); State v. Mathis, No. M2011-01096-CCA-R3CD, 2013
WL 4774130, at *14 (Tenn. Crim. App. Sept. 5, 2013) (unpublished
opinion) (“Having upheld Defendant Evans’s convictions for
especially aggravated kidnapping, any issues regarding the length of
his sentences for the aggravated burglary and aggravated robbery
convictions are essentially moot as they are to be served
concurrently with two sentences of life without the possibility of
parole.”); cf. Berger v. Norris, No. 5:07CV00298JTR, 2009 WL
4067260, at *3 (E.D. Ark. Nov. 19, 2009) (unpublished opinion)
(“While Petitioner’s reduction in classification does affect his future
accrual of good time credit, his consecutive life sentences make that
entirely ‘theoretical injury’ a moot point.”).
¶ 57 Valdez cites no directly contrary authority. Instead, he points
out that two divisions of this court have addressed consecutive
28
sentencing errors in cases where a controlling sentence of life
without the possibility of parole has been imposed. But these cases
are distinguishable because here, rather than conceding error, the
Attorney General raises mootness. See People v. Phillips, 2012 COA
176, ¶ 172 (“The People concede that when the evidence will
support no reasonable inference other than that multiple
convictions were based on identical evidence, the trial court is
required to impose concurrent sentences for those convictions.”);
People v. Holloway, 973 P.2d 721, 726 (Colo. App. 1998) (“The
People concede[d]” the error.). As well, neither division addressed
mootness. And in any event, “we are not obligated to follow other
divisions of this court.” Sandstrom v. Solen, 2016 COA 29, ¶ 29.
¶ 58 Alternatively, Valdez argues that the issue is not moot because
“circumstances might arise under which [his] life sentence is
reduced.” True enough, our supreme court did just this for certain
juvenile offenders in People v. Tate, 2015 CO 42, ¶ 51. But Tate did
not involve mootness. Valdez does not cite authority, nor have we
found any in Colorado, holding that speculation about an as yet
29
unheralded change in the law — that would have retrospective
application — should be considered as an exception to mootness.
¶ 59 At least one other state has rejected this argument. In
Quiroga v. Commissioner of Correction, 87 A.3d 1171 (Conn. App.
Ct. 2014), the defendant argued that his deportation did not moot
his criminal appeal because Congress might change the criteria for
readmission. Disagreeing, the court explained, “[w]e conclude that
the possibility that Congress may, at some point in the future,
amend federal immigration law so as to permit the petitioner’s
reentry into the country despite his narcotics convictions is pure
conjecture.” Id. at 1176; see also Allende v. Shultz, 845 F.2d 1111,
1121 (1st Cir. 1988) (then circuit judge Breyer, J., concurring)
(“But, I do not see how this court can find (constitutionally
speaking) a genuine ‘controversy’ premised on the fact that present
law may change.”).
¶ 60 In Colorado “[c]ourts should refuse to consider uncertain or
contingent future matters that suppose speculative injury that may
never occur.” Bd. of Dirs., Metro Wastewater Reclamation Dist., 105
P.3d at 656; see also Air Pollution Control Comm’n of Colo. Dep’t of
30
Health v. Colo.-Ute Elec. Ass’n, 672 P.2d 993, 997 (Colo. 1983) (“We
consider it unnecessary and inappropriate to address a question
having only speculative future utility.”). And recognizing such an
exception to mootness would be problematic because, despite stare
decisis, the law can always change. See Creacy v. Indus. Comm’n,
148 Colo. 429, 433, 366 P.2d 384, 386 (1961) (“The rule of stare
decisis is not a doctrine of mortmain; it does not exclude room for
growth in the law and the courts are not without power to depart
from a prior ruling, or to overrule it, where sound reasons exist and
where the general interests will suffer less by such departure than
from a strict adherence.”). Yet, “[e]xceptions should not swallow the
rule.” A.S. v. People, 2013 CO 63, ¶ 27.
¶ 61 Of course, Valdez could obtain certiorari review. But if our
supreme court set aside his first degree murder conviction — and
along with it the life without the possibility of parole sentence — yet
affirmed the remaining convictions, the aggravated robbery
sentence would control. In this event, Valdez would have to serve
that sentence, irrespective of whether it had originally been imposed
consecutively or concurrently. The same would be true if Valdez
31
succeeded in collaterally attacking his first degree murder
conviction.
¶ 62 Given all this, we conclude that error, if any, in imposing the
aggravated robbery sentence consecutively to the life without parole
sentence is moot.
VI. Conclusion
¶ 63 The judgment and sentence are affirmed.
JUDGE BERNARD and JUDGE DUNN concur.
32