People v. Ortega , 2016 Colo. App. LEXIS 1489 ( 2016 )

COLORADO COURT OF APPEALS 2016COA148
Court of Appeals No. 13CA0547
Jefferson County District Court No. 11CR3036
Honorable Christopher J. Munch, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Raymond Lee Ortega,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE ROMÁN
Lichtenstein and Sternberg*, JJ., concur
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶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
1
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
2
¶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 (2004). The
3
Supreme Court later held that, under the Crawford formulation,
nontestimonial hearsay does not implicate the Federal
Confrontation Clause. See Michigan v. Bryant, 562 U.S. 344, 354-
59, 378 (2011); People v. Phillips, 2012 COA 176, ¶ 75.
¶ 10 “Testimony” is “[a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact.” Crawford, 541
U.S. at 51 (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 (2009)
(alteration in original) (quoting Crawford, 541 U.S. at 51-52). More
concisely, where “a statement is not procured with a primary
4
purpose of creating an out-of-court substitute for trial testimony,”
the Confrontation Clause is not implicated. Bryant, 562 U.S. at
358-59.
¶ 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
5
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
6
testimonial. See id.; United States v. Green, 396 F. App’x 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 non-
testimonial, 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 (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 (“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 (“Most of the hearsay
exceptions covered statements that by their nature were not
testimonial — for example, business records . . . .”).1
1 Defendant also argues that the trial court erred by shifting the
7
¶ 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. 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 (quoting Crawford, 541
U.S. at 52). 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 the time of defendant’s
phone activity, for Neustar’s business purposes. Compare Yeley-
Davis, 632 F.3d at 679, and People v. Warrick, 284 P.3d 139, 144
(Colo. App. 2011) (booking reports and mittimus admitted in trial
burden to the defense to establish that the phone records were
testimonial. The trial court did not rule, however, that defendant
failed to establish that the records were testimonial; the trial court
ruled that the phone records were not testimonial.
8
for possession of weapon by a previous offender were not
testimonial because they were created for routine administrative
purposes and not to establish a material fact at any future criminal
proceeding), with Melendez-Diaz, 557 U.S. at 322-24, and Hinojos-
Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007) (lab report that
identified the substance found in Hinojos-Mendoza’s vehicle to be
cocaine was testimonial — it was prepared at the direction of the
police, the sole purpose of the report was to analyze the substance
in anticipation of criminal prosecution, and the report was
introduced at trial to establish the elements of the charged offense).
¶ 15 Nor are we persuaded that the mere fact that the records were
produced in a different format than they are kept in by the phone
company transforms the records into testimonial statements. As
the Tenth Circuit explained in United States v. Keck, “[i]n the
context of electronically-stored data, the business record is the
datum itself, not the format in which it is printed out for trial or
other purposes.” 643 F.3d 789, 797 (10th Cir. 2011). The fact that
the record custodian distilled the pertinent business records into
the exhibit ultimately offered at trial does not alter the
characterization of the underlying nontestimonial phone data. See
9
id. at 796 (concluding that the admission into evidence of a
spreadsheet logging wire transactions was constitutionally
permissible even if the custodian of records cut and pasted
information to create the exhibits; “since the underlying wire-
transfer data are not testimonial, the records custodian’s actions in
preparing the exhibits do not constitute a Confrontation Clause
violation”). This is not a case in which the business records were
cherry-picked to support the prosecution’s case. Cf. People v.
Flores-Lozano, 2016 COA 149, ¶¶ 11-12 (spreadsheet there “was not
a simple regurgitation of electronically stored information” because
“the loss prevention director applied his professional judgment to
sort, include, and exclude electronically stored information for the
precise purpose of creating a customized spreadsheet to determine
if the defendant had stolen from the victim and, if so, in what
amount”). The exhibit here contained all of the phone records for
the particular phone number, from three days before the robbery to
five weeks after the robbery.
¶ 16 Defendant further contends, however, that even if the phone
records themselves are not testimonial, the declaration by the
custodian of records is testimonial. Defendant reasons that the
10
declaration was certainly 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, 557 U.S.
at 310 (quoting Crawford, 541 U.S. at 52), as the declaration states
that it is in response to a subpoena.
¶ 17 We are again persuaded by the reasoning in Yeley-Davis,
which followed several other circuits and concluded that a
certification authenticating a business record is not testimonial
simply by virtue of the certification itself being made in anticipation
of litigation. 632 F.3d at 680. The court relied on United States v.
Ellis, 460 F.3d 920, 927 (7th Cir. 2006), in which the Seventh
Circuit explained that a written certification authenticating hospital
records as kept in the ordinary course of the hospital’s business
was nontestimonial because it was “too far removed from the
‘principal evil at which the Confrontation Clause was directed’ to be
considered testimonial.” Id. (quoting Crawford, 541 U.S. at 50).
¶ 18 Here, as in Yeley-Davis, where the “purpose of the
certifications . . . was merely to authenticate the cell phone
records — and not to establish or prove some fact at trial,” 632 F.3d
at 680, we agree with the Tenth Circuit that the certification is not
11
testimonial. See also United States v. Brinson, 772 F.3d 1314, 1323
(10th Cir. 2014) (certificate authenticating debit card records which
did not “contain any ‘analysis’ that would constitute out-of-court
testimony” was simply a nontestimonial statement of authenticity);
United States v. Adefehinti, 510 F.3d 319, 327-28 (D.C. Cir. 2007)
(in trial related to scheme to secure mortgages at vastly inflated
values, admission of loan applications and other documents relied
on by banks in lending money pursuant to written certification of
custodian of records did not violate the defendants’ confrontation
rights); State v. Brooks, 56 A.3d 1245, 1252-55 (N.H. 2012)
(admission of various business records, including telephone
records, authenticated by written certifications from the records’
custodians did not violate the defendant’s confrontation rights
because the certificates themselves had minimal evidentiary value,
serving only as the foundation for the admission of substantive
evidence); State v. Doss, 754 N.W.2d 150, 161-65 (Wis. 2008)
(affidavits authenticating bank records were not testimonial; noting
that a number of federal appellate decisions addressed the issue
and concluded that similar affidavits and certifications are
12
nontestimonial). Because the certification is not testimonial, the
Federal Confrontation Clause is not implicated.
C. Colorado Confrontation Clause
¶ 19 Defendant also argued in the trial court, and reasserts on
appeal, that even if we conclude the phone records are
nontestimonial, his right to confrontation under the Colorado
Constitution was violated because the phone records were admitted
without a showing that the custodian of records was unavailable.
We disagree with defendant that his right to confrontation under
the Colorado Constitution was violated.
¶ 20 The Colorado Confrontation Clause provides that a criminal
defendant “shall have the right . . . to meet the witnesses against
him face to face.” Colo. Const. art. II, § 16. “The purpose of this
provision is ‘to prevent conviction by [e]x parte affidavits, to sift the
conscience of the witness, and to test his recollection to see if his
story is worthy of belief.’” Phillips, ¶ 79 (alteration in original)
(quoting People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300
(1976)).
¶ 21 The People urge us to dispose of the analysis in People v.
Dement, 661 P.2d 675 (Colo. 1983), abrogated in part on other
13
grounds by People v. Fry, 92 P.3d 970, 976 (Colo. 2004), and
conform our analysis of state Confrontation Clause challenges to
the approach that the United States Supreme Court has laid out for
challenges under the Federal Confrontation Clause. In Phillips, a
division of this court explored the proper analysis of Confrontation
Clause challenges based on the state constitution. ¶ 81. The
division noted that although our supreme court adopted the United
States Supreme Court’s inquiry under the Federal Confrontation
Clause as to testimonial hearsay, it retained the test in Dement as
to nontestimonial hearsay. Id. (citing Compan v. People, 121 P.3d
876, 885 (Colo. 2005)). The Phillips division then noted that our
supreme court has not “directly considered whether, in light of our
supreme court’s congruent precedent, the recent clarification of
Crawford should affect our state Confrontation Clause analysis.”
Id. at ¶ 82 (citation omitted). The division then followed Compan
and considered a state Confrontation Clause issue involving
nontestimonial hearsay under the Dement test. See id. We, too,
apply Dement to evaluate whether admission of nontestimonial
hearsay violates the Colorado Confrontation Clause.
14
¶ 22 In doing so, we disagree with defendant’s assertion that
Dement necessarily requires a showing of unavailability to admit
evidence in the absence of the declarant. Rather, in Dement, our
supreme court explained that the unavailability requirement is
subject to an exception when “the utility of trial confrontation [is
very] remote.” Dement, 661 P.2d at 681 (alteration in original)
(quoting Ohio v. Roberts, 448 U.S. 56, 65 n.7 (1980), abrogated by
Crawford v. Washington, 541 U.S. 36 (2004)).
¶ 23 Another division of this court applied the Dement
Confrontation Clause analysis and concluded that a price tag could
be used as prima facie evidence of an item’s value in a theft trial
without implicating the defendant’s confrontation right because the
utility of cross-examination would be very remote. People v.
Schmidt, 928 P.2d 805, 807-08 (Colo. App. 1996). The Schmidt
division explained that, because customers do not ordinarily
bargain over the price of retail goods, “if [the] defendant had asked
any employee in the store, including the manager, what the price of
a particular item was, he or she would have answered by checking
the price tag on the item.” Id. at 807. The division acknowledged
that there might be instances in which a price tag would not reflect
15
the true value of an item, but the division nonetheless concluded
that the defendant’s right to confrontation was not violated. Id. at
808.
¶ 24 We conclude that cross-examining the custodian of the phone
records would be of limited utility in this case and that a showing of
unavailability was not required. Like a store employee reporting the
value on a price tag, the custodian of records here reported
information already recorded and stored in Neustar’s records. See
also People v. Gilmore, 97 P.3d 123, 131 (Colo. App. 2003)
(Admission of a work order from a cable company, as well as a lay-
away agreement for furniture and two related cash receipts, each
containing the defendant’s name and the address at which cocaine
and the defendant were found, did not violate the defendant’s
confrontation right in a possession of controlled substance trial
because “the documents do not assert that defendant had engaged
in any conduct, criminal or otherwise, and there is no indication
that self-interest or animus against defendant motivated the
authors to make false statements about his address or that the
documents may have been otherwise fraudulent,” and thus “[t]he
test of cross-examination regarding these documents would be of
16
marginal utility.”). Thus, there is minimal practical benefit in
applying “the crucible of cross-examination” against the custodian
of records regarding the nontestimonial phone records. Crawford,
541 U.S. at 61. The mere possibility that a mistake may have been
made in the records, just as a mistake may be made on a price tag,
does not implicate defendant’s confrontation right. Schmidt, 928
P.2d at 808.
III. Closing Argument
¶ 25 Defendant next contends that during closing argument the
prosecutor misstated the evidence regarding how DNA was or could
have been deposited on the jeans.
A. Legal Standards
¶ 26 “[A] prosecutor’s closing argument should be based on the
evidence in the record and all reasonable inferences to be drawn
therefrom,” and “‘[t]he prosecutor should not intentionally misstate
the evidence or mislead the jury as to the inferences it may draw.’”
Martinez v. People, 244 P.3d 135, 140-41 (Colo. 2010) (quoting ABA
Standards for Criminal Justice, Prosecution Function, and Defense
Function § 3-5.8(a) (3d ed. 1993)).
17
¶ 27 “[C]losing argument allows advocates to point to different
pieces of evidence and explain their significance within the case.”
Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). In so
doing, “a prosecutor has wide latitude in the language and
presentation style used.” Id. We evaluate claims of improper
argument “in the context of the argument as a whole and in light of
the evidence before the jury.” People v. Samson, 2012 COA 167,
¶ 30. Further, “because arguments delivered in the heat of trial are
not always perfectly scripted, reviewing courts accord prosecutors
the benefit of the doubt when their remarks are ambiguous or
simply inartful.” Id.
¶ 28 “Whether a prosecutor’s statements constitute misconduct is
generally a matter left to the trial court’s discretion.” Domingo-
Gomez, 125 P.3d at 1049. Thus, absent a showing of an abuse of
discretion, we will not disturb the trial court’s ruling allowing such
statements. People v. Strock, 252 P.3d 1148, 1152 (Colo. App.
2010).
¶ 29 We turn to the context of the argument in light of the expert’s
testimony.
B. Expert’s Testimony
18
¶ 30 A laboratory agent with the Colorado Bureau of Investigation
forensic crime laboratory testified for the prosecution as an expert
in criminalistics and the subfields of serology and DNA analysis and
identification. As pertinent here, the expert testified about the
results of her analysis of the jeans for “contact or touch DNA.”
Explaining “contact or touch DNA,” the expert testified that “[w]hat
that is is an indication maybe of who has been wearing a garment
or who has been touching a garment.”
¶ 31 The expert testified that (1) a swab from the waist area of the
jeans and (2) a swab from the inside of the front pocket of the jeans
both resulted in a DNA profile that was mixture, with defendant
being the source of the major component of the DNA profile. When
a DNA profile developed from a sample is a mixture, more than one
individual’s DNA profile is present. In the mixture situation, there
is sometimes a “main contributor” — an individual whose DNA is
present in the sample at a much higher concentration than that of
other potential contributors — and one or more minor contributors.
¶ 32 The prosecutor explored the mixture concept as it related to
touch DNA by posing a hypothetical. He asked the expert whether
it would be possible for him to pick up DNA from touching various
19
items around the room and then touching his collar, resulting in a
DNA profile developed from the collar of his shirt then including
both a major and minor component. The expert agreed this was
possible because “DNA is pretty much everywhere,” and she
explained that when someone touches an item, he or she may
deposit a small amount of DNA and remove some DNA of people
who previously touched that same item. But, she said, “If you’re
talking about your mixture on your shirt, I would expect there -- I
would expect there to be a major contributor, I would expect that
major contributor to be you.”
¶ 33 The expert made clear during her testimony that, although it
might provide certain clues, DNA analysis could not conclusively
establish how DNA arrived on a piece of clothing.
C. Closing Argument in This Case
¶ 34 Defendant asserts that the prosecutor, contrary to the expert’s
testimony, told the jury it was impossible that someone other than
defendant had contact with the jeans. We disagree with this
characterization of the prosecutor’s argument.
¶ 35 The court instructed the jury on defendant’s theory of defense
in which he contended that “the presence of a mixture of DNA on
20
the . . . jeans indicates that someone other than [defendant] also
came in contact with those areas of the jeans tested by the Colorado
Bureau of Investigations.” The prosecutor responded specifically to
that theory of defense instruction in closing, arguing:
[That i]nstruction goes on to say that they
further contend the presence of a mixture of
DNA on the . . . jeans indicates that someone
other than Raymond Ortega also came in
contact with those areas of the jeans tested by
CBI.
Simply not the case. It’s essentially not the
case at all. That says that what the mixture of
DNA in the pockets and mixture of DNA on the
waistband that what those jeans [shows] is
that someone else came in contact with those
jeans. They’d like you to believe that, but
that’s not what the evidence means, and that’s
not what the evidence shows.
What the evidence shows is that the
Defendant’s DNA is on the waist of those
jeans, and his DNA is in the pocket of those
jeans. . . . Both the waist of the jeans and the
pockets of the jeans have a mixture, what they
call a mixture of DNA, that is to such a slight
degree at that time cannot be interpreted to
say [whose] DNA is this, [whose] is that.
. . . The mixture that’s in the pocket, and the
mixture that’s on the waist band means that
somebody else’s DNA came in contact with
those jeans.
But it absolutely does not mean that somebody
else came in contact with the jeans. Sounds
21
like a small description, right? But think
about it like this: [the expert] talked about the
fact if you’re touching an item, you’re picking
up DNA from that item. . . .
The jeans that are there have touch DNA that
was found as far as a mixture of DNA, that is
absolutely consistent with picking up DNA
from other items and putting it in your
pockets.
. . . I can’t stand here and tell you with
certainty, I can’t tell you where the DNA came
from, the mixture.
What I can tell you is it’s of a such a slight
degree it’s absolutely consistent with picking
up DNA from any other items and putting
them into the jeans for a long period of time.
What cannot be said is that the presence of the
mixture indicates that someone other than
Raymond Ortega also came into contact with
those jeans.
(Emphasis added.)
¶ 36 Defense counsel objected on the basis that the prosecutor
misstated the evidence, and the court overruled the objection,
noting that this was argument.
¶ 37 The prosecutor then added, “They can’t say it. They can’t say
that the DNA came from somebody else, the postman came into
contact with the jeans.”
22
¶ 38 Thus, as we read the closing argument, the prosecutor
responded to the theory of defense — that the DNA evidence
indicated that someone else also came into contact with the jeans
possibly worn in the robbery — by arguing, consistent with the
expert’s testimony, that the evidence simply indicated that someone
else’s DNA came into contact with the jeans. The People’s further
argument that the result was “absolutely consistent with picking up
DNA from any other items and putting them into the jeans” was
reasonably based on the expert’s testimony about touch DNA
hypotheticals.
¶ 39 Although the prosecutor might have more artfully worded his
argument, we read his statements as permissibly arguing that
(1) the DNA evidence did not establish that someone other than
defendant had contact with the jeans and (2) the more likely
scenario was that defendant had picked up a small amount of
someone else’s DNA and deposited it on the jeans. See Sampson,
¶ 30. And importantly, the prosecutor reiterated in closing that he
could not tell the jury with certainty, based on the DNA evidence,
where the DNA on the jeans came from.
23
¶ 40 Accordingly, we discern no abuse of discretion in the trial
court’s determination that the argument was permissible.
IV. Cumulative Error
¶ 41 Because we discern no error in the trial court’s rulings
admitting the cell phone records into evidence and determining the
prosecutor’s argument was permissible, there was no cumulative
error. See People v. Marin, 686 P.2d 1351, 1357 (Colo. App. 1983).
V. Admission of Documentary Evidence in Habitual Trial
¶ 42 Finally, defendant contends that he was denied his right to
confrontation under the Colorado Confrontation Clause because the
trial court erroneously concluded that sentencing and prison
records could be admitted into evidence without a showing of
unavailability of “the judges or their clerks who may have created,
signed, or processed the various mitts and the other various court
documents.”
¶ 43 In short, defendant again asserts that the Colorado
Confrontation Clause demands a showing that a declarant is
unavailable before nontestimonial hearsay can be admitted without
the declarant’s testimony. As we explained in Part II.C, under
Dement, the prosecution need not produce a declarant nor prove
24
him or her unavailable where the utility of trial confrontation is
remote. As with the phone records, we conclude that the
sentencing and prison records fall into this category. Indeed,
defendant argues that unavailability must be shown but offers no
argument as to what helpful information might be revealed by
cross-examination of the judges or clerks who recorded and
reported defendant’s previous convictions.
VI. Conclusion
¶ 44 The judgment is affirmed.
JUDGE LICHTENSTEIN and JUDGE STERNBERG concur.
25