v. Dominguez-Castor , 2020 COA 1 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 2, 2020
2020COA1
No. 15CA0648, People v. Dominguez-Castor — Constitutional
Law — Fourth Amendment — Searches and Seizures —
Exclusionary Rule — Independent Source Exception
A division of the court of appeals considers whether the
independent source doctrine applies to serial search warrants for
the same evidence. The division concludes that, even where
evidence was suppressed because it was discovered during
execution of a flawed warrant, the same evidence may be admitted
if discovered under a second warrant that was genuinely
independent of the prior illegality. The record here supports the
trial court’s findings that (1) the second warrant was not based on
facts learned in the unlawful search and (2) the officer’s decision to
seek the second warrant was not motivated by information obtained
during the unlawful search. Therefore, the division affirms the
court’s denial of the defendant’s suppression motion. The division
also rejects his other challenges to the judgment and sentence.
COLORADO COURT OF APPEALS 2020COA1
Court of Appeals No. 15CA0648
Jefferson County District Court No. 14CR559
Honorable Jeffrey R. Pilkington, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Dominguez-Castor,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division IV
Opinion by JUDGE NAVARRO
Hawthorne and Furman, JJ., concur
Announced January 2, 2020
Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 The exclusionary rule generally bars admission of evidence
obtained in violation of the Fourth Amendment. Applying that rule,
the trial court here suppressed evidence derived from a defective
search warrant. The police then obtained a second warrant to
search the same property. The court declined to suppress the
product of the second warrant, which was the same evidence found
under the first warrant. This case thus presents the novel question
whether the evidence procured under the second warrant was
admissible under the independent source exception to the
exclusionary rule. We conclude that it was.
¶2 Because we also reject the other challenges to his convictions
and sentence raised by the defendant, James Dominguez-Castor,
we affirm the judgment and sentence.
I. Factual and Procedural History
¶3 On March 1, 2014, Robert Phippen was found dead inside his
home. He was seventy-nine years old. Someone had stabbed him
approximately sixty times, strangled him, and ransacked his trailer.
The police discovered an empty box of checks, bloody latex gloves in
the toilet bowl, two knives in the kitchen, and a black glove under
his body.
1
¶4 Investigators suspected Dominguez-Castor and Stephvon
Atencio. In police interviews following his arrest, Atencio
acknowledged having a sexual relationship with the victim and
living with him shortly before his death. Atencio implicated
Dominguez-Castor in the crimes. The prosecution ultimately
charged both men in the victim’s death. Atencio later agreed to
testify against Dominguez-Castor and pleaded guilty to second
degree murder.
¶5 At Dominguez-Castor’s trial, Atencio testified that Dominguez-
Castor texted him the night of February 24, 2014, asking for
marijuana. They decided to smoke it at the victim’s trailer. The
victim allowed them in, and he joined them while they smoked and
drank. After the victim retired for the evening, Atencio and
Dominguez-Castor wanted more marijuana but had no money.
Atencio proposed stealing the money from the victim.
¶6 Atencio attempted to steal the money from the victim’s pocket
as he slept, but Atencio abandoned that plan when the victim
moved in his sleep. Dominguez-Castor said he could get the wallet;
then he put on gloves, grabbed a knife, and went into the bedroom.
Atencio heard a struggle lasting several minutes. When he returned
2
to the bedroom, he saw the bloodied victim lying on the floor.
Dominguez-Castor flushed the gloves down the toilet before stealing
the victim’s money and checks.
¶7 The prosecution presented evidence showing that
(1) Dominguez-Castor confessed the murder to a jailhouse
informant and to a girl on Facebook; and (2) his DNA was on the
latex gloves found in the toilet. Dominguez-Castor denied any
involvement, denied being at the trailer, and denied making any
confessions.
¶8 The jury convicted Dominguez-Castor of first degree murder
(both after deliberation and felony murder), aggravated robbery, and
related crimes. The trial court adjudicated him a habitual criminal
and sentenced him accordingly.
II. Serial Search Warrants
¶9 We first address, and reject, Dominguez-Castor’s contention
that the trial court erred by denying his motion to suppress a
Facebook message as the fruit of an unlawful search.
A. Additional Background
¶ 10 Police seized two cell phones discovered during a search
incident to Dominguez-Castor’s arrest. Following witness
3
interviews — including with Atencio and Dominguez-Castor — the
lead detective (Detective Karen Turnbull) directed another detective
to draft an affidavit for a warrant to search the phones. Based on
that affidavit, a magistrate issued the warrant, and law enforcement
officers attempted to download the phones’ contents. The
information on one phone could not be downloaded, but the other
phone revealed an incriminating message in which Dominguez-
Castor appeared to confess to murder.1
¶ 11 The incriminating message was sent via a social media
application called Facebook Messenger. Upon discovering the
message, Detective Turnbull prepared affidavits for a search
warrant to Facebook and for orders for production of records to
three cell phone providers. Per department policy, she copied and
pasted information from the first affidavit when applying for the
new warrant and orders. The warrant and orders were issued, but
records from Facebook and the cell phone providers did not reveal
any new incriminating information.
1 The message reads, “I just killed a nigga and Im running.”
4
¶ 12 Dominguez-Castor moved to suppress the Facebook message
recovered pursuant to the search warrant for the phones as well as
evidence seized under the subsequent search warrant and orders.
The trial court granted his motion. The court found that the
detective who prepared the original affidavit included false
information that a witness had identified Dominguez-Castor in a
photo lineup. In fact, the witness had identified Atencio in one
lineup but had failed to identify Dominguez-Castor in another.
¶ 13 The court found that the detective did not intentionally make
false statements but made them with reckless disregard for the
truth. After redacting the false information in all the affidavits and
any references to the Facebook message, the court decided that the
remaining information did not establish probable cause to search.
The court thus suppressed the evidence seized pursuant to the
search warrants and orders for production.
¶ 14 After the suppression ruling, Detective Turnbull drafted a new
affidavit and applied for a second warrant to search the phones.
5
The new affidavit included much more information than the first,2
but omitted any reference to the Facebook message or any other
information learned during the prior searches.
¶ 15 A magistrate issued the new warrant, and law enforcement
officers re-downloaded information from the phone — including the
Facebook message. Dominguez-Castor again moved to suppress
the evidence. At the second suppression hearing, Detective
Turnbull testified that she followed the “same pattern” of the
investigation as before. In other words, her first step was to obtain
a warrant to download the phones. She testified that nothing found
in the initial search of the phones was used to obtain the second
warrant for the phones. The detective did not, however, seek new
warrants to Facebook or the cell phone providers. She explained
that she had been unaware that evidence seized from those entities
had been suppressed. She also noted that “in hindsight” she knew
those searches would reveal nothing valuable.
2 Detective Turnbull later explained that, in the time between the
first affidavit and the second, her department had received new
training about search warrants for cell phones in light of the
decision in Riley v. California, 573 U.S. 373 (2014).
6
¶ 16 The trial court denied the suppression motion on the ground
that the second warrant to search the phones satisfied the
independent source doctrine. The court found that the new
affidavit in support of the second warrant referenced no information
obtained from the illegal search, Detective Turnbull’s motive to
secure a warrant was independent of the prior unlawful search, and
the affidavit established probable cause to search.
B. Standard of Review
¶ 17 A trial court’s suppression order presents a mixed question of
fact and law. People v. Hyde, 2017 CO 24, ¶ 9; People v. Cruse, 58
P.3d 1114, 1120 (Colo. App. 2002). We review the court’s findings
of fact deferentially and accept them if they are supported by
competent record evidence. People v. Chavez-Barragan, 2016 CO
66, ¶ 34. Because the ultimate conclusions of constitutional law
are ours to draw, however, we review them de novo. Id.
C. Analysis
¶ 18 Dominguez-Castor contends that the trial court erroneously
applied the independent source doctrine to allow the prosecution to
“circumvent” the first suppression order. He says that, when a trial
court suppresses evidence because of a defective warrant, the
7
exclusionary rule forbids law enforcement officers from seeking a
new warrant to search for the same evidence. He further argues
that, “[e]ven if the independent source doctrine permitted repeat
warrants,” the doctrine should not apply here because the
prosecution did not establish that the second warrant was
independent of the first. We disagree with both arguments.
1. May the Independent Source Doctrine Apply
to Serial Search Warrants?
¶ 19 The exclusionary rule is a judicially created remedy designed
to deter unlawful police conduct by suppressing evidence obtained
in violation of the Fourth Amendment. People v. Schoondermark,
759 P.2d 715, 718 (Colo. 1988). It applies both to illegally obtained
evidence and to derivative evidence — often called “fruit of the
poisonous tree.” Id. (quoting Nardone v. United States, 308 U.S.
338, 340-41 (1939)).
¶ 20 One exception to the exclusionary rule is the independent
source doctrine, under which “unconstitutionally obtained evidence
may be admitted if the prosecution can establish that it was also
discovered by means independent of the illegality.” People v. Arapu,
2012 CO 42, ¶ 32 (quoting People v. Morley, 4 P.3d 1078, 180 (Colo.
8
2000)). Among other circumstances, the doctrine may apply where
evidence was initially discovered during an unlawful warrantless
entry or search but later seized (or re-seized) when the police
executed a valid search warrant. See, e.g., Murray v. United States,
487 U.S. 533, 540-42 (1988); Arapu, ¶ 32; Schoondermark, 759
P.2d at 716; People v. George, 2017 COA 75, ¶¶ 6-9, 47-55.
¶ 21 To show that the warrant was genuinely an independent
source of the evidence, the prosecution must prove that (1) the
decision to seek the warrant was not prompted by what was
observed during the initial unlawful search, and (2) no information
obtained during the initial search was relied upon by the magistrate
in issuing the warrant. George, ¶ 47.
¶ 22 This case raises the question whether the independent source
doctrine can apply to evidence seized under a valid warrant issued
after the evidence was first discovered during execution of an
invalid warrant. No published Colorado case has answered this
question. We conclude that the independent source doctrine may
apply to such facts if the prosecution shows that the second
warrant was truly independent of information obtained from the
initial search.
9
¶ 23 Driving our decision is the reason for the independent source
doctrine. The United States Supreme Court has explained that the
public interest “in deterring unlawful police conduct and the public
interest in having juries receive all probative evidence of a crime are
properly balanced by putting the police in the same, not a worse,
position that they would have been in if no police error or misconduct
had occurred.” Murray, 487 U.S. at 537 (quoting Nix v. Williams,
467 U.S. 431, 443 (1984)) (emphasis added). If the challenged
evidence has an independent source, excluding such evidence
would put the police in a worse position than they would have been
in absent any error or violation. Id.
¶ 24 This rationale applies with equal force to a second warrant
that is independent of evidence discovered under an initial defective
warrant. Where the second warrant would have been sought and
issued even absent the first warrant, “[i]nvoking the exclusionary
rule would put the police (and society) not in the same position they
would have occupied if no violation occurred, but in a worse one.”
Id. at 541.
¶ 25 Contrary to Dominguez-Castor’s view, permitting subsequent
warrant applications would not eviscerate the exclusionary rule’s
10
deterrence function by encouraging reckless applications for a first
warrant. If the initial warrant was defective, the prosecution must
satisfy “the much more onerous burden of convincing a trial court”
that no information gained from the illegal search affected either the
law enforcement officers’ decision to seek a second warrant or the
magistrate’s decision to grant it. George, ¶ 64 (quoting Murray, 487
U.S. at 540). Reasonable officers would wish to avoid this burden
and its heightened risk that evidence crucial to their investigation
will be suppressed. See id.
¶ 26 Moreover, we decline to hold that, although the independent
source doctrine may apply to evidence initially discovered during an
unlawful warrantless search and later seized under a valid warrant,
the doctrine may not apply to evidence initially discovered under a
defective warrant and later seized under a valid warrant. Such a
rule could create unwelcome incentives for law enforcement officers
by discouraging them from seeking a warrant before an initial
search. Cf. People v. Marko, 2015 COA 139, ¶ 145 (“To comply with
the reasonableness requirement, the United States and Colorado
Constitutions generally require a police officer to obtain a warrant
before conducting a search.”), aff’d, 2018 CO 97.
11
¶ 27 Consistent with our view, courts in other jurisdictions have
recognized that the independent source doctrine may apply to
evidence seized under a second warrant even though the evidence
was initially discovered under a defective warrant. See United
States v. Terry, 41 F. Supp. 2d 859, 863-66 (C.D. Ill. 1999);
Commonwealth v. Henderson, 47 A.3d 797, 800-05 (Pa. 2012);3
State v. Dasen, 155 P.3d 1282, 1285-87 (Mont. 2007); State v.
Betancourth, 413 P.3d 566, 572-73 (Wash. 2018). We have not
found any contrary authority.
¶ 28 Further, we disagree with Dominguez-Castor that applying the
independent source doctrine to the second warrant would allow the
police to “circumvent” the first suppression order. As the trial court
explained, “the People may seek multiple warrants for the same
evidence,” and they can “redraft and resubmit affidavits and search
warrants where the Court [initially] refuses to issue the warrant.”
Hence, it is neither improper nor unusual to resubmit a warrant
3 When considering the independent source doctrine, Pennsylvania
courts apply the test from Murray v. United States, 487 U.S. 533
(1988), as well as an additional “independent police team
requirement.” Commonwealth v. Henderson, 47 A.2d 797, 798-99,
805 (Pa. 2012). We cite Henderson only for its application of
Murray to serial search warrants.
12
application with an improved affidavit after a court has ruled that
the first affidavit was insufficient to show probable cause. This
practice does not thwart the court’s first probable cause ruling; it
accepts and appropriately responds to that ruling.
¶ 29 Finally, we are not convinced that the analysis must differ
where the first warrant was defective due to an officer’s recklessly
including false information in the first affidavit. We see no reason
why the independent source doctrine should not apply so long as
the prosecution proves that the second warrant was genuinely
independent of the evidence found under the first. See Murray, 487
U.S. at 542 (holding that the independent source doctrine should
apply “[s]o long as a later, lawful seizure is genuinely independent
of an earlier, tainted one”). To conclude otherwise would put the
police not in the same position they would have occupied if no
violation had occurred, but in a worse one. Id. at 541.
¶ 30 Dominguez-Castor cites cases requiring suppression of
evidence if the affidavit underlying the warrant does not show
probable cause after false statements have been excised. See, e.g.,
Franks v. Delaware, 438 U.S. 154, 156 (1978). In that situation, it
does not matter whether additional facts supporting probable cause
13
could have been alleged if they were not actually alleged in the
affidavit. See State v. Thompson, 358 S.E.2d 815, 817 (W. Va.
1987). Consistent with this authority, the trial court here
suppressed the results of the first warrant after excising the false
statement from the first affidavit. But Dominguez-Castor cites no
authority holding that the first suppression ruling precludes the
police from submitting a second warrant application supported by a
second affidavit without false statements.
¶ 31 We therefore hold that the independent source doctrine may
apply to a search warrant sought after a court suppresses evidence
seized under a prior warrant.
2. Application of the Independent Source Doctrine
¶ 32 We now consider whether the second warrant in this case was
in fact independent of the prior unlawful search.
¶ 33 Dominguez-Castor does not challenge the trial court’s finding
that the second warrant was supported by probable cause. And he
concedes that the information in the second warrant application did
not refer to evidence obtained from the unlawful search. Still, he
maintains that the unlawful search prompted the second search.
14
¶ 34 Whether the police would have pursued a second search even
absent what they discovered during an earlier unlawful search is a
question of fact for the trial court. Murray, 487 U.S. at 543; People
v. Haack, 2019 CO 52, ¶ 17. We will not disturb the court’s finding
if it has record support. Chavez-Barragan, ¶ 34.
¶ 35 The trial court found that “Detective Turnbull was not
motivated by anything in the original illegal search to obtain the
second warrant.” Ample evidence supports the court’s finding.
¶ 36 Detective Turnbull testified that she wanted to search the
phones prior to the original search. The trial court found her
testimony credible. Indeed, it is corroborated by the fact that the
detective actually secured a search warrant for the phones, albeit a
flawed one, before the first search. As the court determined, that
the detective would have pursued a warrant even absent the
information gained by the unlawful search was shown by the fact
that she initially sought a warrant without such information. See
Morley, 4 P.3d at 1081 (discerning an independent motive where
officers sought a warrant before unlawful discovery of evidence);
State v. Smith, 54 A.3d 772, 790 (N.J. 2012) (“That [the police]
would have sought such a warrant as part of their normal
15
investigation is indicated by the fact that they did, in fact, seek
such a warrant, even though the application itself was flawed.”).
This sequence of events rebuts an “inference that the warrant was
sought and granted based upon facts gathered during the illegal
searches.” Morley, 4 P.3d at 1081.
¶ 37 Also, the record reveals that, independent of the evidence
found in the first search, the police knew facts providing probable
cause to search (and asserted those facts in the second affidavit).
See Arapu, ¶ 32 (concluding that, where the redacted affidavit
contained facts — independent of an officer’s illegal observation —
that established probable cause, the officer would have sought a
warrant regardless of the illegal observation). Dominguez-Castor
told the police he barely knew Atencio, whereas Atencio claimed he
and Dominguez-Castor texted often. Determining which story was
true — and therefore establishing the relationship between the two
suspects — would reasonably prompt the police to search their
phones’ activity. In fact, Dominguez-Castor invited officers to “run”
his phone to corroborate his story about his whereabouts on the
relevant night.
16
¶ 38 Additionally, if the men texted as often as alleged, the police
had reason to suspect from other circumstances that they may have
discussed the robbery over the phone. They had a history of
stealing from the victim. In fact, the victim once obtained a
restraining order against Dominguez-Castor for stealing his checks
and credit cards. Some witnesses told the police that they
suspected that Dominguez-Castor and Atencio had been stealing
from the victim near the time of his death. And, after the victim
was killed, Dominguez-Castor attempted to cash checks stolen from
the victim’s trailer.4 These facts gave the police probable cause to
believe that the cell phones contained evidence of criminal activity.
See People v. Omwanda, 2014 COA 128, ¶ 24.
¶ 39 Yet, Dominguez-Castor contends that the record does not
support the trial court’s finding that the first search did not prompt
the second warrant application. He points to Detective Turnbull’s
response to the court’s question whether her decision to obtain the
second warrant “was based on her desire to determine what was
included within the cell phone.” She answered, “Technically, I knew
4 Officers who were not involved in the first warrant application
investigated the stolen checks.
17
what was included because I can’t unknow what was included, but
I still wanted to have evidence that was on the phone part of the
offense.” The fact that she already knew what was on the phone,
however, did not preclude a finding that her desire to search the
phone was not prompted by her knowledge of the phone’s contents.
If she would have sought the warrant even without such knowledge,
the independent source doctrine could apply.
¶ 40 In Murray for instance, law enforcement officers, due to an
illegal entry, knew about the evidence located in the place they
wanted to search before they sought a warrant. See 487 U.S. at
535. Yet, the Court recognized the possibility that their decision to
seek a warrant was not prompted by what they had seen during the
illegal entry:
Knowledge that the marijuana was in the
warehouse was assuredly acquired at the time
of the unlawful entry. But it was also acquired
at the time of entry pursuant to the warrant,
and if that later acquisition was not the result
of the earlier entry there is no reason why the
independent source doctrine should not apply.
Id. at 541. Therefore, many subsequent cases recognize that the
independent source doctrine may apply even where the police
already know about the evidence they seek via a warrant. See, e.g.,
18
Arapu, ¶¶ 3, 32; Schoondermark, 759 P.2d at 717, 719; George,
¶¶ 6-9, 65; Dasen, 155 P.3d at 1285-87.
¶ 41 For similar reasons, the fact that the same officers were
involved in both warrants does not mean the independent source
doctrine cannot apply. Colorado and federal cases applying the
doctrine have not required an independence of law enforcement
personnel. See, e.g., Schoondermark, 759 P.2d at 715 (officers
involved in unlawful search sought a warrant); see also Murray, 487
U.S. at 543-44 (same).
¶ 42 Next, Dominguez-Castor argues that, because the decision to
pursue a second warrant was motivated by the prior suppression
ruling, it cannot be independent of the prior unlawful search. But,
“[w]hile the suppression order prompted the investigator to seek a
warrant, the objective of avoiding the consequences of that order
does not equate to an improper motive arising from the fruits of the
unlawful search.” George, ¶ 53. This is true because a court’s
determination that a search was unlawful is distinct from the
information obtained during that search. The independent source
doctrine requires independence from only the latter. See United
States v. Hanhardt, 155 F. Supp. 2d 840, 852 (N.D. Ill. 2001)
19
(concluding that responding to a suppression ruling “is a valid
reason to seek a warrant, and is not based on anything learned
from the [unlawful] search”); Dasen, 155 P.3d at 1286 (Although
“the invalidity of the first search necessitated a second warrant, the
State nevertheless possessed sufficient independent information to
‘purge the taint’ of the first search.”).
¶ 43 Finally, Dominguez-Castor contends that Detective Turnbull’s
decision not to renew warrant applications to the cell phone
providers and Facebook shows that she was influenced by the
unlawful searches. He says that, because she knew nothing
valuable would be obtained from these entities, she chose not to
seek permission to search their records again. But a law
enforcement officer’s decision not to conduct a search does not raise
Fourth Amendment concerns, regardless of its motive. The relevant
question was whether the detective’s decision to seek the second
warrant to search the phones was prompted by illegally obtained
evidence. The trial court answered “no.” For the many reasons we
have discussed, the record supports the court’s ruling.
¶ 44 Accordingly, we affirm the trial court’s order denying
Dominguez-Castor’s suppression motion.
20
III. Authentication of Facebook Evidence
¶ 45 Dominguez-Castor’s challenge to the Facebook messages does
not end with the suppression issue. He acknowledges that the
Facebook messages (including the apparent confession) were sent
though an application on a phone found in his possession upon his
arrest. But he argues “the record shows persons other than
Dominguez-Castro had access to the . . . phone, thus creating
ambiguity about authorship of the incriminating messages.” So,
Dominguez-Castor says, the prosecution failed to authenticate the
Facebook evidence and the evidence was inadmissible hearsay. We
conclude, however, that the trial court did not abuse its discretion
by ruling otherwise.
A. Additional Background and the Trial Court’s Ruling
¶ 46 The Facebook messages were sent to a teenage girl (G.E.) who
testified at trial. She recalled receiving the messages and
recognized the profile as belonging to Dominguez-Castor. Although
she had never met him in person, she had extensive conversations
with him through Facebook and text messages.
¶ 47 The prosecution presented an analyst to testify about the
phone’s security measures. The phone could be accessed only after
21
entering a four-digit passcode, but the applications on the phone —
including Facebook Messenger — could be accessed without
entering another password. In other words, even though the
Facebook Messenger account was password-protected, the
application on the phone employed an auto-login feature once a
user had accessed the phone.
¶ 48 The analyst noted that there was some evidence that
Dominguez-Castor and Atencio had shared the phone in the past.
The degree to which they shared the phone was unclear.
¶ 49 In addition to the foregoing testimony, the trial court pointed
to the following circumstances:
• The cell phone belonged to Dominguez-Castor, and he
had it when he was arrested.
• The Facebook account was registered in Dominguez-
Castor’s name using his email address.
• The messages were sent through Facebook Messenger,
an application on the phone.
• Although there were some calls made a few days before
the murder to persons related to Atencio, there was no
22
evidence that Atencio used the phone between the dates
of the murder and Dominguez-Castor’s arrest.
• There was no evidence that Atencio knew the four-digit
code to access the phone.
• The web history on the phone included a search for
banks that cash third-party checks, which was
consistent with Dominguez-Castor’s behavior following
the murder.
• The Facebook messages refer to Dominguez-Castor’s plan
to leave the state, and there was no trial evidence he told
Atencio of his travel plans before the messages were sent.
• Some text messages on the phone contain a signature
(“Killshit”), and G.E. said that nickname referred to
Dominguez-Castor.
¶ 50 Based on the above, the court found that the prosecution had
sufficiently authenticated the Facebook messages. The court also
ruled that the content of the messages was not hearsay under CRE
801(d)(2) because it included Dominguez-Castor’s statements, as
well as G.E.’s statements necessary for context.
23
B. Analysis
¶ 51 We review evidentiary rulings for an abuse of discretion.
Campbell v. People, 2019 CO 66, ¶ 21. A trial court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair. Id.
¶ 52 The admissibility of the statements in the Facebook messages
is governed by the rules of relevancy, authentication, and hearsay.
People v. Huehn, 53 P.3d 733, 736 (Colo. App. 2006). Dominguez-
Castor challenges only the latter two requirements.
¶ 53 Authentication is a condition precedent to admissibility of
evidence. CRE 901. The proponent bears the burden to
authenticate evidence, and that burden is satisfied by evidence
sufficient to support a finding that the evidence in question is what
its proponent claims. CRE 901(a). This burden “presents a low
bar; ‘only a prima facie showing is required.’” People v. N.T.B., 2019
COA 150, ¶ 16 (quoting People v. Glover, 2015 COA 16, ¶ 13).
¶ 54 Rule 901 does not specify the exact nature or quantity of
evidence required. Id. at ¶ 17. Rule 901 is a flexible standard, and
the evidence necessary to authenticate a particular piece of
evidence will always depend on context. Id. at ¶ 33.
24
¶ 55 When the prosecution seeks to admit a computer printout of
social media communications of the defendant, the prosecution
must make two showings for authentication: (1) the records were
those of the social media platform and (2) the communications
recorded therein were authored by the defendant. Glover, ¶ 23
(addressing Facebook).
¶ 56 Authorship presents an unusual challenge for authenticating
social media communications due to the “ease with which someone
can assume the identity of another on Facebook.” People in Interest
of A.C.E-D., 2018 COA 157, ¶ 46. Thus, to demonstrate authorship
in this context, “additional corroborating evidence of authorship is
required beyond confirmation that the social networking account is
registered to the party purporting to create those messages.”
Glover, ¶ 30.
¶ 57 Dominguez-Castor does not dispute that the messages here
were communicated through Facebook. Therefore, we address only
whether he authored the messages. See id. at ¶ 23.
¶ 58 The evidence tended to show that the sending Facebook
account belonged to Dominguez-Castor. It was registered in his
name and was created using an email associated with him. The
25
Facebook Messenger application on his phone automatically logged
on to this profile. Conversations between Dominguez-Castor and
G.E. often began over text and would continue on Facebook (or vice
versa), which indicated that he used the Facebook profile. The
record therefore supported a finding that Dominguez-Castor created
and used the sending account.
¶ 59 As for additional corroborating evidence of authorship, the
Facebook messages referenced Dominguez-Castor’s post-murder
travel plans, and no evidence at trial showed that he had told
anyone about those plans. And recall that Dominguez-Castor does
not dispute that the incriminating message was sent via the phone
found in his possession when he was arrested.5 Circumstantial
evidence supported a finding that only he had access to that phone
when the message was sent. To access the phone, a user must
enter a four-digit passcode, which no one other than Dominguez-
Castor knew. There was no evidence that Atencio used the phone
after the murder, and he expressly denied doing so. Messages on
5 The prosecution presented an activity log of the phone’s internet
history. Facebook Messenger requires access to the internet, and
the log shows the phone logging onto public wifi mere minutes
before the “confession” message was sent.
26
another texting application on the phone included a nickname that
referred to Dominguez-Castor. The phone’s internet search history
included searches for cashing third-party checks, which was
consistent with his later behavior.
¶ 60 In sum, the record includes evidence that the sending account
belonged to Dominguez-Castor, messages referred to travel plans
that only he knew, the “confession” message originated from a
particular phone he owned, and only he had access to the phone
when the message was sent. On this record, the trial court did not
abuse its discretion by deciding that the prosecution made the
prima facie showing necessary to authenticate the messages. Any
remaining questions of authorship went to the weight of the
evidence rather than its admissibility. N.T.B., ¶ 16; A.C.E-D., ¶ 50;
People v. Bernard, 2013 COA 79, ¶ 12.
¶ 61 Lastly, because the record supports a finding that Dominguez-
Castor authored the messages from the relevant Facebook account,
we reject his challenge to the trial court’s ruling that the evidence
was admissible under CRE 801(d)(2)(A) as admissions by the
opposing party. See Glover, ¶¶ 40-41. G.E.’s statements were
27
admissible because they were not hearsay but were admitted to give
context to Dominguez-Castor’s statements. See id. at ¶ 42.
IV. Impeachment of Atencio
¶ 62 Dominguez-Castor argues the trial court violated his
constitutional rights to present evidence and to confront the
prosecution’s evidence by excluding evidence he offered to impeach
Atencio’s credibility. We do not discern constitutional error.
A. Atencio’s Guilty Plea and Cooperation Agreement
1. Additional Procedural History
¶ 63 Atencio originally faced charges similar to those against
Dominguez-Castor, including first degree murder and aggravated
robbery. A week before he testified in this case, he pleaded guilty to
second degree murder and conspiracy to commit aggravated
robbery. At Dominguez-Castor’s trial, the prosecutor thoroughly
examined Atencio regarding his guilty plea. Atencio explained that
he potentially faced life in prison for his original charges. Under the
plea agreement, however, the prosecutor would seek no more than
forty-eight years.
¶ 64 As part of this negotiation, but before his guilty plea, Atencio
entered into a cooperation agreement under which he was required
28
to testify at Dominguez-Castor’s trial. If Atencio withheld
information or otherwise did not cooperate with the prosecution, the
prosecutor could withdraw from plea negotiations.
¶ 65 The cooperation agreement also included a “Statement of
Understanding,” in which Atencio acknowledged that, at the time he
agreed to testify, no plea deals had yet been made. It further
provided that his testimony would be truthful. Defense counsel
objected to admitting this document, on hearsay grounds, and the
trial court sustained the objection.
¶ 66 Attached to the documents was a twenty-four-page summary
of Atencio’s statements implicating Dominguez-Castor, which was
consistent with Atencio’s testimony. Still, after cross-examination,
defense counsel sought to introduce this summary to impeach
Atencio. Counsel argued that Atencio “was tied to this version of
the events because it’s written in his cooperation agreement.” The
prosecutor objected on hearsay grounds, noting that the first part of
that same document had already been excluded based on the
defense’s objection. The court sustained the objection, ruling that
the summary was inadmissible hearsay, that it referenced
29
inadmissible evidence, and that it should be excluded under CRE
403 because it posed an undue risk of confusing the jury.
2. Analysis
¶ 67 We review a possible Confrontation Clause violation de novo.
Bernal v. People, 44 P.3d 184, 198 (Colo. 2002).
¶ 68 “The Sixth Amendment right to confrontation and the Fifth
Amendment right to due process of law require only that the
accused be permitted to introduce all relevant and admissible
evidence.” People v. Harris, 43 P.3d 221, 227 (Colo. 2002); see also
People v. Salazar, 2012 CO 20, ¶ 17 (same). So, the exclusion of
irrelevant or otherwise inadmissible evidence does not deprive the
defendant of a constitutional right. See Harris, 43 P.3d at 227; see
also People v. Elmarr, 2015 CO 53, ¶ 27 (“[T]he right to present a
defense is generally subject to, and constrained by, familiar and
well-established limits on the admissibility of evidence.”).
¶ 69 We reject Dominguez-Castor’s constitutional claim for two
reasons. First, he does not challenge the trial court’s ruling that
the document he wished to admit was inadmissible hearsay. So, he
has not demonstrated that the evidence was admissible.
30
¶ 70 Second, he has not demonstrated that any evidentiary error
rose to the level of constitutional error. A confrontation violation
may exist where a defendant “was prohibited from engaging in
otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness.” Kinney v.
People, 187 P.3d 548, 559 (Colo. 2008) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 680 (1986)). Defendants in previous cases
have successfully stated a constitutional violation only where “the
trial court’s ruling, under the circumstances of each case, effectively
barred the defendant from meaningfully testing evidence central to
establishing his guilt.” Krutsinger v. People, 219 P.3d 1054, 1062
(Colo. 2009). In Van Arsdall, for instance, the Court discerned a
confrontation violation “only because the trial court prohibited ‘all
inquiry’ into the possibility of prosecution bias by a witness.”
Krutsinger, 219 P.3d at 1062 (quoting Van Arsdall, 475 U.S. at 679-
80).
¶ 71 Dominguez-Castor, however, was not prohibited from
demonstrating that Atencio’s testimony might be influenced by his
motive to preserve his plea deal. Atencio admitted that he would
avoid life in prison in exchange for testifying against Dominguez-
31
Castor. The prosecutor even elicited testimony from Atencio that
his plea deal hinged on his cooperation with the prosecution.
Atencio’s potential bias and motivation for testifying were made
clear to the jury.
¶ 72 Given the other evidence admitted, Dominguez-Castor has not
persuasively shown that a “reasonable jury might have received a
significantly different impression of [Atencio’s] credibility” if the jury
had heard the excluded evidence — especially considering that this
evidence matched Atencio’s testimony. Krutsinger, 219 P.3d at
1061 (quoting Van Arsdall, 475 U.S. at 679-80). And considering
the extensive examination regarding the plea deal, the pretrial
statements countered no “reasonable, but false, inferences” that
Atencio was an otherwise credible witness. Cf. Merritt v. People, 842
P.2d 162, 168 (Colo. 1992) (witnesses with pending charges
appeared to confess under oath). We therefore find no
constitutional violation.
B. The Ledger
¶ 73 Dominguez-Castor next contends that the trial court
committed constitutional error by excluding a purported ledger
listing payments the victim made to Atencio. He argues that the
32
ledger was admissible under the business records exception to
hearsay. See CRE 803(6). We need not decide whether error
occurred because, even if so, it did not rise to the level of
constitutional error.
¶ 74 Dominguez-Castor contends that the ledger evidenced the
financial relationship between Atencio and the victim, and thus
supported the defense theory that Atencio had a motive to murder
the victim. But that financial relationship was thoroughly
examined at trial even without the ledger. Atencio testified that he
would grant the victim sexual favors in return for money. He also
detailed the maintenance work he did for the victim and the
payment he received in return. It was also well established that
Atencio often lived with the victim. Defense counsel pointed to
these facts in closing.
¶ 75 Because the ledger was cumulative of other evidence,
excluding it did not keep facts crucial to the defense from the jury
or deprive Dominguez-Castro of any meaningful opportunity to
33
present a complete defense. See People v. Conyac, 2014 COA 8M,
¶ 93. There was no constitutional error.6
V. Detective Turnbull’s Opinion Testimony
¶ 76 We likewise reject Dominguez-Castor’s claim that the trial
court reversibly erred when it permitted the lead investigator to
state her opinion that the motive for the murder was robbery.
¶ 77 The defense theorized that Atencio murdered the victim to end
the allegedly unwanted sexual contact between the two. Over the
prosecutor’s objection, the trial court permitted defense counsel to
ask the detective whether a hypothetical person would feel angry
about an unwanted sexual contact. The detective agreed that it was
possible for a person to feel that way.
¶ 78 On redirect, the prosecutor asked, “In your assessment of the
information in this case, is the sexual contact a motive for this
murder?” Defense counsel objected. The court overruled the
objection on the ground that defense counsel had “opened the door
6 For similar reasons, we conclude that any ordinary evidentiary
error was harmless. See Hagos v. People, 2012 CO 63, ¶ 12
(nonconstitutional error is harmless unless it substantially
influenced the verdict or affected the fairness of the trial
proceedings).
34
in [cross]-examination as to motive in all areas.” The detective
answered that “the motive in this case was robbery and not
unwanted sexual contact.”
¶ 79 Dominguez-Castor contends that the court erroneously
permitted the detective to present lay witness testimony regarding
motive. The People counter that the court properly determined that
defense counsel opened the door to that matter. We need not
determine who is correct because the alleged error was harmless.
See Hagos v. People, 2012 CO 63, ¶ 12 (nonconstitutional error is
harmless unless it substantially influenced the verdict or affected
the fairness of the trial proceedings).
¶ 80 The challenged statement was an isolated one in a lengthy
trial. See People v. Munsey, 232 P.3d 113, 124 (Colo. App. 2009)
(unlikely that isolated impropriety substantially influenced the
verdict). The prosecutor did not refer to the detective’s statement in
closing. Cf. Wend v. People, 235 P.3d 1089, 1099 (Colo. 2010)
(repeating improper statement in closing compounded its
prejudicial effect). Instead, the prosecutor attempted to rebut
Dominguez-Castor’s theory with facts that tended to show that
Atencio had no motive to kill the victim. Specifically, the prosecutor
35
drew attention to the stability and income that the victim provided
Atencio.
¶ 81 In addition, the jury was able to form its own opinion of
Atencio’s feelings about his sexual contacts with the victim. On
cross-examination, Atencio testified in detail that he “disliked” —
but did not “hate” — the sexual contact between him and the
victim. From that testimony, the jury had the opportunity to gauge
Atencio’s credibility on that point. See People v. Gallegos, 644 P.2d
920, 927 (Colo. 1982) (deciding that jury’s ability to directly assess
witness at trial alleviated prejudicial effect of officer’s testimony
implying that witness’s accusation was credible). In addition, the
jury received proper credibility instructions, including an
instruction that it was not bound to the opinions of witnesses.
¶ 82 Finally, the strength of the evidence of guilt militates against a
finding of prejudice from the detective’s single statement.
Substantial evidence pointed to Dominguez-Castor as the killer. He
confessed the murder both to a Facebook friend and a jailhouse
informant. His DNA, but not Atencio’s, was extracted from a bloody
glove found in the trailer. And Dominguez-Castor attempted to
cash checks taken from the victim’s trailer.
36
¶ 83 In light of the strength of the evidence and the surrounding
circumstances, we are confident that the detective’s isolated
statement did not substantially influence the verdict or affect the
fairness of the trial.
VI. Prosecutor’s Comments in Voir Dire
¶ 84 We now turn to Dominguez-Castor’s allegation of prosecutorial
misconduct. During voir dire of prospective jurors, the prosecutor
attempted to explain the element of deliberation by having the
jurors play the game of rock-paper-scissors and then discussing
their decision-making processes. The prosecutor apparently
intended the analogy to demonstrate that reflection and judgment
can occur quickly. Defense counsel did not object. Although we do
not endorse the prosecutor’s analogy, it does not require reversal.
¶ 85 Where a claim of error is not preserved by a contemporaneous
objection, we may reverse only if plain error occurred. Hagos, ¶ 14.
An error is plain if it is obvious, substantial, and so undermined the
fundamental fairness of a trial as to cast serious doubt on the
reliability of the conviction. Liggett v. People, 135 P.3d 725, 733
(Colo. 2006).
37
¶ 86 Plain error review for prosecutorial misconduct requires us to
examine the totality of the circumstances, with particular attention
to the exact language used, the nature of the misconduct, the
surrounding context, and the strength of the other evidence of guilt.
Wend, 235 P.3d at 1098; Domingo-Gomez v. People, 125 P.3d 1043,
1053 (Colo. 2005). Prosecutorial misconduct is plain error only if it
is “flagrantly, glaringly, or tremendously improper.” Domingo-
Gomez, 125 P.3d at 1053 (citation omitted).
¶ 87 Along with first degree felony murder, Dominguez-Castor was
charged with first degree murder “[a]fter deliberation.” § 18-3-
102(1)(a), C.R.S. 2019. “The term ‘after deliberation’ means not
only intentionally but also that the decision to commit the act has
been made after the exercise of reflection and judgment concerning
the act. An act committed after deliberation is never one which has
been committed in a hasty or impulsive manner.” § 18-3-101(3),
C.R.S. 2019.
¶ 88 Using an analogy to explain the concept of deliberation can be
problematic, especially where it might trivialize the reflection and
judgment necessary to commit first degree murder. See People v.
McBride, 228 P.3d 216, 224-25 (Colo. App. 2009); People v.
38
Cevallos-Acosta, 140 P.3d 116, 123 (Colo. App. 2005). Even so,
Dominguez-Castor has not shown that the analogy used here was
so prejudicial as to require reversal. See People v. Boykins, 140
P.3d 87, 95 (Colo. App. 2005) (“In review for plain error, the
defendant has the burden of persuasion with respect to prejudice.”).
¶ 89 Preceding the analogy was the prosecutor’s lengthy discussion
stressing the statutory requirements of reflection and judgment.
When the prosecutor presented the rock-paper-scissors analogy,
one prospective juror pushed back, citing the serious charges. At
the end of that discussion, the prosecutor clarified that the analogy
was intended merely to demonstrate that thought processes can
occur quickly. The prosecutor then returned to the concept of
reflection and judgment according to the statute.
¶ 90 Considering the entire context, the record reveals that the
prospective jurors were adequately informed of the distinction
between a rash decision and a choice made after reflection. Indeed,
some prospective jurors drew that distinction expressly.
¶ 91 Moreover, the prosecutor mentioned the analogy only during
voir dire. Rather than repeat it in closing, the prosecutor read the
statute and walked through the elements. People v. Van Meter,
39
2018 COA 13, ¶ 33 (finding no plain error where analogy was not
repeated after voir dire); cf. McBride, 228 P.3d at 224 (finding that
repeating the analogy in closing amplified prejudice). In addition,
the trial court instructed the jury on the proper definition of
deliberation. People v. Carter, 2015 COA 24M-2, ¶¶ 59-61 (holding
that instructions can cure prejudice from isolated and improper
analogy). Absent a contrary showing, we presume that the jury
followed that instruction. Cevallos-Acosta, 140 P.3d at 123.
¶ 92 Finally, the strength of the evidence of deliberation weighs
against a finding of plain error. The jury heard evidence that
Dominguez-Castor and Atencio discussed robbing the victim. When
Atencio was unsuccessful, Dominguez-Castor put on latex gloves,
grabbed a knife, and went to the bedroom. The ensuing struggle
lasted for several minutes, and the victim was ultimately stabbed
more than sixty times. From these circumstances, the jury had
ample evidence to conclude that the decision to kill was not made
hastily or impulsively.
¶ 93 Given these circumstances and the strength of the evidence,
we cannot say that the prosecutor’s isolated use of the analogy was
40
so prejudicial as to cast serious doubt on the reliability of the
conviction. See Liggett, 135 P.3d at 733.7
VII. Denial of Mistrial
¶ 94 We also reject Dominguez-Castor’s view that the trial court
erred by denying his motion for a mistrial after a juror fainted while
viewing autopsy photos of the victim.
¶ 95 A mistrial is a drastic remedy warranted only where “the
prejudice to the accused is too substantial to be remedied by other
means.” People v. Collins, 730 P.2d 293, 303 (Colo. 1986). We
review a trial court’s denial of a mistrial for an abuse of discretion.
People v. Pernell, 2014 COA 157, ¶ 24, aff’d, 2018 CO 13.
¶ 96 Dominguez-Castor’s mistrial motion was not prompted by
improper evidence or conduct but by a juror’s reaction to
admissible evidence: autopsy photos tending to show the victim’s
cause of death and the killer’s culpable mental state. See, e.g.,
7We also note that the remedy for the alleged error would simply be
a remand for the trial court to enter a conviction for first degree
murder-felony murder, rather than first degree murder-after
deliberation. Neither the felony level of Dominguez-Castor’s offense
nor his sentence would change.
41
People v. Ruibal, 2015 COA 55, ¶¶ 47-49 (admitting autopsy photos
for such purposes), aff’d, 2018 CO 93.8
¶ 97 The court carefully managed the fainting incident. It
canvassed the jury and determined — on an individual basis —
whether each juror could continue to be fair and impartial after the
fainting episode. Van Meter, ¶ 15 (canvassing the jury is a means to
cure prejudice without declaring a mistrial). The court determined
that the jury, including the juror who fainted, would not base its
decision on any sympathy toward the victim or prejudice against
Dominguez-Castor. Because the record provides support for the
court’s decision, we do not discern an abuse of discretion. See
People v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009) (trial court is
best positioned to evaluate the impact of trial events on the jury),
aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).
VIII. Constitutionality of Habitual Criminal Statutes
¶ 98 Finally, Dominguez-Castor contends for the first time on
appeal that Colorado’s habitual criminal statutes are
8 The trial court had excluded, under CRE 403, four of the fourteen
tendered autopsy photographs. A juror fainted while viewing a
photo the court found highly probative and helpful to the jury.
42
unconstitutional on their face and as applied to him because they
authorize a judge, rather than a jury, to make the factual findings
necessary for a habitual criminal adjudication. He says this
procedure violates the rule of Apprendi v. New Jersey, 530 U.S. 466
(2000). We think his claim is foreclosed by our supreme court’s
precedent recognizing the continued vitality of Apprendi’s prior
conviction exception. See, e.g., Lopez v. People, 113 P.3d 713, 723
(Colo. 2005). In any event, the alleged error was not obvious under
plain error analysis given the many cases rejecting this claim. See
People v. Poindexter, 2013 COA 93, ¶¶ 72-73 (collecting cases).
IX. Conclusion
¶ 99 The judgment of conviction and sentence are affirmed.
JUDGE HAWTHORNE and JUDGE FURMAN concur.
43