v. Dominguez-Castor

2020 COA 1

• Court: Colorado Court of Appeals
• Decided: January 2, 2020
• Docket: 15CA0648, People
• Status: Published

Opinion

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.