COLORADO COURT OF APPEALS 2017COA129
Court of Appeals No. 15CA0410
Adams County District Court No. 13CR1830
Honorable John E. Popovich, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Victor Manuel Mendez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE ROMÁN
Navarro and Nieto*, JJ., concur
Announced October 19, 2017
Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Meredith Osborne, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Victor Manuel Mendez, appeals the judgment of
conviction entered after a jury found him guilty of distribution of a
schedule II controlled substance. Mendez asserts the use of video
surveillance inside his home constituted an unreasonable search in
violation of the Fourth Amendment to the United States
Constitution. In a case of first impression in Colorado, we conclude
that the use of video surveillance by a confidential informant (CI)
when the CI is invited into the surveilled area does not violate the
Fourth Amendment. Mendez also challenges as abuses of
discretion the district court’s remedy for a discovery violation and
the jury’s unfettered access to certain evidence during
deliberations. We affirm.
I. Background
¶2 A CI approached a police investigator with a potential target
for a controlled drug buy. The CI informed the investigator that he
knew someone with several pounds of methamphetamine. The CI
had previously worked with Colorado drug task forces in exchange
for financial compensation. But in this case, the CI also inquired
whether the investigator would be able to help him with his
1
immigration status. The investigator said he would look into the
request but never got back to the CI.
¶3 In the meantime, the investigator arranged for the CI to
purchase methamphetamine from Mendez in a controlled drug buy.
Prior to the buy, police strip-searched the CI and found no drugs on
his person. With the CI’s consent, police equipped him with an
audio recording wire, as well as a concealed video camera. The
video camera was capable of recording both audio and video
transmissions. The investigator then drove the CI to Mendez’s
apartment, gave him $100.00 to purchase methamphetamine, and
waited in a nearby vehicle.
¶4 During the controlled buy, audio from the CI’s wire was
transmitted simultaneously to the police. The audio and video
transmissions from the video camera were not transmitted
simultaneously, although police were able to view the video
recording after the buy had been completed.
¶5 When the CI returned to the police vehicle after the buy, he
gave the investigator a plastic container of methamphetamine and
$80.00 in cash, was taken to the police station, and was strip-
2
searched a second time. The People then charged Mendez with
distribution of a schedule II controlled substance.
¶6 Prior to trial, Mendez filed a motion to suppress evidence
obtained during the CI’s entry into his apartment, arguing that the
use of video surveillance constituted an unlawful search of his
home under the Fourth Amendment. The district court denied the
motion, concluding that because Mendez consented to the CI’s
entry into his home, the Fourth Amendment was not implicated.
Mendez did not challenge the evidence as an unlawful search under
the Colorado Constitution.
¶7 At trial, the People presented testimonial evidence from the CI
and the investigator, as well as the video recording (which included
audio), several photos taken from the video recording, and a written
transcript of the audio taken from the video recording. The
transcript included the conversation held between Mendez and the
CI, translated from Spanish into English. In the conversation,
Mendez stated he did not have $100.00 worth of methamphetamine
but could sell $20.00 worth of methamphetamine to the CI. A
photo from the recording showed Mendez, wearing a red and white
striped shirt, in his apartment. Another photo showed a man
3
wrapping something in plastic, and, while his face was not visible,
the man was wearing the same shirt.
II. Analysis
¶8 Mendez contends his conviction must be reversed because (A)
the video recording of the controlled buy should have been
suppressed as the result of an unreasonable search under the
Fourth Amendment; (B) the district court failed to provide an
adequate remedy for a discovery violation; and (C) the district court
abused its discretion in failing to limit the jury’s access to the video
recording and transcript during deliberations. We discern no
reversible error.
A. Warrantless Search
¶9 According to Mendez, the district court erred in denying his
motion to suppress the video recording of the controlled drug buy.
Specifically, he asserts the use of video surveillance inside his home
constituted an unreasonable search in violation of the Fourth
4
Amendment.1 We are not persuaded. Rather, we agree with several
federal circuits that have addressed this issue.
1. Standard of Review
¶ 10 Our review of a district court’s denial of a motion to suppress
presents mixed questions of law and fact. People v. Martin, 222
P.3d 331, 334 (Colo. 2010). Although we defer to the district court’s
factual findings where there exists sufficient evidence in the record
to support them, we review the district court’s conclusions of law de
novo. Id.
2. Applicable Law
¶ 11 The Fourth Amendment to the United States Constitution
prohibits unreasonable searches and seizures. U.S. Const. amend.
IV; People v. Allison, 86 P.3d 421, 426 (Colo. 2004). The central
inquiry in determining whether the Fourth Amendment applies “is
1 On appeal, Mendez also raises a claim under the Colorado
Constitution; however, his motion to suppress before the district
court was limited to arguments under the Fourth Amendment.
Appellate courts should not reach Colorado Constitutional
arguments raised for the first time on appeal. Martinez v. People,
244 P.3d 135, 139 (Colo. 2010). Because Mendez did not draft his
motion “with sufficient particularity to draw the [district] court’s
attention to a Colorado Constitutional violation,” our review is
limited to his federal constitutional claim. Id.
5
whether the defendant had a reasonable expectation of privacy from
government intrusion in the area searched.” People v. Galvadon,
103 P.3d 923, 924 (Colo. 2005).
¶ 12 “As the Supreme Court has recognized, ‘[w]hat a person
knowingly exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection.’” Hoffman v. People,
780 P.2d 471, 474 (Colo. 1989) (alteration in original) (quoting Katz
v. United States, 389 U.S. 347, 351 (1967)). “This principle applies
with equal force to statements knowingly exposed to government
informants.” United States v. Longoria, 177 F.3d 1179, 1182 (10th
Cir. 1999).
¶ 13 Thus, a “defendant does not have a justifiable and
constitutionally protected expectation that a person with whom he
is conversing will not then or later reveal the conversation to
police.” People v. Strozzi, 712 P.2d 1100, 1102 (Colo. App. 1985).
Likewise, an informant “who conceals his police connections may
either report or record a conversation with a defendant without
violating defendant’s Fourth Amendment rights.” Id. (emphasis
added); see also United States v. White, 401 U.S. 745, 749 (1971)
(holding that a defendant has no reasonable expectation of privacy
6
regarding conversations held in his home and audio-recorded by a
third party).
3. Discussion
¶ 14 Mendez concedes that audio surveillance by a CI welcomed
into his home does not violate the Fourth Amendment. But he
urges that video surveillance is different, as it allows police to
“essentially gain virtual entry into the apartment in the form of a
video camera.” Thus, according to Mendez, the CI’s use of video
surveillance in this case was an unreasonable search.2
¶ 15 We disagree and note, as a federal circuit court observed in
affirming a district court’s language, “every federal appellate court
to decide the issue [has] concluded that there is no constitutionally
relevant distinction between secret audio and video recordings
when the informant gathers the information from a location where
he is lawfully entitled to be.” United States v. Thompson, 811 F.3d
944, 947 (7th Cir. 2016) (affirming district court’s findings in United
States v. Thompson, No. 14-CR-90-WMC, 2015 WL 667925, at *8
2Mendez also argues that the CI in this case was an agent of the
police. The People do not dispute this point.
7
(W.D. Wis. Feb. 17, 2015)); see also United States v. Brathwaite,
458 F.3d 376, 380 n.4 (5th Cir. 2006) (collecting cases).
¶ 16 For example, in Brathwaite, the Fifth Circuit held that a
defendant forfeited any privacy interests he may have had when he
invited an informant, who videotaped the defendant’s counterfeiting
activities, into his home. 458 F.3d at 380-81. In so concluding, the
court applied the same rationale to a CI’s observations as has been
applied to conversations with a CI: “[J]ust as [the defendant] gave
up any expectation of privacy in the things that he allowed [the CI]
to hear, [the defendant] also gave up any expectation of privacy in
the things that he allowed [the CI] to see.” Id. at 381 (quoting
United States v. Lee, 359 F.3d 194, 201-02 (3d Cir. 2004)).
¶ 17 This logic tracks the reasoning applied by the Supreme Court
with regard to the Fourth Amendment and electronic surveillance.
See, e.g., White, 401 U.S. at 751 (holding that, just as an informant
“may write down for official use his conversations with a defendant
and testify concerning them, . . . no different result is required if the
agent . . . records them with electronic equipment which he is
carrying on his person”). As the Third Circuit observed: “The
principle underlying the governing Supreme Court cases is that if a
8
defendant consents to the presence of a person who could testify
about a meeting and is willing to reveal what occurs, the defendant
relinquishes any legitimate expectation of privacy with respect to
anything . . . the testimony could cover.” Lee, 359 F.3d at 201
(finding no “constitutional distinction between consensual audio
and video surveillance”).
¶ 18 The Second Circuit adopted the same approach in United
States v. Davis, 326 F.3d 361, 363 (2d Cir. 2003). There, “videotape
evidence, which merely showed scenes viewable by [a CI]” was not
subject to the Fourth Amendment because “the hidden camera
merely memorialized what [the CI] was able to see as an invited
guest.” Id. at 366.
¶ 19 We agree with these federal circuits and conclude that the use
of video surveillance through the CI, in this case, did not violate the
Fourth Amendment. Mendez invited the CI into his apartment for
the purpose of engaging in a drug transaction. Thus, the CI
gathered “information from a location where he [was] lawfully
entitled to be.” Thompson, 811 F.3d at 947. “That the informant
recorded his observations on video did not transform the
consensual encounter into a search for purposes of the Fourth
9
Amendment.” Id. at 949. Because Mendez consented to the CI’s
presence in his home, he gave up any reasonable expectation of
privacy in what the CI could observe or visually record. See
Brathwaite, 458 F.3d at 381.
¶ 20 We recognize that a division of this court observed, in People v.
Lesslie, 939 P.2d 443, 447 (Colo. App. 1996), that “it is generally
accepted that there is a legitimate expectation of freedom from
visual electronic surveillance by police in private restrooms or
private areas of public restrooms.” But, as that division observed,
“whether there is a legitimate expectation of privacy in a particular
case depends necessarily on the facts and circumstances.” Id. at
446. Unlike electronic surveillance by police in private restrooms or
private areas of public restrooms, here we conclude that, under the
circumstances, Mendez had no legitimate expectation of privacy in
his home. The facts and circumstances in Lesslie involved
conversations in a restroom recorded by a hidden listening device
on the windowsill. Id. at 445. By contrast, here, Mendez consented
to the presence of a CI who observed and recorded a drug
transaction in Mendez’s home. Indeed, the Lesslie court recognized
that electronic surveillance “may be properly used to reveal
10
information otherwise available by personal observation were a
police agent actually present.” Id. at 448.
¶ 21 The other cases Mendez cites as support for his argument that
video surveillance is constitutionally different from audio
surveillance each rely on state constitutional provisions that are
inapplicable here. See Commonwealth v. Blood, 507 N.E.2d 1029,
1032-33, 1038 (Mass. 1987) (noting that “warrantless surveillance
with ‘one party consent’ has been held to lie beyond the protective
reach of the Fourth Amendment to the United States Constitution,”
but concluding that the same is not true under article 14 of the
Massachusetts Constitution); Commonwealth v. Dunnavant, 63 A.3d
1252, 1255 n.2 (Pa. Super. Ct. 2013) (declining to apply federal
precedent to video surveillance by a CI because “Pennsylvania
courts are not bound by the decisions of inferior federal courts
where the case specifically concerns Pennsylvania law”), aff’d by an
equally divided court, 107 A.3d 29 (Pa. 2014); State v. Mullens, 650
S.E.2d 169, 188 (W. Va. 2007) (holding that warrantless electronic
surveillance through an informant violates the West Virginia
Constitution, which may “require higher standards of protection
11
than afforded by the Federal Constitution” (quoting Pauley v. Kelly,
255 S.E.2d 859, 861 (W. Va. 1979))).
¶ 22 We conclude the CI’s video surveillance of Mendez’s home was
not an unreasonable search under the Fourth Amendment.
Accordingly, the district court properly denied the motion to
suppress the resulting video recording.
B. Discovery Violation
¶ 23 Mendez next asserts the district court abused its discretion by
failing to provide an adequate remedy for a discovery violation. He
argues the prosecution’s failure to disclose a conversation between
the CI and a police investigator about the Department of Homeland
Security constituted a violation of his constitutional rights under
Brady v. Maryland, 373 U.S. 83 (1963), and that the district court’s
chosen remedy deprived him of a fair trial. We are not persuaded.
1. Additional Facts
¶ 24 At trial, the CI testified that he received $100.00 for his
participation in the controlled drug buy. During cross-examination,
he further testified that he was not a United States citizen and he
had notified the investigator of this fact.
12
¶ 25 The People then called the investigator. When asked whether
any other arrangements were made, the investigator testified:
We had discussed, if [the CI was] able to do
much larger amounts, possibly working with
Homeland Security. I know we’ve had other
informants that we’ve done that for. But we
never got to that point.
Then, when asked if the CI was promised any help with
immigration, the investigator testified that “[h]e was not promised,
no.”
¶ 26 Based on the prosecution’s failure to disclose the discussion
regarding Homeland Security, defense counsel moved to dismiss the
charge on the basis of (1) prosecutorial misconduct; (2) a Crim. P.
16 discovery violation; and (3) a Brady violation. Specifically,
defense counsel argued Mendez was entitled to exculpatory
information, and that this included the investigator’s discussion
with the CI regarding possible help with immigration. She further
noted that she had not had an opportunity to cross-examine the CI
on this issue.
¶ 27 The district court denied the motion to dismiss because there
was no showing of prosecutorial misconduct, and it made no
findings as to whether there was a Brady violation. It did, however,
13
find a Rule 16 discovery violation. As a sanction for the discovery
violation, it ordered the investigator to make himself available for an
interview with defense counsel to determine the scope of his
representations to the CI.
¶ 28 Defense counsel also requested, however, that the CI be
subject to recall for cross-examination, arguing that his testimony
about “what information was provided to him . . . could be contrary
to what the detective [would say], and that would be impeachment,
and that would go to his credibility.”
¶ 29 The district court denied the request, and then it recessed for
half an hour to allow defense counsel to interview the investigator.
¶ 30 When trial resumed, the investigator testified that he had one
conversation with the CI about providing help with immigration. He
further testified that he “told [the CI] he would look into it” and
that, although he spoke with another investigator who had worked
with Homeland Security in the past, he never informed the CI of
that conversation.
¶ 31 At the close of the prosecution’s case, defense counsel again
moved to dismiss the charges or, alternatively, for a mistrial. She
argued Mendez was prejudiced because the prosecution’s prior
14
disclosure of the immigration conversation “would have changed the
cross-examination” of the CI. The district court again denied the
motion.
2. Standard of Review
¶ 32 We review both a district court’s resolution of discovery issues
and its decision to impose sanctions for discovery violations for an
abuse of discretion. People v. Bueno, 2013 COA 151, ¶ 10 (cert.
granted on other grounds, Nov. 24, 2014).
¶ 33 In determining the appropriate sanction, a district court must
exercise its discretion “with due regard for the purposes of the
discovery rules themselves and the manner in which those
purposes can be furthered by discovery sanctions.” People v. Lee,
18 P.3d 192, 196 (Colo. 2001). Except where the sanction is
designed to deter future misconduct, “the goal must be to cure any
prejudice resulting from the violation.” Id. at 197. In other words,
the district court should strive to “restore a ‘level playing field,’”
without affecting the evidence or the merits of the case. Id. (quoting
People v. Dist. Court, 808 P.2d 831, 837 (Colo. 1991)).
¶ 34 “Because of the multiplicity of considerations involved and the
uniqueness of each case, . . . an order imposing a discovery
15
sanction will not be disturbed on appeal unless it is manifestly
arbitrary, unreasonable, or unfair.” Id. at 196.
¶ 35 We review trial errors in resolving Brady violations for
constitutional harmless error. See Brady, 373 U.S. at 87 (holding
that “suppression by the prosecution of evidence favorable to an
accused upon request violates due process”) (emphasis added).
Under this standard, reversal is required unless we are “able to
declare a belief that [the error] was harmless beyond a reasonable
doubt.” Hagos v. People, 2012 CO 63, ¶ 11 (“In other words, we
reverse if ‘there is a reasonable possibility that the [error] might
have contributed to the conviction.’” (quoting Chapman v.
California, 386 U.S. 18, 24 (1967))) (alteration in original).
¶ 36 We review non-constitutional errors that were preserved at
trial for harmless error. Id. at ¶ 12. Under this standard, reversal
is required only if the error “substantially influenced the verdict or
affected the fairness of the trial proceedings.” Id. (quoting Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986)).
3. Legal Standards
¶ 37 “It is well-settled that a prosecuting attorney has both a
statutory and a constitutional obligation to disclose to the defense
16
any material, exculpatory evidence he possesses.” Salazar v.
People, 870 P.2d 1215, 1220 (Colo. 1994).
¶ 38 In its landmark Brady v. Maryland decision, the Supreme
Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373
U.S. at 87. “There are three components to a true Brady violation:
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Bueno, ¶ 12
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
¶ 39 Under Crim. P. 16(I)(a)(2), a prosecutor “shall disclose to the
defense any material or information within his or her possession or
control which tends to negate the guilt of the accused as to the
offense charged or would tend to reduce the punishment therefor.”
This discovery rule “incorporates the holding of Brady v. Maryland.”
People v. Bradley, 25 P.3d 1271, 1276 (Colo. App. 2001); see also
Bueno, ¶ 11 (“Under Crim. P. 16(I)(a)(2), prosecutors in Colorado are
17
obligated to disclose Brady material to an accused . . . .” (quoting
People v. Dist. Court, 790 P.2d 332, 338 (Colo. 1990))).
4. Discussion
¶ 40 Mendez argues the district court abused its discretion by
imposing an inadequate remedy for the prosecution’s failure to
disclose the fact that the CI asked for immigration help and the
investigator said he would look into it. Although Mendez argues
this was a Brady violation, the district court never ruled whether a
Brady violation occurred. Rather, it found a Rule 16 discovery
violation and imposed a sanction accordingly. Mendez argues the
district court’s chosen sanction — allowing defense counsel to
interview the investigator — did not make up for his inability to
cross-examine the CI regarding his motive for participating in the
controlled buy.
¶ 41 We agree that the district court’s discovery sanction was
inadequate in this case because Mendez was given no opportunity
to cross-examine the CI about whether he believed he would receive
immigration support from Homeland Security for his willingness to
participate in the controlled buy. That belief could have been
relevant to the CI’s motive, regardless of the investigator’s memory
18
of the conversation. And, the remedy the district court provided —
an opportunity for defense counsel to interview the investigator
about the conversation — did not cure that potential prejudice.
¶ 42 Nevertheless, even under the heightened harmless beyond a
reasonable doubt standard, applied to Brady violations, we
conclude the district court’s error does not warrant reversal.
¶ 43 To begin with, despite his inability to cross-examine the CI
about whether his motive for helping the police was to secure
immigration support from Homeland Security, Mendez
acknowledges, in his reply brief, that “the defense had quite
successfully called [the CI’s] credibility into doubt” by the end of
trial.
¶ 44 Moreover, overwhelming evidence at trial supported Mendez’s
conviction, including the following:
a video recording taken by the CI during the controlled
buy at Mendez’s apartment, which we have already ruled
was admissible;
a photo from the recording showing Mendez’s face;
another photo of a person wearing the same clothing as
Mendez and packaging something in plastic;
19
the investigator’s testimony that the CI handed him a
plastic package containing methamphetamine after the
controlled buy;
the CI’s testimony that he purchased methamphetamine
from Mendez during the controlled buy; and
testimony from both the investigator and the CI that the
CI was strip-searched, and no drugs were found, before
he was given $100.00 and went in for the controlled buy
and that, after the buy, the CI gave the investigator
$20.00 worth of methamphetamine and $80.00 in cash
and was strip-searched a second time.
¶ 45 In light of this overwhelming evidence, we conclude the error
was harmless beyond a reasonable doubt. That is, even assuming
the prosecutor’s failure to disclose constituted a Brady violation, we
conclude there is no reasonable possibility that the district court’s
failure to provide an adequate sanction “might have contributed to
the conviction.” Hagos, ¶ 11 (quoting Chapman, 386 U.S. at 24).
¶ 46 This means, of course, any error in the district court’s
issuance of a sanction under Rule 16 was necessarily harmless
under the lesser non-constitutional standard. See id. at ¶ 12
20
(noting that reversal under non-constitutional harmless error review
“is more difficult to obtain . . . because this standard requires that
the error impair the reliability of the judgment of conviction to a
greater degree than the constitutional harmless error standard
requires”).
C. Jury Access to Evidence During Deliberations
¶ 47 Finally, Mendez argues the district court abused its discretion
in failing to limit the jury’s access to the video recording and
transcript during deliberations. We discern no abuse of discretion.
1. Additional Facts
¶ 48 At the conclusion of trial, the People requested that the video
recording and written transcript go back with the jury for its use
during deliberations. Mendez objected, arguing the jury would
place undue emphasis on this evidence if given unfettered access.
¶ 49 The district court declined to limit the jury’s access to the
evidence, finding that the video recording and transcript were “part
and parcel of the same” non-testimonial evidence and that two
photos from the video — to which the jurors had unlimited access
— had already been admitted.
21
2. Standard of Review
¶ 50 “Control over the use of exhibits during jury deliberations
rests firmly within the [district] court’s discretion, and we may not
substitute our own judgment for that of the [district] court merely
because we would have reached a different conclusion.” Rael v.
People, 2017 CO 67, ¶ 15. Thus, “a court’s refusal to exclude or
otherwise limit the use of an exhibit will generally be overturned
only when it is manifestly arbitrary, unreasonable, or unfair.”
DeBella v. People, 233 P.3d 664, 667 (Colo. 2010).
3. Applicable Law
¶ 51 District courts must ensure that the evidence provided during
deliberations is not used in such a manner “that there is a
likelihood of it being given undue weight or emphasis by the jury.”
Frasco v. People, 165 P.3d 701, 706 (Colo. 2007) (Martinez, J.,
specially concurring) (quoting Settle v. People, 180 Colo. 262, 264,
504 P.2d 680, 681 (1972)). In doing so, the district court must
“assess whether the exhibit will aid the jury in its proper
consideration of the case, and even if so, whether a party will
nevertheless be unfairly prejudiced by the jury’s use of it.” DeBella,
233 P.3d at 668 (quoting Frasco, 165 P.3d at 704-05).
22
¶ 52 This rule flows from the observation that “honoring requests
for access in the jury room to witnesses’ out-of-court statements
effectively puts the witness in that room during deliberations and
creates a risk that the jury will place undue weight or emphasis on
the out-of-court statements.” Rael, ¶ 22. It is error, therefore, “for
a [district] court to allow the jury, during deliberations, ‘to engage in
the unsupervised, and perhaps repetitive, viewing’ of a videotape”
containing testimonial evidence. People v. Aponte, 867 P.2d 183,
188 (Colo. App. 1993) (quoting People v. Montoya, 773 P.2d 623,
626 (Colo. App. 1989)).
¶ 53 However, “[t]he same danger of undue emphasis does not
inhere in non-testimonial evidence.” Rael, ¶ 23. Thus, “courts in
Colorado and other jurisdictions have consistently upheld juror
access to such non-testimonial exhibits.” Id. (collecting cases).
4. Discussion
¶ 54 Mendez contends the district court abused its discretion in
giving the jury unfettered access to the video recording and
transcript on the basis of this evidence being non-testimonial —
that is, he argues a district court is required to retain control over
all jury exhibits, whether they are testimonial or not.
23
¶ 55 Our supreme court’s decision in Rael, however, makes clear
that a district court need not limit juror access to non-testimonial
evidence. Id. (quoting Chambers v. State, 726 P.2d 1269, 1275
(Wyo. 1986), for the proposition that “[n]ontestimonial exhibits with
[verbal] content, such as . . . recordings of criminal acts which are
verbal in nature, are generally allowed to go into the
deliberations”).3
¶ 56 Mendez does not dispute that the video recording and
transcript admitted in this case were non-testimonial. See Aponte,
867 P.2d at 188 (holding that a video recording taken by a CI and
its corresponding transcript were “non-testimonial in character”).
His sole contention is that the district court misapplied the law
when it distinguished between testimonial and non-testimonial
evidence. We conclude that “the jury was entitled to access the
non-testimonial [evidence] because [it] did not present the same risk
3 Although Rael v. People was decided after briefing in this case, it
merely clarified the supreme court’s prior holdings on this issue —
that its analysis in DeBella v. People, 233 P.3d 664 (Colo. 2010),
“hinged on the nature of the exhibits at issue, namely, the victim’s
videotaped, out-of-court statements.” 2017 CO 67, ¶ 22; see also
DeBella, 233 P.3d at 666 (noting that because a cited opinion
merely clarified and “reaffirmed the vitality of” a prior decision, it
“did not set forth a new rule of law on this issue”).
24
of undue emphasis as do videos documenting witnesses’ out-of-
court, testimonial statements.” Rael, ¶ 2. Because the district
court properly applied this controlling precedent, we discern no
abuse of discretion in its decision to grant the jury unfettered
access to the video recording and transcript in this case. See id. at
¶ 24.
III. Conclusion
¶ 57 The judgment is affirmed.
JUDGE NAVARRO and JUDGE NIETO concur.
25