People v. Ortega
2016 COA 148
| Colo. Ct. App. | 2016Background
- Two men robbed a fast-food restaurant; an unmasked man (identified as David Maestas) shot an employee and they carried off the register.
- Police found a car linked to Maestas; inside were a cell phone and jeans matching the masked robber from surveillance.
- DNA testing of the jeans showed Ortega as the major contributor on the waistband and in a pocket; the phone belonged to Maestas’s wife but had been used by Maestas.
- Phone records (provided by Neustar/Cricket) showed calls from that phone to a number labeled “Ray’s mom” around the robbery dates.
- Ortega was convicted of aggravated robbery and later adjudicated a habitual offender; he appealed, raising Confrontation Clause challenges to admission of phone and sentencing/prison records and claiming prosecutorial misstatement about DNA in closing.
Issues
| Issue | People's Argument | Ortega's Argument | Held |
|---|---|---|---|
| Whether admission of phone records and custodian certification violated the Federal Confrontation Clause | Phone records and custodian certification are non‑testimonial business records admissible without live testimony | Records and custodian declaration were testimonial and required Confrontation protections | Court held phone records and certification were non‑testimonial; no federal confrontation violation |
| Whether Colorado Confrontation Clause required custodian unavailable before admitting phone records | Utility of confronting the records custodian was remote; Dement framework permits admission without unavailability showing | State clause requires showing of unavailability for nontestimonial hearsay | Court applied Dement, found cross‑examination would be of limited utility, so no state confrontation violation |
| Whether prosecutor misstated DNA evidence in closing (denying possibility someone else contacted the jeans) | Prosecutor’s argument reasonably responded to defense theory and was consistent with expert testimony about touch DNA; any inartful phrasing was permissible argument | Prosecutor misstated or overstated DNA evidence, denying reasonable alternative explanations | Court found argument reasonably based on testimony, not an abuse of discretion; no misconduct |
| Whether sentencing/prison records in habitual offender proceeding required declarant testimony or unavailability showing under state Confrontation Clause | Sentencing/prison records are routine administrative records; cross‑examination of judges/clerks would be of limited utility | Admission required showing of unavailability of the declarants | Court held Dement exception applied; records admissible without showing unavailability |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (confrontation test for testimonial statements)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (certificates created for prosecution may be testimonial)
- Michigan v. Bryant, 562 U.S. 344 (distinguishing testimonial and non‑testimonial statements)
- United States v. Yeley-Davis, 632 F.3d 673 (10th Cir.) (cell phone records and custodian certification held non‑testimonial)
- United States v. Keck, 643 F.3d 789 (10th Cir.) (electronically stored business data are non‑testimonial regardless of printout format)
- United States v. Ellis, 460 F.3d 920 (7th Cir.) (certification authenticating business records is nontestimonial)
- United States v. Brinson, 772 F.3d 1314 (10th Cir.) (certificate authenticating records without analysis is nontestimonial)
- United States v. Adefehinti, 510 F.3d 319 (D.C. Cir.) (custodian certifications of business records do not violate Confrontation Clause)