v. Dominguez
2019 COA 78
Colo. Ct. App.2019Background
- Police found Dominguez hiding after a high-speed flight from a verbal altercation; his abandoned truck contained ~208 g methamphetamine, three small baggies, an electronic scale with residue, a small spoon, syringes, a glass pipe, and a cell phone.
- Officers imaged the phone and admitted photographed text messages sent to Dominguez’s phone (e.g., “Can you do 2 for 1500” and “Can you do 2 for 1600”).
- Dominguez was charged with possession with intent to distribute, possession of paraphernalia, vehicular eluding, reckless driving, and driving under restraint; a jury convicted and the court sentenced him to 12 years.
- At trial, two police agents testified with opinions grounded in their training and experience (scale use for distribution; interpretation of texts/pricing/code words). Defense objected that those were expert opinions improperly offered as lay testimony.
- Defense also objected to admission of the texts as hearsay and argued CRE 403, due process, prosecutorial misconduct (closing), and merger (reckless driving with vehicular eluding).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of texts — hearsay | Texts are verbal acts/performative (not hearsay) and admissible to show solicitation/offers to buy drugs. | Texts are hearsay offered to prove the implied assertion that Dominguez was a dealer. | Texts are verbal acts (offers/solicitations), not hearsay, so admissible. |
| Texts — CRE 403 prejudice | Texts were highly probative of distribution intent and not inflammatory. | Probative value depended on speculative inferences and unfairly prejudiced jury. | No plain error; probative value outweighed prejudice and CRE 403 exclusion not warranted. |
| Agents’ opinion testimony (lay v. expert) | Agents’ testimony about scale, pricing, quantities, and code words aided factfinder and was proper lay opinion. | Opinions were based on specialized training/experience and required expert qualification under CRE 702. | Trial court abused discretion admitting these as lay opinions, but error was harmless given overwhelming independent evidence of intent to distribute. |
| Prosecutorial comment on reasonable doubt | Comment was a brief misstatement but jury was properly instructed; no reversal needed. | Comment redefined reasonable doubt and warranted reversal. | Even assuming misstatement, single brief comment plus correct jury instructions meant no plain error. |
| Merger — reckless driving and vehicular eluding | Two convictions permissible where offenses arose from distinct, temporally separated conduct. | Reckless driving is a lesser included offense of vehicular eluding and must merge. | No plain error: evidence showed two separate reckless-driving incidents, so convictions need not merge. |
Key Cases Cited
- Griffin v. People, 985 P.2d 15 (Colo. App. 1998) (discusses intent-based approach to whether out-of-court conduct is an assertion for hearsay purposes)
- Scearce v. People, 87 P.3d 228 (Colo. App. 2003) (verbal acts are not hearsay because they are performative and not offered for truth)
- Rodriguez-Lopez v. United States, 565 F.3d 312 (6th Cir. 2009) (repeated solicitations admitted to show they were made, not for their truth)
- Montana v. United States, 199 F.3d 947 (7th Cir. 1999) (performative utterances fall outside hearsay rule)
- Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201 (3d Cir. 2002) (offer to sell at a price is a verbal act, not hearsay)
- Stewart v. People, 55 P.3d 107 (Colo. 2002) (police testimony based on training/experience constitutes expert testimony and requires qualification)
- Garner v. State, 995 A.2d 694 (Md. Ct. Spec. App. 2010) (purchase requests for drugs are verbal acts and not hearsay)