The People of the State of Colorado v. Daniel J. Gonzales
No. 16CA0750
COLORADO COURT OF APPEALS
March 7, 2019
2019COA30
City and County of Denver District Court No. 15CR20002. Honorable Sheila A. Rappaport, Judge. JUDGMENT AFFIRMED. Division I. Opinion by JUDGE BERGER. Tow, J., concurs. Taubman, J., specially concurs.
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
March 7, 2019
2019COA30
No. 16CA0750, People v. Gonzales — Evidence — Requirement of Authentication or Identification — Audio Recordings
In a case involving the submission of a voicemail as evidence, the division addresses the standards for authenticating an audio recording under
The division concludes that
Applying this analysis, the division concludes that the trial court did not abuse its discretion in admitting the contested voicemail.
The division also concludes that the trial court did not abuse its discretion in admitting a photograph of the defendant‘s bare torso and arms that showed the defendant‘s tattoos.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE BERGER
Tow, J., concurs
Taubman, J., specially concurs
Announced March 7, 2019
Philip J. Weiser, Attorney General, Melissa D. Allen, Assistant Attorney General, Colleen R. Wort, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado,
¶ 1 This case addresses the standards for authenticating an audio recording under
¶ 2 We reject Gonzales‘s claim because, to the extent Baca purports to establish an exclusive rule for the authentication of a voice recording, we decline to follow it. We also conclude that when the flexible principles of authentication set forth in
I. Relevant Facts and Procedural History
¶ 3 The evidence admitted at trial, particularly the full confession Gonzales made to the police, established the following facts. Gonzales grew up down the street from the victim and from a young age was sexually attracted to the victim. When he was about eighteen, Gonzales and a friend broke into the victim‘s house. The friend stole a TV and a VCR while Gonzales hunted for clues in the house that the victim was gay. Gonzales also stole some of the victim‘s clothing.
¶ 4 Gonzales eventually moved away from the victim‘s neighborhood, but his interest in the victim did not disappear. Years later, Gonzales returned to the victim‘s house, breaking in through the back door. After gaining entry, Gonzales grabbed a large knife from the kitchen and waited a substantial period of time for the victim to return. When he did, Gonzales repeatedly stabbed him in the neck, killing him. Gonzales then sexually assaulted the victim‘s dead body and attempted, unsuccessfully, to set the house on fire to destroy the evidence. Gonzales fled the scene with a credit card, debit card, and cash that he had taken from the victim‘s wallet. He was arrested a short time later in Florida.
¶ 5 At trial, the prosecution presented a video recording of Gonzales‘s confession, as well as other evidence. The jury convicted Gonzales of all charges, the court sentenced him to life in prison without the possibility of parole plus forty-eight years, and he now appeals.
II. The Trial Court Did Not Abuse Its Discretion When It Admitted the Voicemail
¶ 6 Gonzales first argues that the trial court erred in admitting a voicemail allegedly left by Gonzales for the victim because the prosecution did not properly authenticate the recording of the voicemail under the test set out in Baca, ¶ 30.
¶ 7 We review a trial court‘s evidentiary rulings for an abuse of discretion. Davis v. People, 2013 CO 57, ¶ 13. A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or if its ruling is based on an erroneous view of the law. People v. Hard, 2014 COA 132, ¶ 22.
A. Additional Factual Background
¶ 8 After the police completed their crime scene analysis, the victim‘s sister went to the house to put the victim‘s affairs in order. She found a microcassette audiotape along with documents related to an earlier burglary of the victim‘s house. On the tape, a man says that he has the victim‘s pajamas and jeans. He also says that he is going to return those items to the victim, but not the other items that were stolen. The sister listened to the tape and, recognizing its value, gave it to the police.
¶ 9 At trial, one of the detectives who had interviewed Gonzales after his arrest testified that he had also watched the video of that interview and had compared Gonzales‘s voice in the interview to the voice on the tape. The detective testified that the voice on the tape sounded like Gonzales‘s voice. On that basis, the prosecutor argued that the tape recording had been properly authenticated. Gonzales objected to the admission of the tape recording of the voicemail on authentication grounds, but the trial court overruled the objection.
B. Analysis
¶ 10 In Baca, a division of this court held that
[i]f no witness with independent knowledge of the content of the [recording] can verify the accuracy of the recorded conversation, the proponent must instead present a witness who can verify the reliability of the recording process, by establishing the factors laid out in Alonzi: the competency of the recorder, the reliability of the recording system, the absence of any tampering with the recording, and the identification of the speakers.
Baca, ¶ 30 (citing Alonzi v. People, 198 Colo. 160, 163, 597 P.2d 560, 562 (1979)). In so doing, the division appears to have established an exclusive rule, regardless of the factual circumstances presented, to authenticate an audio recording.1
¶ 11 In devising its exclusive test for the authentication of an audio recording, the division relied on the Colorado Supreme Court‘s Alonzi decision (and other authorities) that predated the supreme court‘s adoption of the Colorado Rules of Evidence. Baca, ¶¶ 26-28, 30.
¶ 12 The Attorney General argues that Baca was wrongly decided and is inconsistent with the language and underlying purpose of
1. CRE 901 Does Not Prescribe Exclusive Tests for the Authentication of Evidence; Instead, CRE 901 Requires Trial Courts to Consider All the Circumstances Surrounding the Evidence
¶ 13 The burden to authenticate is not high — only a prima facie showing is
¶ 14
¶ 15 There is only one rule stated in
¶ 16 Notably, one such illustration states that [i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker is consistent with the authentication requirements in
¶ 17 The Baca division relied heavily on a decision by the Colorado Supreme Court that predated the adoption of the Colorado Rules of Evidence. Baca, ¶¶ 26-27, 29 (citing Alonzi, 198 Colo. at 163, 597 P.2d at 562). Alonzi, in turn, note[d] with approval the test set out in United States v. Biggins, 551 F.2d 64 (5th Cir. 1977), which is similar to the test established in Baca. 198 Colo. at 163, 597 P.2d at 562. But, in a portion of Biggins not quoted by the supreme court in Alonzi (and not noted by the Baca division), the Fifth Circuit also stated, [i]f the trial judge independently determines that the recording accurately reproduces the auditory evidence, however, his discretion to admit the evidence is not to be sacrificed to a formalistic adherence to the standard we establish. 551 F.2d at 67.
¶ 18 Moreover, there is a real question whether the portion of Alonzi relied on by the Baca division was dictum. As stated by the supreme court, the precise question presented in Alonzi was whether the proponent of an audio recording was required to prove a chain of custody. Alonzi, 198 Colo. at 163, 597 P.2d at 562. The supreme court held that a chain of custody was not always required. Id. Having definitively answered the question raised by the appellant, the court nevertheless addressed other matters not necessary to its decision. Id.
¶ 19 Even if the supreme court‘s statements in Alonzi regarding the required methods to authenticate an electronic recording constitute a holding of the court, and not dictum, the source of authority for both Alonzi and the Colorado Rules of Evidence is the same — the Colorado Supreme Court. See
¶ 20 Neither the language of
¶ 21 We agree that
¶ 22 In some cases, under some circumstances, particularly when there is a colorable claim that a recording has been altered, the factors discussed in Baca may be highly pertinent to the authenticity determination. In other cases, the factors identified by Baca may be inapplicable or unnecessary.
¶ 23 The deficiencies of such a categorical rule are illustrated by the facts in State v. Smith, 540 P.2d 424 (Wash. 1975). In that murder case, the victim took the precaution of carrying a tape recorder with him while keeping an appointment with the murderer. Id. at 426. During the victim‘s autopsy, the authorities found the tape recording. Id. Despite the fact that the recording did not satisfy categorical common law rules for authentication similar to those adopted in Baca, the Washington Supreme Court held that the recording was admissible on the basis of scientific testimony and other evidence corroborating its accuracy and completeness. Id. at 429.
¶ 24 Or, take the hypothetical situation where a serial killer keeps an oral diary of his activities. After the killer‘s arrest, the police find the oral diary in his residence. No recording equipment is found in the house. A police detective who has interviewed the killer testifies that the voice on the tape is that of the defendant. As we read Baca, the diary would be inadmissible even though, under the circumstances, the recording would be highly probative and reliable evidence of the crimes.
¶ 25 Other courts, applying their versions of
¶ 26 As the Eighth Circuit has observed, [p]rivate use of recording equipment has become widespread, and therefore specific factors relating to the reliability of the recording process should be applied in a practical light to assure the reliability of the recorded material, rather than in a mechanical or wooden manner. United States v. O‘Connell, 841 F.2d 1408, 1420 (8th Cir. 1988). The same court noted that recordings discovered by the police should not be subject to the same requirements [that courts] apply when a government agent or informant initiates a conversation knowing that it is to be recorded. Id.; see also Angleton, 971 S.W.2d at 68 ([T]he government does not
¶ 27 Similarly, authoritative treatises addressing
¶ 28 The Alonzi court was legitimately concerned about falsification of electronic recordings. See Alonzi, 198 Colo. at 163-64, 597 P.2d at 562. There is no question that the alteration of electronic recordings, whether audio or video, is more of a risk today than when Alonzi was decided in 1979. See Bruce E. Koenig & Douglas S. Lacey, Forensic Authentication of Digital Audio and Video Files, in Handbook of Digital Forensics of Multimedia Data and Devices 133 (Anthony T. S. Ho & Shujun Li eds., 2015).
¶ 29 Developments in computer technology and software enable almost any owner of a personal computer with the necessary knowledge and software to falsely edit recordings. Id. But, the fact that the falsification of electronic recordings is always possible does not, in our view, justify restrictive rules of authentication that must be applied in every case when there is no colorable claim of alteration. See People v. Sangster, 8 N.E.3d 1116, 1127 (Ill. App. Ct. 2014) ([N]either at trial nor before [the appellate court] did Sangster make a colorable claim that the recording was other than authentic or accurate.).
¶ 30 Thus, the trial court must consider all relevant circumstances that bear on whether a recording is what it purports to be.7 When a plausible claim of falsification is made by a party opposing the introduction of a recording, the court may and usually should apply additional scrutiny (including, when appropriate, the Baca factors) to make the preliminary determination entrusted to the trial court: Could a reasonable jury determine that the thing offered into evidence is what it purports to be?
2. Application
¶ 31 Applying this flexible approach of
¶ 32 Accordingly, the trial court did not abuse its discretion in admitting the voicemail.
III. The Trial Court Correctly Admitted the Photograph of Gonzales‘s Tattoos
¶ 33 In his only other contention of error, Gonzales argues that the trial court abused its discretion in admitting a photograph showing Gonzales‘s tattoos because it was both irrelevant and highly prejudicial. We disagree on both fronts.
¶ 34 All relevant evidence is admissible unless prohibited by constitution, statute, or court rule.
¶ 35 The photograph at issue shows Gonzales shirtless with two tattoos on his inner forearms clearly visible. The tattoo on one arm says CHUBBY, and the tattoo on the other says CHASER. No other tattoos are visible in the photograph.
¶ 36 Evidence of a defendant‘s tattoos may be relevant to that defendant‘s intent and motive. Id. at ¶ 51. The photograph was relevant to prove Gonzales‘s motive. Gonzales said during his police interview that he was attracted to heavyset men. The photograph corroborates that statement and supports the prosecution‘s theory that Gonzales targeted the victim because his body type was consistent with Gonzales‘s preferred body type.
¶ 37 Gonzales argues that the photograph was highly prejudicial because from it the jury could have inferred that Gonzales chased chubby men with the intention of doing them harm, rather than because he was sexually attracted to them. But once relevance is established, the inferences drawn from that evidence are solely for the jury to draw, not an appellate court. See People v. Summit, 132 P.3d 320, 324 (Colo. 2006). Under
IV. Conclusion
¶ 38 The judgment of conviction is affirmed.
JUDGE TOW concurs.
JUDGE TAUBMAN specially concurs.
JUDGE TAUBMAN, specially concurring.
¶ 39 Although the majority declines to follow People v. Baca, 2015 COA 153, 378 P.3d 780, to the extent Baca purports to establish an exclusive rule for the authentication of a voice recording, I do not share that interpretation. Supra ¶ 2. As a member of the Baca division, I agreed with its analysis, and I still do. I also agree with much of the majority‘s analysis in this case and its conclusion that the microcassette recording that
¶ 40 While some language in Baca suggests that the division intended to establish an exclusive rule for the authentication of voice recordings, the Baca division acknowledged that
¶ 41 Here, in contrast, the court was concerned with the admissibility of a microcassette recording found by the victim‘s sister in the victim‘s home. In that situation, there was a reduced likelihood of improper authentication of Gonzales‘s voice.
¶ 42 Accordingly, because I agree that the results in both Baca and this case were correct, I specially concur.