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People v. Ortega

Court of Appeals of Colorado, Third Division

April 9, 2015

The People of the State of Colorado, Plaintiff-Appellee,
Ramon Anthony Ortega, Defendant-Appellant

          El Paso County District Court No. 11CR2128. Honorable William B. Bain, Judge.

         Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Douglas K. Wilson, Colorado State Public Defender, Audrey E. Bianco, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

         Dailey and Richman, JJ., concur.


         WEBB, JUDGE.

          [¶1] Everyone agrees that the Fifth Amendment prohibits compelling a defendant's testimony, but does not preclude evidence of the defendant's physical characteristics. Still, where a trial court orders a defendant to speak solely for voice identification by the jury, does the procedure involve improper testimonial or proper physical evidence? And even if the identification involves only physical evidence, is the procedure impermissibly suggestive because the jury hears only the defendant's voice? These questions are unresolved in Colorado.

          [¶2] A jury convicted Ramon Anthony Ortega of distributing less than five pounds of marijuana. He appeals on two grounds. First, by forcing him to provide a live voice exemplar to the jury, the trial court violated his constitutional rights against self-incrimination and to due process, and also admitted unfairly prejudicial evidence contrary to CRE 403. Second, by playing to the jury's concern about crime in the community during closing argument, the prosecutor committed misconduct. Because we conclude that the voice identification procedure was proper and the prosecutor's comments were harmless error, we affirm.

         I. The Voice Identification Procedure Was Proper

         A. Background

          [¶3] This case began at a public park, where an undercover police officer, who was wearing a wire, bought marijuana from a man. After the officer asked whether anyone sold cocaine at the park, the man replied: " Actually, they were here earlier but they were drunk." The officer then met with a detective, who had observed the transaction and recorded their conversation from her undercover car nearby, and described the man. The detective believed that the man was Ortega and produced Ortega's photograph. The officer agreed that the person in the photograph matched the seller.

          [¶4] Weeks later, Ortega was arrested. He did not testify but defended on the basis of misidentification and offered alibi evidence.

          [¶5] At trial, the prosecutor moved to have Ortega read either a " generic" statement or a statement that was audible from the detective's recording of the drug buy -- portions of which were garbled -- to " allow the jury the opportunity to match up the defendant's way of speaking with the person speaking on that recording." Defense counsel objected, arguing that the statement was " communicative in nature," " tantamount to a one-on-one show up identification," and " far outweighed by any probative value [sic]." The court overruled the objection, concluding that the statement was not " forced incrimination in violation of the Fifth Amendment," and the " unfair danger of unfair prejudice [wa]s minimal." It did not address the one-on-one confrontation issue.

          [¶6] Even so, the court offered to " explain [to the jury that it was] ordering Mr. Ortega to say th[e] sentence." But because defense counsel did not want to " draw[] undue attention to an implication that he d[id] not want to do it or he [wa]s fighting against doing it," the court agreed to only ask the People if they had any other witnesses. At the end of the prosecution's case, Ortega stayed at defense counsel's table and read the statement, " Actually, they were here earlier but they were drunk." Earlier, the entire recording had been played for the jury.

         B. Preservation and Standard of Review

          [¶7] Ortega preserved this issue by arguing that the procedure violated the right against self-incrimination, the right to due process, and CRE 403. Although the Attorney General argues that defense counsel did not preserve the due process argument, we conclude that her comparison " to a one-on-one show up identification" sufficiently " alert[ed] the trial court to the particular issue." People v. Cordova, 293 P.3d 114, 120 (Colo.App. 2011).

          [¶8] We " defer to the trial court's findings of historical fact," People v. Rabes, 258 P.3d 937, 940 (Colo.App. 2010), but review de novo Ortega's contention that the court " violated his privilege against self-incrimination," People v. McBride, 228 P.3d 216, 227 (Colo.App. 2009). Relying on People v. Davis, 312 P.3d 193, 201 (Colo.App. 2010), aff'd, 310 P.3d 58, 2013 CO 57, the Attorney General urges us to review the Fifth Amendment claim for an abuse of discretion. But because Davis, id. at 198, involved a prosecutor's references during cross-examination and closing arguments to defendant's post-arrest silence, we are not persuaded to depart from the general rule that " where constitutional rights are concerned," law application " is a matter for de novo appellate review," People v. Matheny, 46 P.3d 453, 462 (Colo. 2002). This is especially so where, as here, the facts are undisputed. People v. Valdez, 969 P.2d 208, 211 (Colo. 1998) (" When the controlling facts are undisputed, the legal effect of those facts constitutes a question of law which is subject to de novo review." ).

          [¶9] Also, we defer to the trial court's factual findings but review de novo whether the court violated Ortega's right to due process by allowing an impermissibly suggestive identification procedure. See United States v. Thompson, 524 F.3d 1126, 1135 (10th Cir. 2008) (" We review de novo the constitutionality of identification procedures, but we review for clear error the factual basis for the district court's decision." (internal quotation marks omitted)); cf. Bernal v. People, 44 P.3d 184, 190 (Colo. 2002) (reviewing the " constitutionality of pretrial identification procedures" as a mixed question of law and fact).

          [¶10] In contrast, " [a]bsent an abuse of discretion, the trial court's [CRE 403] ruling will not be disturbed on appeal." People v. Rubanowitz, 688 P.2d 231, 245-46 (Colo. 1984). Thus, " we will not overturn its ruling unless it is manifestly arbitrary, unreasonable, or unfair." People v. Melillo, 25 P.3d 769, 774 (Colo. 2001).

         C. Right Against Self-Incrimination

          [¶11] Ortega first contends the trial court violated his Fifth Amendment right against self-incrimination when it required him to read the excerpt from the transcript of the drug buy. We reject this contention.

         1. Law

          [¶12] " The privilege against self-incrimination protects the accused only from providing the state with evidence of a testimonial nature." People v. Renfrow, 193 Colo. 131, 135, 564 P.2d 411, 414 (1977). But while " the privilege is a bar against compelling 'communications' or 'testimony,'" it provides no protection when the accused is " the source of real or physical evidence." Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see Sandoval v. People, 172 Colo. 383, 388, 473 P.2d 722, 724 (1970) (no protection against " a compulsion to exhibit physical characteristics" ).

         2. Application

          [¶13] To begin, Colorado cases cited by the parties as being controlling do not involve the precise question presented in this appeal -- whether the voice exemplar provided by Ortega was testimonial or physical evidence.

          [¶14] Based on Serratore v. People, 178 Colo. 341, 497 P.2d 1018 (1972), disapproved of by People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980), Ortega argues that even if the voice exemplar was physical evidence, a trial court cannot force a defendant to perform any act at odds with his defense solely for the jury's benefit. In Serratore, the prosecutor required the defendant to reach above a line that the prosecutor had placed on a wall in the courtroom. Id. at 345-46, 497 P.2d at 1021. This demonstration showed that because the defendant was short, his explanation for his fingerprint atop a cabinet was physically impossible unless he had entered through a window above the cabinet -- the prosecutor's burglary theory. Id.

          [¶15] The supreme court concluded that because the defendant " was being asked to participate in a contrived experiment or demonstration concerning his physical abilities to perform a particular act," with the purpose " to [c]ommunicate to the jury the defendant's physical abilities to perform an act that the prosecution believed him unable to perform," the demonstration violated his right against self-incrimination. Id. at 347, 497 P.2d at 1022. But unlike in Serratore -- where the procedure forced the defendant to demonstrate that his theory was implausible -- the ...

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