Paso County District Court No. 11CR2128. Honorable William B.
H. Coffman, Attorney General, Nicole D. Wiggins, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Audrey E. Bianco,
Deputy State Public Defender, Denver, Colorado, for
and Richman, JJ., concur.
[¶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
[¶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.
The Voice Identification Procedure Was Proper
[¶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
[¶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.
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).
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.
[¶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" ).
[¶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
[¶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 --