County District Court No. 11CR3036 Honorable Christopher J.
Cynthia H. Coffman, Attorney General, Brian M. Lanni,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Stephen C.
Arvin, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Raymond Lee Ortega, appeals his conviction for
aggravated robbery, as well as his adjudication as a habitual
offender. We affirm.
2 Two men, one wearing a stocking over his head and one
unmasked, held up a fast-food restaurant. The unmasked man
pointed a handgun at the employee behind the register and
demanded money. He then shot the employee in the arm as the
employee fled. When the two men were unable to open the
register, they carried it off.
3 From the restaurant's surveillance video, the police
identified the unmasked man as David Maestas. The police also
found a car belonging to Maestas's wife, which they
believed had been used during the robbery.
4 A search of the car turned up, among other things, a cell
phone and a pair of jeans consistent with those worn by the
masked man in the surveillance video. Analysis showed that
defendant's DNA was on the waistband and in the pockets
of the jeans. The cell phone belonged to Maestas's wife,
but she testified that Maestas also used the phone and had
taken it from her a couple of weeks before the robbery. Phone
records showed several calls in the days around the robbery
from this cell phone to a number identified in the
phone's contact list as "Ray's mom."
5 A jury convicted defendant of aggravated robbery. After a
separate trial, the court adjudicated defendant a habitual
6 Defendant appeals both his conviction for aggravated
robbery and his adjudication as a habitual offender. He
contends that (1) his right to confrontation under both the
United States and Colorado Constitutions was violated by
admission of the cell phone records and the custodian's
certification; (2) he was denied a fair trial because the
prosecutor misstated the DNA evidence; and (3) during his
habitual trial, his right to confrontation under the state
constitution was violated by admission of sentencing and
Defendant's Confrontation Right Pertaining to Phone
7 Defendant contends that the admission of phone records
violated his right to confrontation under both the United
States and Colorado Constitutions. We disagree.
Admission of Phone Records
8 The investigating detective testified that he requested
from the phone company, Cricket, records pertaining to the
phone number attached to the cell phone found in the car. The
detective testified that he received a CD from Neustar, Inc.
(Neustar), the company that kept Cricket's records, with
a declaration from the custodian of records attached. The
detective testified, based on the records, that there had
been a number of calls from the cell phone to a certain
number three days before the robbery, as well as on the days
before and after the robbery. The detective testified that
the receiving number was labeled in the cell phone's
address book as "Ray's mom, " and that when he
called the number, the recorded message reported, in a female
voice, that he had reached the Ortegas.
Federal Confrontation Clause
9 Under the United States Constitution, a criminal defendant
"shall enjoy the right . . . to be confronted with the
witnesses against him." U.S. Const. amend. VI. In 2004,
the Supreme Court explained that when a declarant does not
testify at trial, testimonial statements are admissible
"only where the declarant is unavailable, and only where
the defendant has had a prior opportunity to
cross-examine." Crawford v. Washington, 541
U.S. 36, 59 (2004). The Supreme Court later held that, under
the Crawford formulation, nontestimonial
hearsay does not implicate the Federal Confrontation Clause.
See Michigan v. Bryant, 562 U.S. 344, 354-59, 378
(2011); People v. Phillips, 2012 COA 176, ¶ 75.
10 "Testimony" is "[a] solemn declaration or
affirmation made for the purpose of establishing or proving
some fact." Crawford, 541 U.S. at 51
(alteration in original) (quoting 2 N. Webster, An American
Dictionary of the English Language (1828)). "Testimonial
ex parte in-court testimony or its functional
equivalent - that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially; extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; statements that
were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310
(2009) (alteration in original) (quoting Crawford,
541 U.S. at 51-52). More concisely, where "a statement
is not procured with a primary purpose of creating an
out-of-court substitute for trial testimony, " the
Confrontation Clause is not implicated. Bryant, 562
U.S. at 358-59.
11 According to defendant, the trial court erred by admitting
the phone records in violation of his federal right to
confrontation. He argues that (1) the phone records were
testimonial and (2) the declaration of the custodian for the
phone records was testimonial. We disagree with both
arguments, concluding instead that the trial court correctly
determined that the phone records and attestation were not
testimonial and thus not subject to the Confrontation Clause.
12 In United States v. Yeley-Davis, 632 F.3d 673
(10th Cir. 2011), the Tenth Circuit considered and rejected
similar arguments that both cell phone records (admitted
pursuant to the business records hearsay exception) and a
certification by the custodian of records were testimonial.
The Tenth Circuit concluded that the phone records were not
testimonial because they were kept in the course of the phone
company's regularly conducted business, rather than
created simply for litigation. Id. at 679. As to the
custodian's certification of the phone records, the Tenth
Circuit acknowledged that the custodian "objectively
could have foreseen that the certification and affidavit
might be used in the investigation or prosecution of a
crime." Id. at 680. Nonetheless, that court
held that certificates of authenticity, the purpose of which
is merely to authenticate the phone records and not to
establish or prove some fact at trial, are not testimonial.
13 We are persuaded by the reasoning in Yeley-Davis
and apply it in this case. Here, according to the declaration
from the custodian of records, the records of ...