People v. Hamilton

          Rehearing Denied August 15, 2019

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          City and County of Denver District Court No. 13CR3362, Honorable Michael J. Vallejos, Judge

          Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

         OPINION

          LIPINSKY, JUDGE.

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         [¶ 1] Defendant, Rayon D. Hamilton, appeals his conviction for sexual assault. J.F., the victim, accused Hamilton of drugging her at a bar, separating her from her friends, taking her to an apartment without her consent while she was unconscious, and sexually assaulting her.

         [¶ 2] Hamilton contends that the district court erred by (1) admitting hearsay to establish that neither Hamilton’s phone nor the victim’s phone contained text messages about which Hamilton had testified; (2) admitting evidence of two other instances in which Hamilton had been accused of sexual assault; (3) adding qualifying "factually innocent" language to the acquittal instruction; and (4) adding a reference to a prior conviction in the instruction advising the jury that Hamilton had been acquitted of a prior sexual assault charge.

         [¶ 3] We agree with his first contention, reverse on that basis, and remand for a new trial. We also agree that the district court erred in adding a reference to Hamilton’s prior conviction to the acquittal instruction. We reject his remaining contentions.

          I. Background

         [¶ 4] While at bars with friends, J.F. ran into Hamilton, whom she had met through an ex-boyfriend. Hamilton bought a round of shots for J.F. and her friends. J.F. testified she thought her "drink had drugs in it" because she could not remember much after she had "taken the shot." J.F. told the jury the next thing she remembered was waking up on her stomach in an apartment, with her hands being held above her head, and Hamilton was having sex with her.

         [¶ 5] J.F. testified that she did not agree to have sexual intercourse with Hamilton. According to her testimony at trial, she kept saying "no" and tried to wiggle away from him.

         [¶ 6] Hamilton admitted to having sexual intercourse with J.F. but claimed it had been consensual. He testified that J.F. had been awake throughout the encounter.

         [¶ 7] The district court instructed the jury on one count of second degree kidnapping, two counts of sexual assault, and one count of distribution of a controlled substance. Hamilton was convicted on one of the sexual assault counts and the distribution count and was acquitted on the remaining counts.

          II. Admissibility of Detective Slay’s Testimony Concerning the Phone Reports

         [¶ 8] Hamilton told the investigating detective, Bryan Slay, that J.F. had sent him multiple texts while they were drinking together at the bars. He claimed that J.F. had also sent him texts the day after the alleged sexual assault. Hamilton gave similar testimony at trial.

         [¶ 9] Detective Slay testified that police department personnel downloaded the contents of Hamilton’s and J.F.’s phones and generated reports (the Reports) reflecting the phones’ contents. At trial, the prosecutor did not seek to introduce the Reports into evidence or call as witnesses the police department employees who had examined the phones or generated the Reports. Instead, Detective Slay testified that, based on his review of the Reports, neither phone contained text messages from J.F. to Hamilton.

         [¶ 10] Hamilton contends that Detective Slay’s testimony about the contents of the Reports was hearsay, the admission of which violated CRE 803(7) and 803(10) and his rights under the Confrontation Clauses of the United States and Colorado Constitutions. He argues that Detective Slay’s testimony unfairly prejudiced him because it contradicted his own testimony that J.F. had texted him both the night of the alleged sexual assault and the next morning.

         [¶ 11] Analysis of the admissibility of Detective Slay’s testimony concerning the Reports requires us to determine whether the Reports were inadmissible hearsay, whether

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Detective Slay’s testimony constituted a second layer of inadmissible hearsay, and whether the prosecutor established the reliability and authenticity of the Reports.

          A. The Hearsay Issues

          1. Standard of Review

         [¶ 12] We review a trial court’s evidentiary rulings for an abuse of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). However, a trial court’s decision on whether a statement constitutes hearsay is a legal conclusion, which we review de novo. People v. Medina, 25 P.3d 1216, 1223 (Colo. 2001); see also Dutch v. United States, 997 A.2d 685, 689 (D.C. 2010) (concluding that the determination of whether a statement falls under an exception to the hearsay rule is a legal conclusion).

         [¶ 13] The harmless error standard applies to review of trial errors of nonconstitutional dimension preserved by objection. Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. Such an error is harmless where "there is no reasonable possibility that it contributed to the defendant’s conviction." Pernell v. People, 2018 CO 13, ¶ 22, 411 P.3d 669, 673; People v. Cohen, 2019 COA 38, ¶ 11, 440 P.3d 1256. Under this standard, reversal is required only if the error "substantially influenced the verdict or affected the fairness of the trial proceedings." Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986).

         [¶ 14] We review unpreserved trial errors for plain error. Hagos, ¶ 14, 288 P.3d at 120. "Plain error is obvious and substantial." Id. We reverse under plain error if the error "so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction." Id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

          2. Preservation of Hamilton’s Arguments Regarding Detective Slay’s Testimony

         [¶ 15] The defense did not object to the prosecutor’s two questions to Detective Slay regarding the contents of Hamilton’s phone. Hamilton, however, directs us to two other places in the record where he asserts he preserved this issue.

         [¶ 16] First, during Detective Slay’s cross-examination, defense counsel asked, "Detective, he just asked you a question about texts on [J.F.’s] phone" and "[w]ere you testifying by your personal knowledge or some report that was given to you that you read?" After Detective Slay responded that his testimony was based on "[a] report from that phone being downloaded," defense counsel "move[d] to strike that testimony as the foundation is hearsay." Defense counsel argued that the prosecutor could have "[laid] the foundation to admit the text messages from [J.F.’s] phone, but they chose not to. Now they are trying to ... admit hearsay statements from the detective about a report that he read." But defense counsel’s objection concerned Detective Slay’s testimony regarding the contents of J.F.’s phone and not the contents of Hamilton’s phone.

         [¶ 17] Second, Hamilton asserts that his counsel preserved his argument regarding the contents of his phone during a bench conference addressing a juror’s proposed questions to Detective Slay: "Were there texts on [J.F.’s] phone to [Hamilton]? ... Does the phone company have no record of the texts? Did you investigate with [Hamilton’s] and [J.F.’s] phone companies?" Defense counsel objected to the questions, stating, "[w]ere there texts on [J.F.’s] phone to [Hamilton]? I object. That’s the same objection I made the last time." Like the earlier objection, this objection addressed evidence of the contents of J.F.’s phone.

         [¶ 18] We therefore conclude that Hamilton did not preserve his argument that the district court erred in admitting Detective Slay’s testimony regarding the contents of Hamilton’s phone, but preserved his argument that the court erred in allowing Detective Slay to testify regarding the contents of J.F.’s phone.

          3. The Reports Were Hearsay

          a. The Prosecutor Introduced the Content of the Reports into Evidence to Prove the Truth of the Matter Asserted

         [¶ 19] Hearsay is "a statement other than one made by the declarant while testifying at

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the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). Hearsay is inadmissible except as provided by the Colorado Rules of Evidence or other applicable statutes or rules. CRE 802; People v. Buckner, 228 P.3d 245, 249 (Colo.App.Div. 1 2009).

         [¶ 20] A declarant is "a person who makes a statement." CRE 801(b). A "statement" is either "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him to be communicative." CRE 801(a).

         [¶ 21] During rebuttal, the prosecutor introduced the content of the Reports through Detective Slay’s testimony. He testified that he had "the tech guys work on [the phone]," and that he was able to view "the report that [he] had the technical people run." Detective Slay then said that, based on his review of the Reports, Hamilton’s and J.F.’s phones did not contain any texts between Hamilton and J.F.

         [¶ 22] We disagree with the People’s argument that the prosecutor did not introduce the content of the Reports into evidence for the truth of the matter asserted. In characterizing the content of the Reports, Detective Slay was not merely providing a "personal observation about the existence of any text messages" or explaining "what actions the detective took as part of his investigation." The prosecutor went far beyond merely asking Detective Slay whether he had obtained Hamilton’s and J.F.’s phones and whether the police had analyzed them.

         [¶ 23] Rather, his testimony focused on the key content of the Reports — their alleged assertion that the phones did not contain the text messages from J.F. to Hamilton about which Hamilton had testified. The prosecutor specifically asked Detective Slay whether the Reports showed that J.F. had texted Hamilton on the relevant days. This question elicited testimony regarding the truth of the matters asserted in the Reports.

          b. The Prosecutor Did Not Establish that the Reports Were Machine-Generated Without Human Input or Interpretation

         [¶ 24] Even if the prosecutor introduced the Reports into evidence to prove the truth of their contents, the Reports would not be hearsay if a machine generated them automatically. Such records are not hearsay because no "person" or "declarant" made a communicative "statement" within the meaning of CRE 801. Buckner, 228 P.3d at 250. As a division of this court noted in Buckner, this reasoning is in accord with decisions from other jurisdictions applying substantially similar hearsay rules. Id. (citing United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005)); see United States v. Washington, 498 F.3d 225, 231 (4th Cir. 2007) (concluding that only a person can make a statement and nothing "said" by a machine is hearsay); Hamilton, 413 F.3d at 1142-43 (holding information automatically generated by a computer was not hearsay because there was no "declarant" or "statement" involved); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (deciding that an automatically generated time stamp was not hearsay because it was not uttered by a person). See generally People v. Marciano, 2014 COA 92M-2, ¶ 28, 411 P.3d 831, 838 (in deciding cases involving the Colorado Rules of Evidence, we consider instructive cases from other jurisdictions interpreting analogous rules).

         [¶ 25] The Reports were machine-generated because

• the operator made no statements of any kind;

• the operator did not say or write the information the machine generated;

• the operator simply operated the machine;

• the machine used a common scientific and technological process;

• the conclusion of the machine-generated report was drawn solely from the machine’s data; and

• the source of the data was independent of human observation or reporting.

See Washington, 498 F.3d at 230; Adam Wolfson, Note, "Electronic Fingerprints": Doing Away with the Conception of Computer-Generated Records as Hearsay, 104 Mich. L.Rev. 151, 159 (2005) ("[H]uman interaction often triggers the computer processes that create the records; however, the crucial factor

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is whether the record is a mark of computer activity or if it is the electronically-saved statements of a human user.").

         [¶ 26] A computer-generated record constitutes hearsay, however, when its creation involves human input or interpretation. See United States v. Cestnik, 36 F.3d 904, 907 (10th Cir. 1994) (concluding that money transfer records constituted hearsay because an employee created them by entering information into the computer); see also Baker v. State, 223 Md.App. 750, 117 A.3d 676, 683 (2015) (concluding that call records not generated solely by the internal operations of the computer, but that likely involved a human’s data entry, constituted hearsay); cf. Cranston v. State, 936 N.E.2d 342, 344 (Ind.Ct.App. 2010) (concluding that evidence tickets produced by a chemical breath test machine are not hearsay because they do not involve any material human intervention). For these reasons, we hold that the district court erred in determining that the Reports were not hearsay.

          4. Detective Slay’s Testimony Was Also Hearsay

         [¶ 27] We next consider whether Detective Slay’s testimony regarding the Reports was itself hearsay. Hearsay included within hearsay is inadmissible unless each part of the combined statements conforms with an exception to the hearsay rule. CRE 805. "Where a statement contains multiple layers of potential hearsay, the court must analyze each layer separately to determine whether it falls within a ...