v. Dominguez-Castor

     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
                                                             January 2, 2020

                                 2020COA1

No. 15CA0648, People v. Dominguez-Castor — Constitutional
Law — Fourth Amendment — Searches and Seizures —
Exclusionary Rule — Independent Source Exception


     A division of the court of appeals considers whether the

independent source doctrine applies to serial search warrants for

the same evidence. The division concludes that, even where

evidence was suppressed because it was discovered during

execution of a flawed warrant, the same evidence may be admitted

if discovered under a second warrant that was genuinely

independent of the prior illegality. The record here supports the

trial court’s findings that (1) the second warrant was not based on

facts learned in the unlawful search and (2) the officer’s decision to

seek the second warrant was not motivated by information obtained

during the unlawful search. Therefore, the division affirms the
court’s denial of the defendant’s suppression motion. The division

also rejects his other challenges to the judgment and sentence.
COLORADO COURT OF APPEALS                                         2020COA1


Court of Appeals No. 15CA0648
Jefferson County District Court No. 14CR559
Honorable Jeffrey R. Pilkington, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Dominguez-Castor,

Defendant-Appellant.


                      JUDGMENT AND SENTENCE AFFIRMED

                                  Division IV
                         Opinion by JUDGE NAVARRO
                       Hawthorne and Furman, JJ., concur

                          Announced January 2, 2020


Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    The exclusionary rule generally bars admission of evidence

 obtained in violation of the Fourth Amendment. Applying that rule,

 the trial court here suppressed evidence derived from a defective

 search warrant. The police then obtained a second warrant to

 search the same property. The court declined to suppress the

 product of the second warrant, which was the same evidence found

 under the first warrant. This case thus presents the novel question

 whether the evidence procured under the second warrant was

 admissible under the independent source exception to the

 exclusionary rule. We conclude that it was.

¶2    Because we also reject the other challenges to his convictions

 and sentence raised by the defendant, James Dominguez-Castor,

 we affirm the judgment and sentence.

                 I.   Factual and Procedural History

¶3    On March 1, 2014, Robert Phippen was found dead inside his

 home. He was seventy-nine years old. Someone had stabbed him

 approximately sixty times, strangled him, and ransacked his trailer.

 The police discovered an empty box of checks, bloody latex gloves in

 the toilet bowl, two knives in the kitchen, and a black glove under

 his body.


                                   1
¶4    Investigators suspected Dominguez-Castor and Stephvon

 Atencio. In police interviews following his arrest, Atencio

 acknowledged having a sexual relationship with the victim and

 living with him shortly before his death. Atencio implicated

 Dominguez-Castor in the crimes. The prosecution ultimately

 charged both men in the victim’s death. Atencio later agreed to

 testify against Dominguez-Castor and pleaded guilty to second

 degree murder.

¶5    At Dominguez-Castor’s trial, Atencio testified that Dominguez-

 Castor texted him the night of February 24, 2014, asking for

 marijuana. They decided to smoke it at the victim’s trailer. The

 victim allowed them in, and he joined them while they smoked and

 drank. After the victim retired for the evening, Atencio and

 Dominguez-Castor wanted more marijuana but had no money.

 Atencio proposed stealing the money from the victim.

¶6    Atencio attempted to steal the money from the victim’s pocket

 as he slept, but Atencio abandoned that plan when the victim

 moved in his sleep. Dominguez-Castor said he could get the wallet;

 then he put on gloves, grabbed a knife, and went into the bedroom.

 Atencio heard a struggle lasting several minutes. When he returned


                                   2
  to the bedroom, he saw the bloodied victim lying on the floor.

  Dominguez-Castor flushed the gloves down the toilet before stealing

  the victim’s money and checks.

¶7     The prosecution presented evidence showing that

  (1) Dominguez-Castor confessed the murder to a jailhouse

  informant and to a girl on Facebook; and (2) his DNA was on the

  latex gloves found in the toilet. Dominguez-Castor denied any

  involvement, denied being at the trailer, and denied making any

  confessions.

¶8     The jury convicted Dominguez-Castor of first degree murder

  (both after deliberation and felony murder), aggravated robbery, and

  related crimes. The trial court adjudicated him a habitual criminal

  and sentenced him accordingly.

                      II.   Serial Search Warrants

¶9     We first address, and reject, Dominguez-Castor’s contention

  that the trial court erred by denying his motion to suppress a

  Facebook message as the fruit of an unlawful search.

                      A.    Additional Background

¶ 10   Police seized two cell phones discovered during a search

  incident to Dominguez-Castor’s arrest. Following witness


                                    3
  interviews — including with Atencio and Dominguez-Castor — the

  lead detective (Detective Karen Turnbull) directed another detective

  to draft an affidavit for a warrant to search the phones. Based on

  that affidavit, a magistrate issued the warrant, and law enforcement

  officers attempted to download the phones’ contents. The

  information on one phone could not be downloaded, but the other

  phone revealed an incriminating message in which Dominguez-

  Castor appeared to confess to murder.1

¶ 11     The incriminating message was sent via a social media

  application called Facebook Messenger. Upon discovering the

  message, Detective Turnbull prepared affidavits for a search

  warrant to Facebook and for orders for production of records to

  three cell phone providers. Per department policy, she copied and

  pasted information from the first affidavit when applying for the

  new warrant and orders. The warrant and orders were issued, but

  records from Facebook and the cell phone providers did not reveal

  any new incriminating information.




  1   The message reads, “I just killed a nigga and Im running.”

                                      4
¶ 12   Dominguez-Castor moved to suppress the Facebook message

  recovered pursuant to the search warrant for the phones as well as

  evidence seized under the subsequent search warrant and orders.

  The trial court granted his motion. The court found that the

  detective who prepared the original affidavit included false

  information that a witness had identified Dominguez-Castor in a

  photo lineup. In fact, the witness had identified Atencio in one

  lineup but had failed to identify Dominguez-Castor in another.

¶ 13   The court found that the detective did not intentionally make

  false statements but made them with reckless disregard for the

  truth. After redacting the false information in all the affidavits and

  any references to the Facebook message, the court decided that the

  remaining information did not establish probable cause to search.

  The court thus suppressed the evidence seized pursuant to the

  search warrants and orders for production.

¶ 14   After the suppression ruling, Detective Turnbull drafted a new

  affidavit and applied for a second warrant to search the phones.




                                     5
  The new affidavit included much more information than the first,2

  but omitted any reference to the Facebook message or any other

  information learned during the prior searches.

¶ 15   A magistrate issued the new warrant, and law enforcement

  officers re-downloaded information from the phone — including the

  Facebook message. Dominguez-Castor again moved to suppress

  the evidence. At the second suppression hearing, Detective

  Turnbull testified that she followed the “same pattern” of the

  investigation as before. In other words, her first step was to obtain

  a warrant to download the phones. She testified that nothing found

  in the initial search of the phones was used to obtain the second

  warrant for the phones. The detective did not, however, seek new

  warrants to Facebook or the cell phone providers. She explained

  that she had been unaware that evidence seized from those entities

  had been suppressed. She also noted that “in hindsight” she knew

  those searches would reveal nothing valuable.




  2 Detective Turnbull later explained that, in the time between the
  first affidavit and the second, her department had received new
  training about search warrants for cell phones in light of the
  decision in Riley v. California, 

(2014).

                                    6
¶ 16   The trial court denied the suppression motion on the ground

  that the second warrant to search the phones satisfied the

  independent source doctrine. The court found that the new

  affidavit in support of the second warrant referenced no information

  obtained from the illegal search, Detective Turnbull’s motive to

  secure a warrant was independent of the prior unlawful search, and

  the affidavit established probable cause to search.

                        B.   Standard of Review

¶ 17   A trial court’s suppression order presents a mixed question of

  fact and law. People v. Hyde, 

, ¶ 9; People v. Cruse, 

, 1120 (Colo. App. 2002). We review the court’s findings

  of fact deferentially and accept them if they are supported by

  competent record evidence. People v. Chavez-Barragan, 

, ¶ 34. Because the ultimate conclusions of constitutional law

  are ours to draw, however, we review them de novo. 

¶ 18   Dominguez-Castor contends that the trial court erroneously

  applied the independent source doctrine to allow the prosecution to

  “circumvent” the first suppression order. He says that, when a trial

  court suppresses evidence because of a defective warrant, the


                                    7
  exclusionary rule forbids law enforcement officers from seeking a

  new warrant to search for the same evidence. He further argues

  that, “[e]ven if the independent source doctrine permitted repeat

  warrants,” the doctrine should not apply here because the

  prosecution did not establish that the second warrant was

  independent of the first. We disagree with both arguments.

           1.    May the Independent Source Doctrine Apply
                         to Serial Search Warrants?

¶ 19   The exclusionary rule is a judicially created remedy designed

  to deter unlawful police conduct by suppressing evidence obtained

  in violation of the Fourth Amendment. People v. Schoondermark,

  

, 718 (Colo. 1988). It applies both to illegally obtained

  evidence and to derivative evidence — often called “fruit of the

  poisonous tree.” 

v. United States, 

, 340-41 (1939)).

¶ 20   One exception to the exclusionary rule is the independent

  source doctrine, under which “unconstitutionally obtained evidence

  may be admitted if the prosecution can establish that it was also

  discovered by means independent of the illegality.” People v. Arapu,

  

, ¶ 32 (quoting People v. Morley, 

, 180 (Colo.



                                    8
  2000)). Among other circumstances, the doctrine may apply where

  evidence was initially discovered during an unlawful warrantless

  entry or search but later seized (or re-seized) when the police

  executed a valid search warrant. See, e.g., Murray v. United States,

  

, 540-42 (1988); Arapu, ¶ 32; 

; People v. George, 

, ¶¶ 6-9, 47-55.

¶ 21   To show that the warrant was genuinely an independent

  source of the evidence, the prosecution must prove that (1) the

  decision to seek the warrant was not prompted by what was

  observed during the initial unlawful search, and (2) no information

  obtained during the initial search was relied upon by the magistrate

  in issuing the warrant. George, ¶ 47.

¶ 22   This case raises the question whether the independent source

  doctrine can apply to evidence seized under a valid warrant issued

  after the evidence was first discovered during execution of an

  invalid warrant. No published Colorado case has answered this

  question. We conclude that the independent source doctrine may

  apply to such facts if the prosecution shows that the second

  warrant was truly independent of information obtained from the

  initial search.


                                    9
¶ 23   Driving our decision is the reason for the independent source

  doctrine. The United States Supreme Court has explained that the

  public interest “in deterring unlawful police conduct and the public

  interest in having juries receive all probative evidence of a crime are

  properly balanced by putting the police in the same, not a worse,

  position that they would have been in if no police error or misconduct

  had occurred.” 

(quoting Nix v. Williams,

  

, 443 (1984)) (emphasis added). If the challenged

  evidence has an independent source, excluding such evidence

  would put the police in a worse position than they would have been

  in absent any error or violation. 

  This rationale applies with equal force to a second warrant

  that is independent of evidence discovered under an initial defective

  warrant. Where the second warrant would have been sought and

  issued even absent the first warrant, “[i]nvoking the exclusionary

  rule would put the police (and society) not in the same position they

  would have occupied if no violation occurred, but in a worse one.”

  

¶ 25   Contrary to Dominguez-Castor’s view, permitting subsequent

  warrant applications would not eviscerate the exclusionary rule’s


                                    10
  deterrence function by encouraging reckless applications for a first

  warrant. If the initial warrant was defective, the prosecution must

  satisfy “the much more onerous burden of convincing a trial court”

  that no information gained from the illegal search affected either the

  law enforcement officers’ decision to seek a second warrant or the

  magistrate’s decision to grant it. George, ¶ 64 (quoting 

). Reasonable officers would wish to avoid this burden

  and its heightened risk that evidence crucial to their investigation

  will be suppressed. See 

  Moreover, we decline to hold that, although the independent

  source doctrine may apply to evidence initially discovered during an

  unlawful warrantless search and later seized under a valid warrant,

  the doctrine may not apply to evidence initially discovered under a

  defective warrant and later seized under a valid warrant. Such a

  rule could create unwelcome incentives for law enforcement officers

  by discouraging them from seeking a warrant before an initial

  search. Cf. People v. Marko, 

, ¶ 145 (“To comply with

  the reasonableness requirement, the United States and Colorado

  Constitutions generally require a police officer to obtain a warrant

  before conducting a search.”), aff’d, 

.


                                    11
¶ 27   Consistent with our view, courts in other jurisdictions have

  recognized that the independent source doctrine may apply to

  evidence seized under a second warrant even though the evidence

  was initially discovered under a defective warrant. See United

  States v. Terry, 

, 863-66 (C.D. Ill. 1999);

  Commonwealth v. Henderson, 

, 800-05 (Pa. 2012);3

  State v. Dasen, 

, 1285-87 (Mont. 2007); State v.

  Betancourth, 

, 572-73 (Wash. 2018). We have not

  found any contrary authority.

¶ 28   Further, we disagree with Dominguez-Castor that applying the

  independent source doctrine to the second warrant would allow the

  police to “circumvent” the first suppression order. As the trial court

  explained, “the People may seek multiple warrants for the same

  evidence,” and they can “redraft and resubmit affidavits and search

  warrants where the Court [initially] refuses to issue the warrant.”

  Hence, it is neither improper nor unusual to resubmit a warrant


  3 When considering the independent source doctrine, Pennsylvania
  courts apply the test from Murray v. United States, 

  (1988), as well as an additional “independent police team
  requirement.” Commonwealth v. Henderson, 

, 798-99,
  805 (Pa. 2012). We cite Henderson only for its application of
  Murray to serial search warrants.

                                    12
  application with an improved affidavit after a court has ruled that

  the first affidavit was insufficient to show probable cause. This

  practice does not thwart the court’s first probable cause ruling; it

  accepts and appropriately responds to that ruling.

¶ 29   Finally, we are not convinced that the analysis must differ

  where the first warrant was defective due to an officer’s recklessly

  including false information in the first affidavit. We see no reason

  why the independent source doctrine should not apply so long as

  the prosecution proves that the second warrant was genuinely

  independent of the evidence found under the first. See 

(holding that the independent source doctrine should

  apply “[s]o long as a later, lawful seizure is genuinely independent

  of an earlier, tainted one”). To conclude otherwise would put the

  police not in the same position they would have occupied if no

  violation had occurred, but in a worse one. 

¶ 30   Dominguez-Castor cites cases requiring suppression of

  evidence if the affidavit underlying the warrant does not show

  probable cause after false statements have been excised. See, e.g.,

  Franks v. Delaware, 

, 156 (1978). In that situation, it

  does not matter whether additional facts supporting probable cause


                                    13
  could have been alleged if they were not actually alleged in the

  affidavit. See State v. Thompson, 

, 817 (W. Va.

  1987). Consistent with this authority, the trial court here

  suppressed the results of the first warrant after excising the false

  statement from the first affidavit. But Dominguez-Castor cites no

  authority holding that the first suppression ruling precludes the

  police from submitting a second warrant application supported by a

  second affidavit without false statements.

¶ 31   We therefore hold that the independent source doctrine may

  apply to a search warrant sought after a court suppresses evidence

  seized under a prior warrant.

          2.   Application of the Independent Source Doctrine

¶ 32   We now consider whether the second warrant in this case was

  in fact independent of the prior unlawful search.

¶ 33   Dominguez-Castor does not challenge the trial court’s finding

  that the second warrant was supported by probable cause. And he

  concedes that the information in the second warrant application did

  not refer to evidence obtained from the unlawful search. Still, he

  maintains that the unlawful search prompted the second search.




                                    14
¶ 34   Whether the police would have pursued a second search even

  absent what they discovered during an earlier unlawful search is a

  question of fact for the trial court. 

; People

  v. Haack, 

, ¶ 17. We will not disturb the court’s finding

  if it has record support. Chavez-Barragan, ¶ 34.

¶ 35   The trial court found that “Detective Turnbull was not

  motivated by anything in the original illegal search to obtain the

  second warrant.” Ample evidence supports the court’s finding.

¶ 36   Detective Turnbull testified that she wanted to search the

  phones prior to the original search. The trial court found her

  testimony credible. Indeed, it is corroborated by the fact that the

  detective actually secured a search warrant for the phones, albeit a

  flawed one, before the first search. As the court determined, that

  the detective would have pursued a warrant even absent the

  information gained by the unlawful search was shown by the fact

  that she initially sought a warrant without such information. See

  

(discerning an independent motive where

  officers sought a warrant before unlawful discovery of evidence);

  State v. Smith, 

, 790 (N.J. 2012) (“That [the police]

  would have sought such a warrant as part of their normal


                                    15
  investigation is indicated by the fact that they did, in fact, seek

  such a warrant, even though the application itself was flawed.”).

  This sequence of events rebuts an “inference that the warrant was

  sought and granted based upon facts gathered during the illegal

  searches.” 

.

¶ 37   Also, the record reveals that, independent of the evidence

  found in the first search, the police knew facts providing probable

  cause to search (and asserted those facts in the second affidavit).

  See Arapu, ¶ 32 (concluding that, where the redacted affidavit

  contained facts — independent of an officer’s illegal observation —

  that established probable cause, the officer would have sought a

  warrant regardless of the illegal observation). Dominguez-Castor

  told the police he barely knew Atencio, whereas Atencio claimed he

  and Dominguez-Castor texted often. Determining which story was

  true — and therefore establishing the relationship between the two

  suspects — would reasonably prompt the police to search their

  phones’ activity. In fact, Dominguez-Castor invited officers to “run”

  his phone to corroborate his story about his whereabouts on the

  relevant night.




                                     16
¶ 38   Additionally, if the men texted as often as alleged, the police

  had reason to suspect from other circumstances that they may have

  discussed the robbery over the phone. They had a history of

  stealing from the victim. In fact, the victim once obtained a

  restraining order against Dominguez-Castor for stealing his checks

  and credit cards. Some witnesses told the police that they

  suspected that Dominguez-Castor and Atencio had been stealing

  from the victim near the time of his death. And, after the victim

  was killed, Dominguez-Castor attempted to cash checks stolen from

  the victim’s trailer.4 These facts gave the police probable cause to

  believe that the cell phones contained evidence of criminal activity.

  See People v. Omwanda, 

, ¶ 24.

¶ 39   Yet, Dominguez-Castor contends that the record does not

  support the trial court’s finding that the first search did not prompt

  the second warrant application. He points to Detective Turnbull’s

  response to the court’s question whether her decision to obtain the

  second warrant “was based on her desire to determine what was

  included within the cell phone.” She answered, “Technically, I knew


  4 Officers who were not involved in the first warrant application
  investigated the stolen checks.

                                    17
  what was included because I can’t unknow what was included, but

  I still wanted to have evidence that was on the phone part of the

  offense.” The fact that she already knew what was on the phone,

  however, did not preclude a finding that her desire to search the

  phone was not prompted by her knowledge of the phone’s contents.

  If she would have sought the warrant even without such knowledge,

  the independent source doctrine could apply.

¶ 40   In Murray for instance, law enforcement officers, due to an

  illegal entry, knew about the evidence located in the place they

  wanted to search before they sought a warrant. 

. Yet, the Court recognized the possibility that their decision to

  seek a warrant was not prompted by what they had seen during the

  illegal entry:

             Knowledge that the marijuana was in the
             warehouse was assuredly acquired at the time
             of the unlawful entry. But it was also acquired
             at the time of entry pursuant to the warrant,
             and if that later acquisition was not the result
             of the earlier entry there is no reason why the
             independent source doctrine should not apply.

  

Therefore, many subsequent cases recognize that the

  independent source doctrine may apply even where the police

  already know about the evidence they seek via a warrant. See, e.g.,


                                    18
  Arapu, ¶¶ 3, 32; 

, 719; George,

  ¶¶ 6-9, 65; 

.

¶ 41   For similar reasons, the fact that the same officers were

  involved in both warrants does not mean the independent source

  doctrine cannot apply. Colorado and federal cases applying the

  doctrine have not required an independence of law enforcement

  personnel. See, e.g., 

(officers

  involved in unlawful search sought a warrant); see also 

-44 (same).

¶ 42   Next, Dominguez-Castor argues that, because the decision to

  pursue a second warrant was motivated by the prior suppression

  ruling, it cannot be independent of the prior unlawful search. But,

  “[w]hile the suppression order prompted the investigator to seek a

  warrant, the objective of avoiding the consequences of that order

  does not equate to an improper motive arising from the fruits of the

  unlawful search.” George, ¶ 53. This is true because a court’s

  determination that a search was unlawful is distinct from the

  information obtained during that search. The independent source

  doctrine requires independence from only the latter. See United

  States v. Hanhardt, 

, 852 (N.D. Ill. 2001)


                                   19
  (concluding that responding to a suppression ruling “is a valid

  reason to seek a warrant, and is not based on anything learned

  from the [unlawful] search”); 

(Although

  “the invalidity of the first search necessitated a second warrant, the

  State nevertheless possessed sufficient independent information to

  ‘purge the taint’ of the first search.”).

¶ 43   Finally, Dominguez-Castor contends that Detective Turnbull’s

  decision not to renew warrant applications to the cell phone

  providers and Facebook shows that she was influenced by the

  unlawful searches. He says that, because she knew nothing

  valuable would be obtained from these entities, she chose not to

  seek permission to search their records again. But a law

  enforcement officer’s decision not to conduct a search does not raise

  Fourth Amendment concerns, regardless of its motive. The relevant

  question was whether the detective’s decision to seek the second

  warrant to search the phones was prompted by illegally obtained

  evidence. The trial court answered “no.” For the many reasons we

  have discussed, the record supports the court’s ruling.

¶ 44   Accordingly, we affirm the trial court’s order denying

  Dominguez-Castor’s suppression motion.


                                      20
               III.   Authentication of Facebook Evidence

¶ 45   Dominguez-Castor’s challenge to the Facebook messages does

  not end with the suppression issue. He acknowledges that the

  Facebook messages (including the apparent confession) were sent

  though an application on a phone found in his possession upon his

  arrest. But he argues “the record shows persons other than

  Dominguez-Castro had access to the . . . phone, thus creating

  ambiguity about authorship of the incriminating messages.” So,

  Dominguez-Castor says, the prosecution failed to authenticate the

  Facebook evidence and the evidence was inadmissible hearsay. We

  conclude, however, that the trial court did not abuse its discretion

  by ruling otherwise.

       A.    Additional Background and the Trial Court’s Ruling

¶ 46   The Facebook messages were sent to a teenage girl (G.E.) who

  testified at trial. She recalled receiving the messages and

  recognized the profile as belonging to Dominguez-Castor. Although

  she had never met him in person, she had extensive conversations

  with him through Facebook and text messages.

¶ 47   The prosecution presented an analyst to testify about the

  phone’s security measures. The phone could be accessed only after


                                    21
  entering a four-digit passcode, but the applications on the phone —

  including Facebook Messenger — could be accessed without

  entering another password. In other words, even though the

  Facebook Messenger account was password-protected, the

  application on the phone employed an auto-login feature once a

  user had accessed the phone.

¶ 48   The analyst noted that there was some evidence that

  Dominguez-Castor and Atencio had shared the phone in the past.

  The degree to which they shared the phone was unclear.

¶ 49   In addition to the foregoing testimony, the trial court pointed

  to the following circumstances:

         • The cell phone belonged to Dominguez-Castor, and he

            had it when he was arrested.

         • The Facebook account was registered in Dominguez-

            Castor’s name using his email address.

         • The messages were sent through Facebook Messenger,

            an application on the phone.

         • Although there were some calls made a few days before

            the murder to persons related to Atencio, there was no




                                    22
            evidence that Atencio used the phone between the dates

            of the murder and Dominguez-Castor’s arrest.

         • There was no evidence that Atencio knew the four-digit

            code to access the phone.

         • The web history on the phone included a search for

            banks that cash third-party checks, which was

            consistent with Dominguez-Castor’s behavior following

            the murder.

         • The Facebook messages refer to Dominguez-Castor’s plan

            to leave the state, and there was no trial evidence he told

            Atencio of his travel plans before the messages were sent.

         • Some text messages on the phone contain a signature

            (“Killshit”), and G.E. said that nickname referred to

            Dominguez-Castor.

¶ 50   Based on the above, the court found that the prosecution had

  sufficiently authenticated the Facebook messages. The court also

  ruled that the content of the messages was not hearsay under CRE

  801(d)(2) because it included Dominguez-Castor’s statements, as

  well as G.E.’s statements necessary for context.




                                   23
                              B.   Analysis

¶ 51   We review evidentiary rulings for an abuse of discretion.

  Campbell v. People, 

, ¶ 21. A trial court abuses its

  discretion when its ruling is manifestly arbitrary, unreasonable, or

  unfair. 

  The admissibility of the statements in the Facebook messages

  is governed by the rules of relevancy, authentication, and hearsay.

  People v. Huehn, 

, 736 (Colo. App. 2006). Dominguez-

  Castor challenges only the latter two requirements.

¶ 53   Authentication is a condition precedent to admissibility of

  evidence. CRE 901. The proponent bears the burden to

  authenticate evidence, and that burden is satisfied by evidence

  sufficient to support a finding that the evidence in question is what

  its proponent claims. CRE 901(a). This burden “presents a low

  bar; ‘only a prima facie showing is required.’” People v. N.T.B., 

, ¶ 16 (quoting People v. Glover, 

, ¶ 13).

¶ 54   Rule 901 does not specify the exact nature or quantity of

  evidence required. 

17. Rule 901 is a flexible standard, and

  the evidence necessary to authenticate a particular piece of

  evidence will always depend on context. 

33.


                                    24
¶ 55   When the prosecution seeks to admit a computer printout of

  social media communications of the defendant, the prosecution

  must make two showings for authentication: (1) the records were

  those of the social media platform and (2) the communications

  recorded therein were authored by the defendant. Glover, ¶ 23

  (addressing Facebook).

¶ 56   Authorship presents an unusual challenge for authenticating

  social media communications due to the “ease with which someone

  can assume the identity of another on Facebook.” People in Interest

  of A.C.E-D., 

, ¶ 46. Thus, to demonstrate authorship

  in this context, “additional corroborating evidence of authorship is

  required beyond confirmation that the social networking account is

  registered to the party purporting to create those messages.”

  Glover, ¶ 30.

¶ 57   Dominguez-Castor does not dispute that the messages here

  were communicated through Facebook. Therefore, we address only

  whether he authored the messages. See 

23.

¶ 58   The evidence tended to show that the sending Facebook

  account belonged to Dominguez-Castor. It was registered in his

  name and was created using an email associated with him. The


                                   25
  Facebook Messenger application on his phone automatically logged

  on to this profile. Conversations between Dominguez-Castor and

  G.E. often began over text and would continue on Facebook (or vice

  versa), which indicated that he used the Facebook profile. The

  record therefore supported a finding that Dominguez-Castor created

  and used the sending account.

¶ 59   As for additional corroborating evidence of authorship, the

  Facebook messages referenced Dominguez-Castor’s post-murder

  travel plans, and no evidence at trial showed that he had told

  anyone about those plans. And recall that Dominguez-Castor does

  not dispute that the incriminating message was sent via the phone

  found in his possession when he was arrested.5 Circumstantial

  evidence supported a finding that only he had access to that phone

  when the message was sent. To access the phone, a user must

  enter a four-digit passcode, which no one other than Dominguez-

  Castor knew. There was no evidence that Atencio used the phone

  after the murder, and he expressly denied doing so. Messages on


  5 The prosecution presented an activity log of the phone’s internet
  history. Facebook Messenger requires access to the internet, and
  the log shows the phone logging onto public wifi mere minutes
  before the “confession” message was sent.

                                   26
  another texting application on the phone included a nickname that

  referred to Dominguez-Castor. The phone’s internet search history

  included searches for cashing third-party checks, which was

  consistent with his later behavior.

¶ 60   In sum, the record includes evidence that the sending account

  belonged to Dominguez-Castor, messages referred to travel plans

  that only he knew, the “confession” message originated from a

  particular phone he owned, and only he had access to the phone

  when the message was sent. On this record, the trial court did not

  abuse its discretion by deciding that the prosecution made the

  prima facie showing necessary to authenticate the messages. Any

  remaining questions of authorship went to the weight of the

  evidence rather than its admissibility. N.T.B., ¶ 16; A.C.E-D., ¶ 50;

  People v. Bernard, 

, ¶ 12.

¶ 61   Lastly, because the record supports a finding that Dominguez-

  Castor authored the messages from the relevant Facebook account,

  we reject his challenge to the trial court’s ruling that the evidence

  was admissible under CRE 801(d)(2)(A) as admissions by the

  opposing party. See Glover, ¶¶ 40-41. G.E.’s statements were




                                    27
  admissible because they were not hearsay but were admitted to give

  context to Dominguez-Castor’s statements. See 

42.

                        IV.   Impeachment of Atencio

¶ 62   Dominguez-Castor argues the trial court violated his

  constitutional rights to present evidence and to confront the

  prosecution’s evidence by excluding evidence he offered to impeach

  Atencio’s credibility. We do not discern constitutional error.

         A.    Atencio’s Guilty Plea and Cooperation Agreement

                   1.     Additional Procedural History

¶ 63   Atencio originally faced charges similar to those against

  Dominguez-Castor, including first degree murder and aggravated

  robbery. A week before he testified in this case, he pleaded guilty to

  second degree murder and conspiracy to commit aggravated

  robbery. At Dominguez-Castor’s trial, the prosecutor thoroughly

  examined Atencio regarding his guilty plea. Atencio explained that

  he potentially faced life in prison for his original charges. Under the

  plea agreement, however, the prosecutor would seek no more than

  forty-eight years.

¶ 64   As part of this negotiation, but before his guilty plea, Atencio

  entered into a cooperation agreement under which he was required


                                     28
  to testify at Dominguez-Castor’s trial. If Atencio withheld

  information or otherwise did not cooperate with the prosecution, the

  prosecutor could withdraw from plea negotiations.

¶ 65   The cooperation agreement also included a “Statement of

  Understanding,” in which Atencio acknowledged that, at the time he

  agreed to testify, no plea deals had yet been made. It further

  provided that his testimony would be truthful. Defense counsel

  objected to admitting this document, on hearsay grounds, and the

  trial court sustained the objection.

¶ 66   Attached to the documents was a twenty-four-page summary

  of Atencio’s statements implicating Dominguez-Castor, which was

  consistent with Atencio’s testimony. Still, after cross-examination,

  defense counsel sought to introduce this summary to impeach

  Atencio. Counsel argued that Atencio “was tied to this version of

  the events because it’s written in his cooperation agreement.” The

  prosecutor objected on hearsay grounds, noting that the first part of

  that same document had already been excluded based on the

  defense’s objection. The court sustained the objection, ruling that

  the summary was inadmissible hearsay, that it referenced




                                    29
  inadmissible evidence, and that it should be excluded under CRE

  403 because it posed an undue risk of confusing the jury.

                              2.    Analysis

¶ 67   We review a possible Confrontation Clause violation de novo.

  Bernal v. People, 

, 198 (Colo. 2002).

¶ 68   “The Sixth Amendment right to confrontation and the Fifth

  Amendment right to due process of law require only that the

  accused be permitted to introduce all relevant and admissible

  evidence.” People v. Harris, 

, 227 (Colo. 2002); see also

  People v. Salazar, 

, ¶ 17 (same). So, the exclusion of

  irrelevant or otherwise inadmissible evidence does not deprive the

  defendant of a constitutional right. See 

; see

  also People v. Elmarr, 

, ¶ 27 (“[T]he right to present a

  defense is generally subject to, and constrained by, familiar and

  well-established limits on the admissibility of evidence.”).

¶ 69   We reject Dominguez-Castor’s constitutional claim for two

  reasons. First, he does not challenge the trial court’s ruling that

  the document he wished to admit was inadmissible hearsay. So, he

  has not demonstrated that the evidence was admissible.




                                    30
¶ 70     Second, he has not demonstrated that any evidentiary error

  rose to the level of constitutional error. A confrontation violation

  may exist where a defendant “was prohibited from engaging in

  otherwise appropriate cross-examination designed to show a

  prototypical form of bias on the part of the witness.” Kinney v.

  People, 

, 559 (Colo. 2008) (quoting Delaware v. Van

  Arsdall, 

, 680 (1986)). Defendants in previous cases

  have successfully stated a constitutional violation only where “the

  trial court’s ruling, under the circumstances of each case, effectively

  barred the defendant from meaningfully testing evidence central to

  establishing his guilt.” Krutsinger v. People, 

, 1062

  (Colo. 2009). In Van Arsdall, for instance, the Court discerned a

  confrontation violation “only because the trial court prohibited ‘all

  inquiry’ into the possibility of prosecution bias by a witness.”

  

(quoting Van 

-

  80).

¶ 71     Dominguez-Castor, however, was not prohibited from

  demonstrating that Atencio’s testimony might be influenced by his

  motive to preserve his plea deal. Atencio admitted that he would

  avoid life in prison in exchange for testifying against Dominguez-


                                    31
  Castor. The prosecutor even elicited testimony from Atencio that

  his plea deal hinged on his cooperation with the prosecution.

  Atencio’s potential bias and motivation for testifying were made

  clear to the jury.

¶ 72   Given the other evidence admitted, Dominguez-Castor has not

  persuasively shown that a “reasonable jury might have received a

  significantly different impression of [Atencio’s] credibility” if the jury

  had heard the excluded evidence — especially considering that this

  evidence matched Atencio’s testimony. 

(quoting Van 

-80). And considering

  the extensive examination regarding the plea deal, the pretrial

  statements countered no “reasonable, but false, inferences” that

  Atencio was an otherwise credible witness. Cf. Merritt v. People, 

, 168 (Colo. 1992) (witnesses with pending charges

  appeared to confess under oath). We therefore find no

  constitutional violation.

                              B.    The Ledger

¶ 73   Dominguez-Castor next contends that the trial court

  committed constitutional error by excluding a purported ledger

  listing payments the victim made to Atencio. He argues that the


                                      32
  ledger was admissible under the business records exception to

  hearsay. See CRE 803(6). We need not decide whether error

  occurred because, even if so, it did not rise to the level of

  constitutional error.

¶ 74   Dominguez-Castor contends that the ledger evidenced the

  financial relationship between Atencio and the victim, and thus

  supported the defense theory that Atencio had a motive to murder

  the victim. But that financial relationship was thoroughly

  examined at trial even without the ledger. Atencio testified that he

  would grant the victim sexual favors in return for money. He also

  detailed the maintenance work he did for the victim and the

  payment he received in return. It was also well established that

  Atencio often lived with the victim. Defense counsel pointed to

  these facts in closing.

¶ 75   Because the ledger was cumulative of other evidence,

  excluding it did not keep facts crucial to the defense from the jury

  or deprive Dominguez-Castro of any meaningful opportunity to




                                     33
  present a complete defense. See People v. Conyac, 

,

  ¶ 93. There was no constitutional error.6

              V.   Detective Turnbull’s Opinion Testimony

¶ 76   We likewise reject Dominguez-Castor’s claim that the trial

  court reversibly erred when it permitted the lead investigator to

  state her opinion that the motive for the murder was robbery.

¶ 77   The defense theorized that Atencio murdered the victim to end

  the allegedly unwanted sexual contact between the two. Over the

  prosecutor’s objection, the trial court permitted defense counsel to

  ask the detective whether a hypothetical person would feel angry

  about an unwanted sexual contact. The detective agreed that it was

  possible for a person to feel that way.

¶ 78   On redirect, the prosecutor asked, “In your assessment of the

  information in this case, is the sexual contact a motive for this

  murder?” Defense counsel objected. The court overruled the

  objection on the ground that defense counsel had “opened the door




  6 For similar reasons, we conclude that any ordinary evidentiary
  error was harmless. See Hagos v. People, 

, ¶ 12
  (nonconstitutional error is harmless unless it substantially
  influenced the verdict or affected the fairness of the trial
  proceedings).

                                    34
  in [cross]-examination as to motive in all areas.” The detective

  answered that “the motive in this case was robbery and not

  unwanted sexual contact.”

¶ 79   Dominguez-Castor contends that the court erroneously

  permitted the detective to present lay witness testimony regarding

  motive. The People counter that the court properly determined that

  defense counsel opened the door to that matter. We need not

  determine who is correct because the alleged error was harmless.

  See Hagos v. People, 

, ¶ 12 (nonconstitutional error is

  harmless unless it substantially influenced the verdict or affected

  the fairness of the trial proceedings).

¶ 80   The challenged statement was an isolated one in a lengthy

  trial. See People v. Munsey, 

, 124 (Colo. App. 2009)

  (unlikely that isolated impropriety substantially influenced the

  verdict). The prosecutor did not refer to the detective’s statement in

  closing. Cf. Wend v. People, 

, 1099 (Colo. 2010)

  (repeating improper statement in closing compounded its

  prejudicial effect). Instead, the prosecutor attempted to rebut

  Dominguez-Castor’s theory with facts that tended to show that

  Atencio had no motive to kill the victim. Specifically, the prosecutor


                                     35
  drew attention to the stability and income that the victim provided

  Atencio.

¶ 81   In addition, the jury was able to form its own opinion of

  Atencio’s feelings about his sexual contacts with the victim. On

  cross-examination, Atencio testified in detail that he “disliked” —

  but did not “hate” — the sexual contact between him and the

  victim. From that testimony, the jury had the opportunity to gauge

  Atencio’s credibility on that point. See People v. Gallegos, 

, 927 (Colo. 1982) (deciding that jury’s ability to directly assess

  witness at trial alleviated prejudicial effect of officer’s testimony

  implying that witness’s accusation was credible). In addition, the

  jury received proper credibility instructions, including an

  instruction that it was not bound to the opinions of witnesses.

¶ 82   Finally, the strength of the evidence of guilt militates against a

  finding of prejudice from the detective’s single statement.

  Substantial evidence pointed to Dominguez-Castor as the killer. He

  confessed the murder both to a Facebook friend and a jailhouse

  informant. His DNA, but not Atencio’s, was extracted from a bloody

  glove found in the trailer. And Dominguez-Castor attempted to

  cash checks taken from the victim’s trailer.


                                      36
¶ 83   In light of the strength of the evidence and the surrounding

  circumstances, we are confident that the detective’s isolated

  statement did not substantially influence the verdict or affect the

  fairness of the trial.

                  VI.   Prosecutor’s Comments in Voir Dire

¶ 84   We now turn to Dominguez-Castor’s allegation of prosecutorial

  misconduct. During voir dire of prospective jurors, the prosecutor

  attempted to explain the element of deliberation by having the

  jurors play the game of rock-paper-scissors and then discussing

  their decision-making processes. The prosecutor apparently

  intended the analogy to demonstrate that reflection and judgment

  can occur quickly. Defense counsel did not object. Although we do

  not endorse the prosecutor’s analogy, it does not require reversal.

¶ 85   Where a claim of error is not preserved by a contemporaneous

  objection, we may reverse only if plain error occurred. Hagos, ¶ 14.

  An error is plain if it is obvious, substantial, and so undermined the

  fundamental fairness of a trial as to cast serious doubt on the

  reliability of the conviction. Liggett v. People, 

, 733

  (Colo. 2006).




                                     37
¶ 86   Plain error review for prosecutorial misconduct requires us to

  examine the totality of the circumstances, with particular attention

  to the exact language used, the nature of the misconduct, the

  surrounding context, and the strength of the other evidence of guilt.

  

; Domingo-Gomez v. People, 

,

  1053 (Colo. 2005). Prosecutorial misconduct is plain error only if it

  is “flagrantly, glaringly, or tremendously improper.” Domingo-

  

(citation omitted).

¶ 87   Along with first degree felony murder, Dominguez-Castor was

  charged with first degree murder “[a]fter deliberation.” § 18-3-

  102(1)(a), C.R.S. 2019. “The term ‘after deliberation’ means not

  only intentionally but also that the decision to commit the act has

  been made after the exercise of reflection and judgment concerning

  the act. An act committed after deliberation is never one which has

  been committed in a hasty or impulsive manner.” § 18-3-101(3),

  C.R.S. 2019.

¶ 88   Using an analogy to explain the concept of deliberation can be

  problematic, especially where it might trivialize the reflection and

  judgment necessary to commit first degree murder. See People v.

  McBride, 

, 224-25 (Colo. App. 2009); People v.


                                    38
  Cevallos-Acosta, 

, 123 (Colo. App. 2005). Even so,

  Dominguez-Castor has not shown that the analogy used here was

  so prejudicial as to require reversal. See People v. Boykins, 

, 95 (Colo. App. 2005) (“In review for plain error, the

  defendant has the burden of persuasion with respect to prejudice.”).

¶ 89   Preceding the analogy was the prosecutor’s lengthy discussion

  stressing the statutory requirements of reflection and judgment.

  When the prosecutor presented the rock-paper-scissors analogy,

  one prospective juror pushed back, citing the serious charges. At

  the end of that discussion, the prosecutor clarified that the analogy

  was intended merely to demonstrate that thought processes can

  occur quickly. The prosecutor then returned to the concept of

  reflection and judgment according to the statute.

¶ 90   Considering the entire context, the record reveals that the

  prospective jurors were adequately informed of the distinction

  between a rash decision and a choice made after reflection. Indeed,

  some prospective jurors drew that distinction expressly.

¶ 91   Moreover, the prosecutor mentioned the analogy only during

  voir dire. Rather than repeat it in closing, the prosecutor read the

  statute and walked through the elements. People v. Van Meter,


                                    39
  

, ¶ 33 (finding no plain error where analogy was not

  repeated after voir dire); cf. 

(finding that

  repeating the analogy in closing amplified prejudice). In addition,

  the trial court instructed the jury on the proper definition of

  deliberation. People v. Carter, 

-2, ¶¶ 59-61 (holding

  that instructions can cure prejudice from isolated and improper

  analogy). Absent a contrary showing, we presume that the jury

  followed that instruction. 

.

¶ 92   Finally, the strength of the evidence of deliberation weighs

  against a finding of plain error. The jury heard evidence that

  Dominguez-Castor and Atencio discussed robbing the victim. When

  Atencio was unsuccessful, Dominguez-Castor put on latex gloves,

  grabbed a knife, and went to the bedroom. The ensuing struggle

  lasted for several minutes, and the victim was ultimately stabbed

  more than sixty times. From these circumstances, the jury had

  ample evidence to conclude that the decision to kill was not made

  hastily or impulsively.

¶ 93   Given these circumstances and the strength of the evidence,

  we cannot say that the prosecutor’s isolated use of the analogy was




                                    40
  so prejudicial as to cast serious doubt on the reliability of the

  conviction. See 

.7

                          VII. Denial of Mistrial

¶ 94   We also reject Dominguez-Castor’s view that the trial court

  erred by denying his motion for a mistrial after a juror fainted while

  viewing autopsy photos of the victim.

¶ 95   A mistrial is a drastic remedy warranted only where “the

  prejudice to the accused is too substantial to be remedied by other

  means.” People v. Collins, 

, 303 (Colo. 1986). We

  review a trial court’s denial of a mistrial for an abuse of discretion.

  People v. Pernell, 

, ¶ 24, aff’d, 

.

¶ 96   Dominguez-Castor’s mistrial motion was not prompted by

  improper evidence or conduct but by a juror’s reaction to

  admissible evidence: autopsy photos tending to show the victim’s

  cause of death and the killer’s culpable mental state. See, e.g.,




  7We also note that the remedy for the alleged error would simply be
  a remand for the trial court to enter a conviction for first degree
  murder-felony murder, rather than first degree murder-after
  deliberation. Neither the felony level of Dominguez-Castor’s offense
  nor his sentence would change.


                                     41
  People v. Ruibal, 

, ¶¶ 47-49 (admitting autopsy photos

  for such purposes), aff’d, 

.8

¶ 97   The court carefully managed the fainting incident. It

  canvassed the jury and determined — on an individual basis —

  whether each juror could continue to be fair and impartial after the

  fainting episode. Van Meter, ¶ 15 (canvassing the jury is a means to

  cure prejudice without declaring a mistrial). The court determined

  that the jury, including the juror who fainted, would not base its

  decision on any sympathy toward the victim or prejudice against

  Dominguez-Castor. Because the record provides support for the

  court’s decision, we do not discern an abuse of discretion. See

  People v. Tillery, 

, 43 (Colo. App. 2009) (trial court is

  best positioned to evaluate the impact of trial events on the jury),

  aff’d sub nom. People v. Simon, 

(Colo. 2011).

          VIII. Constitutionality of Habitual Criminal Statutes

¶ 98   Finally, Dominguez-Castor contends for the first time on

  appeal that Colorado’s habitual criminal statutes are




  8 The trial court had excluded, under CRE 403, four of the fourteen
  tendered autopsy photographs. A juror fainted while viewing a
  photo the court found highly probative and helpful to the jury.

                                     42
  unconstitutional on their face and as applied to him because they

  authorize a judge, rather than a jury, to make the factual findings

  necessary for a habitual criminal adjudication. He says this

  procedure violates the rule of Apprendi v. New Jersey, 

  (2000). We think his claim is foreclosed by our supreme court’s

  precedent recognizing the continued vitality of Apprendi’s prior

  conviction exception. See, e.g., Lopez v. People, 

, 723

  (Colo. 2005). In any event, the alleged error was not obvious under

  plain error analysis given the many cases rejecting this claim. See

  People v. Poindexter, 

, ¶¶ 72-73 (collecting cases).

                            IX.   Conclusion

¶ 99   The judgment of conviction and sentence are affirmed.

       JUDGE HAWTHORNE and JUDGE FURMAN concur.




                                   43