OPENING BRIEF OF DEFENDANT-APPELLANT

Transcription

1 COURT OF APPEALS, STATE OF COLORADO DATE FILED: December 27, :08 PM Ralph L. Carr Judicial Center 2 East 14 th Avenue Denver, Colorado Appeal; Adams District Court; Honorable Robert W. Kiesnowski; and Case Number 14CR2063 Plaintiff-Appellee THE PEOPLE OF THE STATE OF COLORADO v. Defendant-Appellant KENT CHARLES SMITH Douglas K. Wilson, Colorado State Public Defender INGA K. NELSON 1300 Broadway, Suite 300 Denver, Colorado Case Number: 15CA1236 Phone: (303) Fax: (303) PDApp.Service@coloradodefenders.us Atty. Reg. #47620 OPENING BRIEF OF DEFENDANT-APPELLANT

2 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: This brief complies with the applicable word limit set forth in C.A.R. 28(g). It contains 9,424 words. This brief complies with the standard of review requirement set forth in C.A.R. 28(a)(7)(A). For each issue raised by the Defendant-Appellant, the brief contains under a separate heading before the discussion of the issue, a concise statement: (1) of the applicable standard of appellate review with citation to authority; and (2) whether the issue was preserved, and, if preserved, the precise location in the record where the issue was raised and where the court ruled, not to an entire document. I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 and C.A.R. 32. i

3 TABLE OF CONTENTS STATEMENT OF THE ISSUES PRESENTED... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 5 I. THE TRIAL COURT ERRONEOUSLY ADMITTED A SECRETLY-RECORDED PHONE CONVERSATION, AN OPEN-LINE 911 CALL, AND JAIL CALLS BETWEEN MR. AND MRS. SMITH A. Standard of Review and Governing Law... 5 B. Relevant Facts and Argument... 7 Page 1. The court erroneously admitted the video-taped phone call because it was insufficiently authenticated, was unnoticed 404(b) evidence, and Mrs. Smith s statements were inadmissible hearsay in violation of the Colorado Rules of Evidence and Mr. Smith s state and federal confrontation rights a. The court erred in admitting the recorded phone call without sufficient authentication b. The court erred in admitting the recorded call because it was unnoticed 404(b) evidence and the court failed to apply the required standard to determine its admissibility c. The court erred in admitting the recorded phone call because Mrs. Smith s statements were inadmissible hearsay d. The admission of the call violated Mr. Smith s confrontation rights because Mrs. Smith s statements were testimonial and she did not testify e. Even if Mrs. Smith s statements were not testimonial, the admission of the recorded call violated Mr. Smith s state confrontation rights because the statements do not bear particularized guarantees of trustworthiness ii

4 II. f. The erroneous admission of the recorded phone call requires reversal The court erred in admitting the 911 call because it was insufficiently authenticated and Mrs. Smith s statements constituted inadmissible testimonial hearsay in violation of the Colorado Rules of Evidence and Mr. Smith s confrontation rights a. The court erred in admitting the 911 call because it was insufficiently authenticated and the inaudible portion rendered it untrustworthy b. The court erred in admitting the 911 call on the basis that Mrs. Smith s utterances were mostly questions that could not be hearsay or present a confrontation problem c. Under either approach, Mrs. Smith s utterances constituted inadmissible hearsay d. The admission of the 911 call violated Mr. Smith s confrontation rights because Mrs. Smith s statements were testimonial and she did not testify e. Under any standard, the erroneous admission of the 911 call requires reversal The trial court erroneously admitted portions of jail calls between Mr. and Mrs. Smith referring to her statement to police; these statements improperly commented on her invocation of spousal privilege and invited the jury to speculate about evidence that was not presented a. The admission of the jail calls violated Mr. Smith s right to a fair trial because they improperly highlighted Mrs. Smith s invocation of spousal privilege and invited the jury to speculate on her unadmitted statements regarding Mr. Smith s guilt THERE WAS INSUFFICIENT EVIDENCE TO PROVE MR. SMITH COMMITTED BURGLARY AND ARSON BECAUSE THERE WAS NO EVIDENCE CORROBRATING HIS UNTRUSTWORTHY AND UNRELIABLE CONFESSION A. Standard of Review B. Argument CONCLUSION iii

5 CERTIFICATE OF SERVICE TABLE OF CASES Alonzi v. People, 597 P.2d 560 (Colo. 1979)... 10,11,23,24 Bloom v. People, 185 P.3d 797 (Colo. 2008)... 6,18,28 Brown v. Com., 487 S.E.2d 248 (Va. Ct. App. 1997) Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995) Clark v. People, 232 P.3d 1287 (Colo. 2010)... 35,36 Com. v. Parker, 104 A.3d 17 (Pa. Super. Ct. 2014) Compan v. People, 121 P.3d 876 (Colo. 2005) Crawford v. Washington, 541 U.S. 36 (2004)... 6,15,16,28 Davis v. Washington, 547 U.S. 813 (2006)... 15,16,28 Golob v. People, 180 P.3d 1006 (Colo. 2008) Harris v. Com., 384 S.W.3d 117 (Ky. 2012) In re A.M., 251 P.3d 1119 (Colo.App. 2010) In re Winship, 397 U.S. 358 (1970)... 36,42 Kaufman v. People, 202 P.3d 542 (Colo. 2009)... 13,20 Ohio v. Clark, 135 S. Ct (2015)... 15,28 Payne v. Tennessee, 501 U.S. 808 (1991)... 6,18,28 People v. Baca, 2015 COA ,10,11,23,24 People v. Baker, 178 P.3d 1225 (Colo. App. 2007)... 35,42 People v. Delsordo, 2014 COA People v. Dikeman, 555 P.2d 519 (Colo. 1976) People v. Franklin, 782 P.2d 1202 (Colo.App. 1989) People v. Garcia, 113 P.3d 775 (Colo. 2005) People v. Garner, 806 P.2d 366 (Colo. 1991) People v. Glover, 2015 COA iv

6 People v. Gonzales, 666 P.2d 123 (Colo. 1983) People v. Hagos, 250 P.3d 596 (Colo.App. 2009)... 16,17 People v. Harris, 762 P.2d 651 (Colo. 1988)... 32,33 People v. Hassen, 2013 COA ,14 People v. Isom, 140 P.3d 100 (Colo.App. 2005) People v. LaRosa, 293 P.3d 567 (Colo. 2013) ,39-42 People v. McFee, 2016 COA ,16,28 People v. Odneal, 559 P.2d 230 (Colo. 1977)... 24,40 People v. Pollard, 2013 COA 31M... 24,28,29 People v. Quintana, 882 P.2d 1366 (Colo. 1994) People v. Spoto, 795 P.2d 1314 (Colo. 1990)... 12,13 People v. Suazo, 87 P.3d 124 (Colo.App. 2003)... 17,20,28,29,34 People v. Vecellio, 292 P.3d 1004 (Colo. App. 2012)... 6 People v. Vigil, 127 P.3d 916 (Colo. 2006) People v. Welsh, 80 P.3d 296 (Colo. 2003)... 6,32,34 People v. Welsh, 58 P.3d 1065 (Colo.App. 2002) People v. Zubiate, 2013 COA Powell v. State, 714 N.E.2d 624 (Ind. 1999) Raile v. People, 148 P.3d 126 (Colo. 2006)... 6,15,16,18,20,28,29 State v. Kutz, 671 N.W.2d 660 (Wis. Ct. App. 2003) State v. Saunders, 491 N.E.2d 313 (Ohio Ct. App. 1984) Stoddard v. State, 887 A.2d 564 (Md. 2005) United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972) United States v. Jackson, 88 F.3d 845 (10th Cir. 1996)... 25,27 United States v. Lentz, 282 F. Supp. 2d 399 (E.D. Va. 2002) v

7 United States v. McHorse, 179 F.3d 889 (10th Cir. 1999)... 6 United States v. Vega, 188 F.3d 1150 (9th Cir. 1999) United States v. Young, 488 F.2d 1211 (8th Cir. 1973) Yusem v. People, 210 P.3d 458 (Colo. 2009) TABLE OF STATUTES AND RULES Colorado Revised Statutes Section , C.R.S Section , C.R.S Colorado Rules of Evidence Rule 104(b)... 9,12 Rule ,31,32,33,35 Rule 404(b)... 7,8,11,12,13,19 Rule ,27 Rule 801(a)... 14,25 Rule 801(c)... 14,25 Rule ,27 Rule 901(a)... 9,10,23,24 Federal Rules of Evidence Rule 801(a) CONSTITUTIONAL AUTHORITIES United States Constitution Amendment V Amendment VI... 6,15,28 Amendment XIV... 6,15,18,28,32,33,35,35 Colorado Constitution Article II, Section ,15,16,28 Article II, Section ,15,16,18,28,32,33,35,36 OTHER AUTHORITIES MCCORMICK ON EVIDENCE, Vol. 2, (Kenneth S. Broun et al. eds., 6th ed. 2006) Section vi

8 STATEMENT OF THE ISSUES PRESENTED 1. Whether the trial court erroneously admitted recorded conversations between Mr. Smith and his wife. 2. Whether there was insufficient evidence to convict Mr. Smith of burglary and arson because there was insufficient evidence to corroborate his statements. STATEMENT OF THE CASE The prosecution charged Kent Smith with one count of first-degree arson and one count of second-degree burglary of a dwelling, both class-three felonies. R.CF,p.3-4. A jury found Mr. Smith guilty as tried. R.CF,p ;R.Tr.(4/3/15),p The trial court sentenced Mr. Smith to ten years in the Department of Corrections on each count, concurrent. R.CF,p.181;R.Tr.(6/3/15),p STATEMENT OF THE FACTS On March 12, 2014, an abandoned house at 1161 Daikin Street in Adams County caught fire and was seriously damaged. R.Tr.(4/1/15),p.53, The house belonged to Ms. Marie Judish who left it in March 2013 due to medical issues. R.Tr.(4/1/15),p Before the fire, local police were concerned the abandoned house would be targeted for vagrancy. R.Tr.(4/1/15),p.74. In November 2013, Detective Hall 1

9 contacted Ms. Judish because the front door was unlocked and open. R.Tr.(4/1/15),p.56,58-59,63,71-72,77. Ms. Judish said she did not know what to do with it and would just as soon let it go and call it a wash. R.Tr.(4/1/15),p.74-75,77. In January 2014, Detective Hall informed Ms. Judish the house was still unlocked; she then locked the front door but was unsure whether the other doors were locked or closed. R.Tr.(4/1/15),p.58-59,63,71-72,77. The expert fire investigator testified there was no evidence of potential evidence of arson, he was unable to determine whether the fire was intentionally started, and unable to identify how it started. R.Tr.(4/2/15),p.46-47, There were no common arson indicators, such as accelerants. R.Tr.(4/2/15),p The fire expert testified that it was a fire hazard house because it was a hoarder's house and there could have been any number of reasons that this fire started. R.Tr.(4/2/15),p.67, The gas and electricity were still on. R.Tr.(4/1/15),p.58;(4/2/15),p.64. The bedrooms were filled with bags of trash and clothing ranging from four to seven feet high. R.Tr.(4/1/15),p.57-58;(4/2/15),p.38-39, The living room had two to three feet of debris... on the floor. R.Tr.(4/2/15),p.38-39,66-67;(4/1/15),p The front door in the living room could not be opened when the fire department arrived because it was blocked by the piled up trash. R.Tr.(4/2/15),p

10 The most the expert fire investigator could determine was that the fire likely started in the kitchen. R.Tr.(4/2/15),p.55-56,58-59,60-61,68, He could not identify the source or origin of the fire, but ruled out numerous potential causes. R.Tr.(4/2/15),p.58-63,68-69,72, The kitchen stove was electric and the top of the stove was ruled out as an ignition source, but the oven could neither be ruled out nor identified as the source of the fire. R.Tr.(4/2/15),p.55,61-63,64, Based on the lack of evidence of arson, the fire investigator did no further investigation. R.Tr.(4/2/15),p.69-70, After the police identified Mr. Smith as a suspect, they did not do any follow-up investigation inside the house or find evidence placing Mr. Smith at or near the house on the day of the fire. R.Tr(4/2/15),p.31,35,36, Kent Smith became a suspect after his estranged wife, Christi Smith, contacted the police. R.CF,p Before trial, Mrs. Smith provided the police and the prosecution with statements, a copy of a recorded phone conversation between herself and Mr. Smith, and called 911 and left the phone line open during a conversation with Mr. Smith in order to elicit a confession from him. R.Tr.(11/14/14),p.11;(2/20/15),p.26-29,32-34;(3/6/15),p.6;R.CF,p.9-12;R.Ex.1,2. However, before trial, she invoked her spousal privilege not to testify against Mr. Smith. R.Tr.(3/30/15),p.2-6. Despite this, the recorded conversations between the 3

11 couple were admitted at trial. R.Ex.1,2,3. On the recorded phone conversation between the couple, which occurred at an unknown time before the fire, Mrs. Smith says she knows Mr. Smith is inside 1161 Daikin. R.Ex.2,0:06-0:26. Mr. Smith confirms this and tells her he is warming himself up using the stove. R.Ex.2,0:27-0:56. During the open-line 911 call, a heavily intoxicated Mr. Smith tells Mrs. Smith he burned the house to the ground on purpose because he was raped inside of it. R.Ex.1,2:22-3:02;R.Ex.2(Motions Hearing),15:50-16:15. Mr. Smith told police that at some point, his father lived next door to 1161 Daikin Street but he had not been in that neighborhood or inside the house recently. R.Tr.(4/1/15),p.55. The recorded conversations between Mr. and Mrs. Smith were the only evidence at trial establishing that the fire was not an accident and connecting Mr. Smith to the alleged arson. The prosecution s theory was that Mr. Smith was guilty of arson and burglary because his conversations with Mrs. Smith constituted admissions of guilt. R.Tr.(4/3/15),p.20-23,25,26. The defense theory was that the recordings were unreliable because they were made in the midst of marital strife, at least one involved a very intoxicated Mr. Smith, and there was no evidence to corroborate the statements made in these conversations. R.Tr.(4/3/15),p

12 SUMMARY OF THE ARGUMENT The only evidence that a crime occurred and that Mr. Smith was responsible for it came from recorded conversations between him and his wife. Through these unreliable and uncorroborated recordings, Mrs. Smith appeared at trial as Mr. Smith s primary accuser, despite the fact that she did not testify after she invoked her spousal privilege, without Mr. Smith having any opportunity to cross-examine her. The admission of these recordings violated numerous Colorado Rules of Evidence, Mr. Smith s right to confront his accuser, constituted an impermissible comment on Mrs. Smith s invocation of spousal privilege, and deprived Mr. Smith of a fair trial. As a result, his convictions should be reversed. Because the only evidence connecting Mr. Smith to the fire at 1161 Daikin came from his drunken, emotional, uncorroborated, and unreliable statements, there was insufficient evidence to convict him of arson and burglary and his convictions must be vacated. ARGUMENT I. THE TRIAL COURT ERRONEOUSLY ADMITTED A SECRETLY- RECORDED PHONE CONVERSATION, AN OPEN-LINE 911 CALL, AND JAIL CALLS BETWEEN MR. AND MRS. SMITH. A. Standard of Review and Governing Law Admission of unduly prejudicial evidence violates a defendant s due process right to a fair trial where it renders the trial fundamentally unfair. 5

13 U.S.CONST.amend.XIV;COLO.CONST.art.II, 25; Payne v. Tennessee, 501 U.S. 808, 825 (1991); Bloom v. People, 185 P.3d 797, (Colo. 2008). A defendant has a constitutional right to confront the witnesses against him. U.S.CONST.amends.VI, XIV; COLO.CONST.art.II, 16,25; Crawford v. Washington, 541 U.S. 36, 42 (2004); Raile v. People, 148 P.3d 126 (Colo. 2006). Whether the admission of evidence violates due process or confrontation rights is reviewed de novo. Bloom, 185 P.3d 805-6; United States v. McHorse, 179 F.3d 889, 896 (10th Cir. 1999). Short of a constitutional violation, a court s decision to admit evidence is reviewed for an abuse of discretion. People v. Vecellio, 292 P.3d 1004, 1016 (Colo. App. 2012). It is an abuse of discretion for a court to admit evidence in violation of the Colorado Rules of Evidence, fail to apply the correct legal standard, or fail to consider the criteria upon which it must base its discretion. People v. Hassen, 2013 COA 16, 19; People v. Welsh, 80 P.3d 296, (Colo. 2003). Defense counsel objected to the challenged recordings on the grounds presented on appeal, with one exception, which is noted below. See R.Tr.(4/1/15),p.7-10,12-14,16-18,21-26,28-29,29-30;(4/2/15),p.4-6,8,9-10,15-18,100,108;(2/20/15),p.3,4,25,29,48-49;(11/14/14),p.6;R.CF,p.32-33,

14 B. Relevant Facts and Argument The prosecution introduced three recorded conversations between Mr. and Mrs. Smith: (1) a video of a phone call; (2) a recording of an open-line 911 call; and, (3) portions of jail calls. 1. The court erroneously admitted the video-taped phone call because it was insufficiently authenticated, was unnoticed 404(b) evidence, and Mrs. Smith s statements were inadmissible hearsay in violation of the Colorado Rules of Evidence and Mr. Smith s state and federal confrontation rights. At some unknown date and time, Mrs. Smith recorded a call from her cell phone to Kent using unknown equipment. R.Tr.(4/1/15),p.29;R.Ex.2. On it, Mr. Smith states: You don t even know where I am. R.Ex.2,0:02-0:06. Mrs. Smith responds: The corner house next to where your dad used to live, the corner house next to 1141 Daikin. Yeah you are. Yeah. I know. You re on the side of the house next to where your bedroom was on that side of the house. R.Ex.2,0:06-0:26. Mr. Smith says: Yup. And I lay here at night in the kitchen with the stove on because check this out, this bitch has the water turned off, the heat turned off, everything turned off, with the electric. And I m running the furnace on full blast, lying in the kitchen trying to stay warm. R.Ex.2,0:27-0: There are no transcripts of the recordings in the record. Counsel has transcribed the cited portions as accurately as possible. 7

15 On October 3, 2014, defense counsel filed a motion requesting thirty-days notice of intent to introduce 404(b) evidence and a hearing to determine the admissibility of any such evidence. R.CF,p At a motions hearing in November, the prosecution stated they did not intend to offer 404(b) evidence; as a result, the court held there was no need to address counsel s motion. R.Tr.(11/14/14),p.6. The morning of the first day of trial, counsel objected to the phone call as unnoticed 404(b) evidence and because Mrs. Smith s statement regarding Mr. Smith s location was testimonial hearsay. R.Tr.(4/1/15),p The court deferred ruling. R.Tr.(4/1/15),p When discussed later, counsel reiterated her objections based on relevance, hearsay, confrontation, and unnoticed 404(b) evidence grounds. R.Tr.(4/2/15),p.8. The court rejected the 404(b) objection on the grounds that the tape was placed in discovery on February 24 and counsel had not previously raised a 404(b) objection and therefore could not now complain the call was 404(b) evidence. R.Tr.(4/2/15),p The prosecution stated this would be evidence of what we need to prove that he was in that home when this arson occurred and they believed it was res gestae or evidence of the specific elements of this offense. R.Tr.(4/2/15),p.10. The prosecution also argued Mrs. Smith s statement about Mr. Smith s location was not presented for the truth of the matter but for context and therefore, even if it is 8

16 testimonial, it did not raise confrontation concerns. R.Tr.(4/2/15),p The Court found Mrs. Smith s statements were not offered for the truth and there was no confrontation problem. R.Tr.(4/2/15),p The prosecution introduced the call through its investigator, Mr. Lindberg. R.Tr.(4/2/15),p.9-10,95,97. Mr. Lindberg testified that he spoke with Mrs. Smith on numerous occasions, was familiar with her voice, she gave him the video, he recognized her voice on it, and recognized Mr. Smith s voice from jail calls and Mr. Smith s police interview. R.Tr.(4/2/15),p He also testified he had no personal knowledge of when the recording was made and could not say it was unaltered or whether portions were added or deleted before it was given to him. R.Tr.(4/2/15),p Based on this, counsel objected on foundation and relevance grounds; the court overruled with no explanation. R.Tr.(4/2/15),p.100. After the recording was admitted and published to the jury, Mr. Lindberg testified that the burned house was on the corner of Daikin Street. R.Tr.(4/2/15),p.101. He again testified there was no date or time stamp on the video and he had no personal knowledge of when it occurred. R.Tr.(4/2/15),p.102. a. The court erred in admitting the recorded phone call without sufficient authentication. Authentication of evidence is a condition precedent to its admissibility. CRE 901(a); CRE 104(b); People v. Baca, 2015 COA 153, 26 (investigator was neither a 9

17 party to nor present during the call, did not create the recording, and therefore could not provide the proper foundation). To lay the proper foundation... the proponent must demonstrate that the recording is an accurate reproduction of the call that occurred. Baca, 2015 COA at 26; CRE 901(a). The Colorado Supreme Court has utilized the traditional standard for authentication which requires the party seeking to introduce a recording to verify both that the content accurately reflects the conversation as well as to verify the process by which it was recorded. See Alonzi v. People, 597 P.2d 560, 562 (Colo. 1979). [T]his requires the prosecution to go forward with both the testimony of a witness who was a party to or who listened in on the recorded conversation as well as with evidence of the competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in the relevant portions of the recording, and the identification of the relevant speakers. Id.; Baca, 2015 COA at 27. Some courts have allowed for admission of a recorded call when the proponent presents a witness who can vouch either for the accuracy of the content of the call or, if no such witness is available, for the reliability of the recording process. Baca, 2015 COA at 28,30 (applying that relaxed standard); see also MCCORMICK ON EVIDENCE, Vol. 2, 216, (Kenneth S. Broun et al. eds., 6th ed. 2006). 10

18 Under either standard, the prosecution s investigator could not and did not lay a sufficient foundation for the phone call. Alonzi, 597 P.2d at 562; Baca, 2015 COA at 28,30. The investigator was unable to provide a date and time when this conversation took place. R.Tr.(4/2/15),p ,102. He was not a percipient witness, did not supply the recording equipment, could not testify regarding the recording method, and had no personal knowledge of whether the recording had been altered, portions deleted, or portions added. R.Tr.(4/2/15),p ,102. Therefore, he could testify to neither the accuracy of the content of the recording nor the reliability of the recording process. Alonzi, 597 P.2d at 562; Baca, 2015 COA at 28,30. The most the investigator could do was identify the voices on the recording and state that he received the recording from Mrs. Smith. R.Tr.(4/2/15),p This was insufficient to lay foundation for its admissibility. Alonzi, 597 P.2d at 562; Baca, 2015 COA at 28,30. As a result, under any standard, the court erred when it admitted it over defense counsel s objection. R.Tr.(4/2/15),p.100; Alonzi, 597 P.2d at 562; Baca, 2015 COA at 28,30. b. The court erred in admitting the recorded call because it was unnoticed 404(b) evidence and the court failed to apply the required standard to determine its admissibility. Colorado Rule of Evidence 404(b) prohibits the admission of [e]vidence of other crimes, wrongs, or acts... to prove the character of a person in order to show 11

19 that he acted in conformity therewith, but it may be admissible for other purposes. Rule 404(b) is primarily a rule of exclusion of evidence and not one of admission, because admission of prior act evidence implicates fundamental fairness and justice of the trial itself. United States v. Burkhart, 458 F.2d 201, 204 (10th Cir. 1972); see also, People v. Delsordo, 2014 COA 174, 8. As a result, [t]o be admissible, the prosecution must give notice to the defendant, must articulate a precise evidential hypothesis by which a material fact can be permissibly inferred from the prior act independent of the use forbidden by CRE 404(b), and the court must apply the Garner/Spoto test. People v. Spoto, 795 P.2d 1314, (Colo. 1990); People v. Garner, 806 P.2d 366, 373 (Colo. 1991); CRE 104(a);CRE 404(b). The recording here was evidence that Mr. Smith had on a separate occasion from the charged conduct, entered and stayed in 1161 Daikin, which, as counsel argued below, constitutes 404(b) evidence of another alleged criminal act: trespass. R.Ex.2;R.Tr.(4/2/15),p.8;(4/1/15),p.29; People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994). As a result, she argued we would have to go through a Spoto analysis and notice was never given of 404(b) evidence. R.Tr.(4/1/15),p.29;(4/2/15),p.8. The trial court erred when it rejected the 404(b) objection on the grounds that the recording was placed in discovery and suggested that counsel had the burden to 12

20 raise the 404(b) issue at that point. R.Tr.(4/2/15),p If the defendant requests notice, the prosecution bears the burden of providing notice of intent to introduce 404(b) evidence and articulating a permissible use for the evidence. CRE 404(b); Spoto, 795 P.2d at 1319; Yusem v. People, 210 P.3d 458, 464 (Colo. 2009). Merely providing a defendant with the evidence in discovery does not accomplish this, especially here, where the prosecution informed the court and the defense they did not intend to introduce 404(b) evidence. R.Tr.(11/14/14),p.6; Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) ( We cannot conclude that the mere opening of its [prosecution s] file [in discovery] containing an offense report detailing extraneous evidence satisfies the requirement of giving notice of intent to introduce such evidence. ). Failure to provide notice or obtain an excuse from the district court, renders the other acts evidence inadmissible, therefore, the court erred in admitting the evidence despite the prosecution s failure to provide notice and articulate a permissible basis under 404(b). United States v. Vega, 188 F.3d 1150, 1153 (9th Cir. 1999). Even if the prosecution s failure to provide notice was excusable, the court abused its discretion by admitting the evidence without applying the Garner/Spoto test, as requested by counsel in the pretrial motion and at trial. Kaufman v. People, 202 P.3d 13

21 542, (Colo. 2009); Hassen, 2013 COA at 19; R.CF,p.32-33;R.Tr.(4/1/15),p.29-30;(4/2/15),p.8. c. The court erred in admitting the recorded phone call because Mrs. Smith s statements were inadmissible hearsay. Hearsay includes an oral or written assertion other than one made by the declarant while testifying... offered in evidence to prove the truth of the matter asserted. CRE 801(a),(c). Unless an exception applies, hearsay is inadmissible. CRE 802; Golob v. People, 180 P.3d 1006, 1010 (Colo. 2008). On the call, Mrs. Smith told Mr. Smith she knew he was at the corner house next to where your dad used to live, the corner house next to 1141 Daikin. R.Ex.2,0:06-0:26. The court agreed with the prosecution s assertion this was not offered for the truth of the matter, but to provide context to Mr. Smith s statements. R.Tr.(4/2/15),p The court instructed the jury that Mrs. Smith s statements were not offered for the truth of the matter asserted and could only be considered to provide context to Mr. Smith s statements. R.CF,p.160. Mrs. Smith s statements went beyond providing context; the relevancy of her statement that she knew Mr. Smith was inside 1161 Daikin and Mr. Smith s response to that statement depended on her assertion being true. See People v. Zubiate, 2013 COA 69, 16 (Rejecting claim that statement was offered for context only because, [h]ere, the statement was only relevant if it was offered for the truth of the matter 14

22 asserted. ). Further, the prosecution used the statement as evidence that Mr. Smith was recently inside of 1161 Daikin. R.Tr.(4/3/15),p d. The admission of the call violated Mr. Smith s confrontation rights because Mrs. Smith s statements were testimonial and she did not testify. The right of a defendant to confront the witnesses against him means that testimonial statements must be excluded when the declarant is unavailable and there has been no prior opportunity for cross-examination by the defendant. Raile, 148 P.3d at 130 (citing Crawford, 541 U.S. 36, 42; People v. Vigil, 127 P.3d 916, 921 (Colo. 2006)); U.S.CONST.amends.VI,XIV; COLO.CONST.art.II, 16,25; Davis v. Washington, 547 U.S. 813 (2006). A statement is testimonial if, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to creat[e] an outof-court substitute for trial testimony. Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015); see also Raile, 148 P.3d at 130; People v. McFee, 2016 COA 97, 35. Here, the circumstances surrounding Mrs. Smith s statement objectively indicate the primary purpose of Mrs. Smith s recording of her conversation with Mr. Smith was to establish facts that might be relevant to a later criminal prosecution. The purpose of her statement was not to prevent a crime or seek emergency assistance, she surreptitiously videotaped this conversation, she later contacted the police to offer Mr. Smith as a suspect in the fire, provided this recording to someone principally charged with uncovering and prosecuting criminal behavior, and facilitated another 15

23 recorded conversation with Mr. Smith, which the trial court noted was without question, to preserve that for subsequent prosecution. See McFee, 2016 COA at 41; R.Ex.1,2;R.Tr.(4/2/15),p.6,9-10,95,97;R.CF,p These circumstances show Mrs. Smith intended her statement that she knew Mr. Smith was inside the corner house next to where your dad used to live, the corner house next to 1141 Daikin, to aid in the prosecution of Mr. Smith and serve as a substitute for live testimony at trial. See Davis, 547 U.S. at 828; McFee, 2016 COA at 38; R.Ex.2,0:06-0:26. Because Mrs. Smith was unavailable at trial and Mr. Smith had no prior opportunity for crossexamination, the admission of the call violated Mr. Smith s confrontation rights. Davis, 547 U.S. at 830; Crawford, 541 U.S. at 68; Raile, 148 P.3d at 133; McFee, 2016 COA at 47. e. Even if Mrs. Smith s statements were not testimonial, the admission of the recorded call violated Mr. Smith s state confrontation rights because the statements do not bear particularized guarantees of trustworthiness. Under the Colorado constitution, nontestimonial statements where the defendant had no prior opportunity to cross-examine the declarant are only admissible if the witness is unavailable and the statement bears sufficient indicia of reliability. COLO.CONST.art.II, 16,25; Compan v. People, 121 P.3d 876, (Colo. 2005). A statement is sufficiently reliable if it is accompanied by particularized guarantees of trustworthiness. People v. Hagos, 250 P.3d 596, 624 (Colo.App. 2009). 16

24 To make that determination, courts look to the totality of the circumstances surrounding the making of the statement. Id. Relevant factors include where and when the statement was made, to whom the statement was made, what prompted the statement, how the statement was made, and what the statement contained, the nature and character of the statement, the relationship between the parties to the statement, the declarant's probable motivations for making the statement, [and] the circumstances under which the statement was made. Id. Here, Mrs. Smith s statement was made during a secretly recorded call between herself and her husband, during a period of marital strife where they were separated, which she turned over to the prosecution, which was made under unknown circumstances utilizing unknown equipment, and the recording of which may have been altered or edited. R.Tr.(4/2/15),p.9-10,95,97,99-102;R.Ex.2;R.Ex.2(Motions Hearing),5:07-5:17,6:08-6:12,3:40-3:46,6:40-7:29,11:40-11:55,14:10-14:30. As a result, her statement does not bear particularized guarantees of trustworthiness and its admission violated Mr. Smith s state confrontation rights. Hagos, 250 P.3d at 624. f. The erroneous admission of the recorded phone call requires reversal. The erroneous admission of the recorded phone call deprived Mr. Smith of a fair trial and was neither harmless nor harmless beyond a reasonable doubt. People v. Suazo, 87 P.3d 124, 127 (Colo.App. 2003) (when erroneously admitted evidence is 17

25 central to the prosecution s case and the prosecution relies on it in closing argument, its admission is not harmless); Raile, 148 P.3d at 134 (factors to consider in whether error was harmless beyond a reasonable doubt include the importance of the witness' testimony to the prosecution's case, whether the testimony was cumulative, the presence or absence of corroborating or contradictory evidence on the material points of the witness' testimony, the extent of the cross-examination otherwise permitted, and the overall strength of the prosecution's case. );U.S.CONST.amend.XIV;COLO.CONST.art.II, 25; Payne, 501 U.S. at 825; Bloom, 185 P.3d at The recorded phone call provided the only evidence that Mr. Smith had recently been inside 1161 Daikin, which the prosecution noted was key to their case. R.Tr.(4/1/15),p.54-55,56;(4/2/15),p.10. There was no corroborating evidence that Mr. Smith had been inside 1161 Daikin, since the police did not gather fingerprint or DNA evidence. R.Tr(4/2/15),p.31,35,36, The police did not gather phone or cell tower records to confirm this call occurred between Mr. and Mrs. Smith on a particular date or that Mr. Smith s phone was near the house at the time of the call or the fire. R.Tr(4/2/15),p.35,36, There was no opportunity to cross-examine Mrs. Smith regarding her statements, the call, or the reliability of the recording process. Additionally, Mr. Smith s statements on the call that the house s water [was] turned 18

26 off, the heat turned off, everything turned off, with the electric, were not only not corroborated, but were contradicted by the fire expert s testimony that [t]he gas was still turned on and it still had electrical power to the home and Ms. Judish s testimony that the electricity was on. R.Ex.2,0:27-0:56;R.Tr.(4/1/15),p.58;(4/2/15),p.64. The prosecution relied heavily on this recording in closing as evidence that Mr. Smith committed both offenses, first to argue that he started the fire using the stove: By Kent Smith's own admissions.... He was in Marie Judish's house. He was using the stove to heat the house, to heat the kitchen.... He knew that this house was going to burn. R.Tr.(4/3/15),p.20,22. Second, to argue it was evidence he had knowingly been in the house unlawfully: As it relates to burglary.... Think back to the recording where he is asking, You don't even know where I am. And Christi Smith responds, Yes, I do. You're in the house on the corner next to where you used to live. And Kent Smith responds, Yep. " R.Tr.(4/3/15),p In rebuttal, the prosecution argued this recording was the key evidence tying together its case. R.Tr.(4/3/15),p.38. Finally, the jury asked to listen to it during deliberations. R.Tr.(4/3/15),p Further, the harm was compounded by the fact the prosecution did not articulate a permissible use for the call under 404(b), the court did not admit the 19

27 evidence for such a limited purpose, and the jury could therefore consider the evidence for any purpose. See Kaufman, 202 P.3d at 561. Because this call was central to the prosecution s case and relied upon heavily during closing and rebuttal closing, its erroneous admission on any of the above grounds was neither harmless nor harmless beyond a reasonable doubt and requires reversal of both of Mr. Smith s convictions. Raile, 148 P.3d at 134; Suazo, 87 P.3d at The court erred in admitting the 911 call because it was insufficiently authenticated and Mrs. Smith s statements constituted inadmissible testimonial hearsay in violation of the Colorado Rules of Evidence and Mr. Smith s confrontation rights. On April 16, 2014, Mr. and Mrs. Smith met for lunch. R.Tr.(4/2/15),p16;R.Ex.1;Ex.2(Motions Hearing). At some point during the meeting, Mrs. Smith surreptitiously called 911 on her phone and left the line open. R.Tr.(4/1/15),p.16,22;R.Ex.1;Ex.2(Motions Hearing). The prosecution introduced a six-minute portion of that call. R.Ex.1;R.Ex.2(Motions Hearing). As the trial court noted, a very drunk Mr. Smith is emotionally distraught on the call. R.Tr.(2/20/15),p.5;R.Ex.1;R.Ex.2(Motions Hearing). Mrs. Smith asks Mr. Smith numerous questions regarding a fire at Maria s house and he responds with several emotional incriminating statements that he burned it down to the fucking ground on purpose because I was raped there. R.Ex.1,2:22-3:02;R.Ex.2(Motions 20

28 Hearing),15:50-16:15. Mrs. Smith indicates she knows this and that the rape happened when Mr. Smith was five. R.Ex.1,1:47-2:21,R.Ex.2(Motions Hearing),15:20-15:27. While the majority of the conversation is audible, there is roughly one minute during the conversation about the house that is inaudible. R.Ex.1,4:10-5:23;R.Ex.2(Motions Hearing),18:02-18:55. Defense counsel argued the recording violated Mr. Smith s right to confrontation and constituted inadmissible hearsay. R.Tr.(4/1/15),p Counsel argued that Mrs. Smith s purpose of eliciting a confession for the police rendered the entire call testimonial, and the identification of their location, the parties to the call, and the content she provides throughout the call was akin to her making a statement or testifying for the purpose of future prosecution. R.Tr.(4/1/15),p The prosecution argued Mrs. Smith s statements during the call were not offered for the truth of the matter. R.Tr.(4/1/15),p.23-24,26. The court held the purpose of the call was without question, to preserve that for subsequent prosecution. R.Tr.(4/2/15),p.6. However, the court held that Mrs. Smith s utterances were mostly questions and it did not believe [ ] interrogatories constitute any form of hearsay that will run afoul of the confrontation clause, therefore the bulk of the call was admissible. R.Tr.(4/1/15),p.26-27;(4/2/15),p.6-7. The court did hold that Mrs. Smith s statements directly to 911 at the end of the 21

29 recording ( I m at Great Scott s... Kent Smith there s an active warrant out of Adams County and you have the confession on the arson. Now. Now. Leaving the line open ) were testimonial and should not come in. R.Tr.(4/1/15),p.27-28;(4/2/15),p.4-7;R.Ex.1,5:51-6:16. Counsel reiterated her argument that the entire call was testimonial; however, based on the court s decision the call was admissible, she did not want to exclude Mrs. Smith s final statements to 911 because they provided an explanation for the circumstances under which Mr. Smith confessed. R.Tr.(4/1/15),p.28-29;(4/2/15),p.4-6. At trial, over objection, the 911 call was admitted through the 911 administrator. R.Tr.(4/2/15),p The non-redacted twenty-minute version of the call provides more context for the conditions under which it was made. R.Ex.2(Motions Hearing). During the first fifteen minutes of the call the couple argued about Mr. Smith s drug and alcohol use, alleged drug dealing, their separation, and Mr. Smith s girlfriend. R.Ex.2(Motions Hearing). Mrs. Smith makes numerous statements reflecting her state of mind and attitude toward Mr. Smith, including calling him a son of a bitch, saying he was not the man I married, referencing his girlfriend and accusing him of using this 22-year old girl who you ve gotten pregnant, and saying the reason you left home is because you couldn t drink and drug at home. R.Ex.2(Motions Hearing),5:07-5:17,6:08-6:12,3:40-3:46,6:40-7:29,14:10-14:30. A heavily intoxicated Mr. Smith makes 22

30 numerous uncorroborated statements, including that he was a millionaire before. I want to be a millionaire again, that he worked for a millionaire selling kilos of cocaine, that he was a major drug dealer right now, major, as well as begging Mrs. Smith to let me come home. R.Ex.2(Motions Hearing),5:18-5:40,8:30-8:35,11:40-11:55. a. The court erred in admitting the 911 call because it was insufficiently authenticated and the inaudible portion rendered it untrustworthy. The prosecution did not sufficiently demonstrate that the recording [wa]s an accurate reproduction of the call that occurred. Baca, 2015 COA at 26; CRE 901(a). The 911 administrator through whom the prosecution introduced the recording testified that it was made utilizing the 911 ADCOM system. R.Tr.(4/2/15),p She did not and could not testify that the audible portions of the conversation were an accurate reflection of the conversation between Mr. and Mrs. Smith, she did not identify the voices on the recording, did not testify to Mrs. Smith s operation of the phone during the call, nor did she establish that the recorded conversation was not missing material portions of the conversation. R.Tr.(4/2/15),p.16-18; Alonzi, 597 P.2d at 562; Baca, 2015 COA at 27. Therefore, it was not sufficiently authenticated and should not have been admitted. Id. Further, the inaudible portion of the conversation rendered the call inadmissible for the purpose of establishing that Mr. Smith admitted to purposefully 23

31 setting fire to 1161 Daikin, because without Mrs. Smith s testimony the prosecution was unable to demonstrate that the audible portions of the conversation accurately reflected the conversation. See People v. Odneal, 559 P.2d 230, 232 (Colo. 1977) (recording with significant inaudible portions inadmissible because, [i]n view of the admittedly inherent deficiencies in the tape recording, and its poor quality, it could not accurately establish the sequence of events nor the totality of the transaction between the parties); United States v. Young, 488 F.2d 1211, 1214 (8th Cir. 1973);R.Ex.1,4:10-5:23;R.Ex.2(Motions Hearing),18:02-18:55. Here, Mr. Smith s heavy intoxication, emotional state, and the context of marital strife in which his statements were made renders them particularly untrustworthy without a full and accurate representation of the conversation, and therefore the recording should not have been admitted. R.Tr(4/3/15),p.27-28;R.Ex.2. These errors were plain because they violated Colorado case law and the Colorado Rules of Evidence establishing the boundaries for admissibility of recordings. See People v. Pollard, 2013 COA 31M, 40; Odneal, 559 P.2d at 232; Alonzi, 597 P.2d at 562; Baca, 2015 COA at 27;CRE 901(a);CRE 403. b. The court erred in admitting the 911 call on the basis that Mrs. Smith s utterances were mostly questions that could not be hearsay or present a confrontation problem. Hearsay includes an out-of-court oral or written assertion or the nonverbal conduct of a person, if it is intended by him to be communicative that is offered in 24

32 evidence to prove the truth of the matter asserted. CRE 801(a),(c). The rule does not address the grammatical form of such assertions. Id. The courts that have considered the issue [of whether a question can be hearsay] have reached one of three conclusions: (1) a question can be hearsay if it contains an assertion; (2) a question can be hearsay if the declarant intended to make an assertion; or (3) questions can never be hearsay because they are inherently non-assertive. Harris v. Com., 384 S.W.3d 117, 126 (Ky. 2012); see e.g. United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996); Com. v. Parker, 104 A.3d 17, 24 (Pa. Super. Ct. 2014); Stoddard v. State, 887 A.2d 564, 581 (Md. 2005); State v. Kutz, 671 N.W.2d 660, 677 (Wis. Ct. App. 2003); Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999); Brown v. Com., 487 S.E.2d 248, 251 (Va. Ct. App. 1997); State v. Saunders, 491 N.E.2d 313, 318 (Ohio Ct. App. 1984). Under the first approach, courts engage in an objective analysis to determine whether a question contains an assertion by examining the content of the question and the circumstances surrounding its utterance. Harris, 384 S.W.3d at 126. The second approach focuses on whether the declarant subjectively intended to make an assertion. Harris, 384 S.W.3d at 127;FRE 801(a), Advisory Committee's Note. At least two divisions of the Colorado Court of Appeals have declined to hold that questions can never be hearsay, although it appears Colorado courts have not determined whether the objective approach or the subjective intent approach applies. 25

33 See People v. Glover, 2015 COA 16, 38 ( We also reject the People's position that the exchange... did not encompass any hearsay simply because [q]uestions and commands generally are not intended as assertions, and therefore cannot constitute hearsay. )(internal citations omitted); People v. Isom, 140 P.3d 100, 103 (Colo.App. 2005). As a result, the court abused its discretion when it misunderstood and misapplied hearsay law and CRE 801 by rejecting counsel s objections on the basis that it did not believe [ ] interrogatories constitute any form of hearsay that will run afoul of the confrontation clause. R.Tr.(4/1/15),p.26-27;(4/2/15),p.6-7. The court later repeated this misunderstanding of the law: I still firmly believe that testimonial statements do not include interrogatories. R.Tr.(4/1/15),p.43. Due to this erroneous understanding, the court did not assess whether Mrs. Smith s questions were either intended to communicate assertions or objectively contained assertions and if so, whether those assertions were offered for the truth of the matter. See People v. Franklin, 782 P.2d 1202, 1205 (Colo.App. 1989). c. Under either approach, Mrs. Smith s utterances constituted inadmissible hearsay. The 911 call shows Mrs. Smith intended her side of the conversation to serve as assertions. The court found Mrs. Smith s purpose was without question, to preserve that for subsequent prosecution. R.Tr.(4/1/15),p This is reinforced 26

34 by the end of the call when she asks the 911 operator: Did you get all that? Hello? Did you get all that? ; and then informs 911: I m at Great Scott s... Kent Smith there s an active warrant out of Adams County and you have the confession on the arson. Now. Now. R.Ex. 1 5:51-6:16;R.Ex.2(Motions Hearing),19:20-19:45. Based on the circumstances surrounding the making of the 911 call, it is apparent that Mrs. Smith intended her questions to communicate an assertion that Mr. Smith was responsible for the fire at 1161 Daikin. See Jackson, 88 F.3d at 848; CRE 801, 802. Under the objective assertion approach, a significant portion of Mrs. Smith s utterances objectively contained assertions. The prosecution used the 911 call as evidence that Mr. Smith purposefully set fire to 1161 Daikin, including specific information that was offered by Mrs. Smith. See R.Tr(4/3/15),p.20-23,24-25,35-36, For example, the factual assertion that the house they were talking about was 1161 Daikin came from Mrs. Smith: You burned down 1161 Daikin, you burned down Maria s house. Are you fucking serious? R.Ex.1,3:30-4:10. This assertion was used by the prosecution as evidence that Mr. Smith set fire to 1161 Daikin. R.Tr(4/3/15),p.20-23,24-25,35-36, Similarly, the factual assertion that Mr. Smith was five when he was raped inside 1161 Daikin came from Mrs. Smith. R.Ex.1,1:47-2:21. The prosecution repeatedly used this assertion to argue Mr. Smith s motive in setting the fire was his childhood assault. R.Tr(4/3/15),p.21,23. 27

35 d. The admission of the 911 call violated Mr. Smith s confrontation rights because Mrs. Smith s statements were testimonial and she did not testify. The entire 911 call was testimonial because, as the trial court found, the primary purpose of the recording was to establish past events for use in a future criminal prosecution. See Clark, 135 S. Ct. at 2180; Raile, 148 P.3d at 130; McFee, 2016 COA at 35; R.Tr.(4/2/15),p.6. Because Mrs. Smith did not testify at trial, Mr. Smith had no opportunity to cross-examine her on her assertions including the address of the house the two were discussing and Mr. Smith s alleged motivation for the fire, the inaudible portions of conversation, her motivations for calling 911, or whether the recorded call accurately reflected the conversation. As a result, Mr. Smith s confrontation rights were violated. U.S.CONST.amends.VI,XIV;COLO.CONST.art.II, 16,25; Davis, 547 U.S. 813; Crawford, 541 U.S. at 42; Raile, 148 P.3d 126; McFee, 2016 COA at 35. e. Under any standard, the erroneous admission of the 911 call requires reversal. The admission of the 911 call deprived Mr. Smith of a fair trial and requires reversal under any standard, because at a minimum, it so undermined the fundamental fairness of the trial itself... as to cast serious doubt on the reliability of the judgment of conviction. See People v. Pollard, 2013 COA 31M, 43; Suazo, 87 P.3d at 127; Raile, 148 P.3d at 134; U.S.CONST.amend.XIV;COLO.CONST.art.II, 25; Payne, 501 U.S. at 825; Bloom, 185 P.3d at The evidence that the fire was not an 28

36 accident and that Mr. Smith set the fire was far from overwhelming, indeed it was limited to the 911 call: the expert fire investigator could not conclude the fire was intentionally set and there was no physical or eyewitness evidence placing Mr. Smith inside the house. R.Tr.(4/2/15),p.46,55-56,58-59,60-61,67,68,71-73;R.Ex.1;R.Ex.2(MotionsHearing). The prosecution relied heavily on the 911 call in closing and rebuttal closing. R.Tr.(4/3/15),p.20-26, The prosecution played the call during closing argument, pointed to the call as the evidence Mr. Smith knowingly started the fire and had a motive to do so, and that he intended to commit arson while inside the house. R.Tr.(4/3/15),p.20-26, Additionally, the jury asked to listen to the recordings during deliberations. R.Tr.(4/3/15),p Finally, Mr. Smith had no opportunity to cross-examine Mrs. Smith who, through the 911 call in particular, was his primary accuser. As a result, regardless of the standard of reversal applied, the erroneous admission of the 911 call as a whole and Mrs. Smith s assertive utterances require reversal of Mr. Smith s convictions. Pollard, 2013 COA at 43; Suazo, 87 P.3d at 127; Raile, 148 P.3d at The trial court erroneously admitted portions of jail calls between Mr. and Mrs. Smith referring to her statement to police; these statements improperly commented on her invocation of spousal privilege and invited the jury to speculate about evidence that was not presented. The prosecution sought to introduce numerous excerpts of jail calls between Mr. and Mrs. Smith. The court excluded some in which Mrs. Smith explicitly discusses 29