COLORADO COURT OF APPEALS                                         2017COA129


Court of Appeals No. 15CA0410
Adams County District Court No. 13CR1830
Honorable John E. Popovich, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Victor Manuel Mendez,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                         Opinion by JUDGE ROMÁN
                        Navarro and Nieto*, JJ., concur

                         Announced October 19, 2017


Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Meredith Osborne, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Victor Manuel Mendez, appeals the judgment of

 conviction entered after a jury found him guilty of distribution of a

 schedule II controlled substance. Mendez asserts the use of video

 surveillance inside his home constituted an unreasonable search in

 violation of the Fourth Amendment to the United States

 Constitution. In a case of first impression in Colorado, we conclude

 that the use of video surveillance by a confidential informant (CI)

 when the CI is invited into the surveilled area does not violate the

 Fourth Amendment. Mendez also challenges as abuses of

 discretion the district court’s remedy for a discovery violation and

 the jury’s unfettered access to certain evidence during

 deliberations. We affirm.

                             I.   Background

¶2    A CI approached a police investigator with a potential target

 for a controlled drug buy. The CI informed the investigator that he

 knew someone with several pounds of methamphetamine. The CI

 had previously worked with Colorado drug task forces in exchange

 for financial compensation. But in this case, the CI also inquired

 whether the investigator would be able to help him with his




                                    1
 immigration status. The investigator said he would look into the

 request but never got back to the CI.

¶3    In the meantime, the investigator arranged for the CI to

 purchase methamphetamine from Mendez in a controlled drug buy.

 Prior to the buy, police strip-searched the CI and found no drugs on

 his person. With the CI’s consent, police equipped him with an

 audio recording wire, as well as a concealed video camera. The

 video camera was capable of recording both audio and video

 transmissions. The investigator then drove the CI to Mendez’s

 apartment, gave him $100.00 to purchase methamphetamine, and

 waited in a nearby vehicle.

¶4    During the controlled buy, audio from the CI’s wire was

 transmitted simultaneously to the police. The audio and video

 transmissions from the video camera were not transmitted

 simultaneously, although police were able to view the video

 recording after the buy had been completed.

¶5    When the CI returned to the police vehicle after the buy, he

 gave the investigator a plastic container of methamphetamine and

 $80.00 in cash, was taken to the police station, and was strip-




                                  2
 searched a second time. The People then charged Mendez with

 distribution of a schedule II controlled substance.

¶6    Prior to trial, Mendez filed a motion to suppress evidence

 obtained during the CI’s entry into his apartment, arguing that the

 use of video surveillance constituted an unlawful search of his

 home under the Fourth Amendment. The district court denied the

 motion, concluding that because Mendez consented to the CI’s

 entry into his home, the Fourth Amendment was not implicated.

 Mendez did not challenge the evidence as an unlawful search under

 the Colorado Constitution.

¶7    At trial, the People presented testimonial evidence from the CI

 and the investigator, as well as the video recording (which included

 audio), several photos taken from the video recording, and a written

 transcript of the audio taken from the video recording. The

 transcript included the conversation held between Mendez and the

 CI, translated from Spanish into English. In the conversation,

 Mendez stated he did not have $100.00 worth of methamphetamine

 but could sell $20.00 worth of methamphetamine to the CI. A

 photo from the recording showed Mendez, wearing a red and white

 striped shirt, in his apartment. Another photo showed a man


                                   3
 wrapping something in plastic, and, while his face was not visible,

 the man was wearing the same shirt.

                              II.   Analysis

¶8    Mendez contends his conviction must be reversed because (A)

 the video recording of the controlled buy should have been

 suppressed as the result of an unreasonable search under the

 Fourth Amendment; (B) the district court failed to provide an

 adequate remedy for a discovery violation; and (C) the district court

 abused its discretion in failing to limit the jury’s access to the video

 recording and transcript during deliberations. We discern no

 reversible error.

                        A.   Warrantless Search

¶9    According to Mendez, the district court erred in denying his

 motion to suppress the video recording of the controlled drug buy.

 Specifically, he asserts the use of video surveillance inside his home

 constituted an unreasonable search in violation of the Fourth




                                    4
  Amendment.1 We are not persuaded. Rather, we agree with several

  federal circuits that have addressed this issue.

                        1.        Standard of Review

¶ 10   Our review of a district court’s denial of a motion to suppress

  presents mixed questions of law and fact. People v. Martin, 222

  P.3d 331, 334 (Colo. 2010). Although we defer to the district court’s

  factual findings where there exists sufficient evidence in the record

  to support them, we review the district court’s conclusions of law de

  novo. Id.

                             2.    Applicable Law

¶ 11   The Fourth Amendment to the United States Constitution

  prohibits unreasonable searches and seizures. U.S. Const. amend.

  IV; People v. Allison, 86 P.3d 421, 426 (Colo. 2004). The central

  inquiry in determining whether the Fourth Amendment applies “is



  1 On appeal, Mendez also raises a claim under the Colorado
  Constitution; however, his motion to suppress before the district
  court was limited to arguments under the Fourth Amendment.
  Appellate courts should not reach Colorado Constitutional
  arguments raised for the first time on appeal. Martinez v. People,
  244 P.3d 135, 139 (Colo. 2010). Because Mendez did not draft his
  motion “with sufficient particularity to draw the [district] court’s
  attention to a Colorado Constitutional violation,” our review is
  limited to his federal constitutional claim. Id.


                                        5
  whether the defendant had a reasonable expectation of privacy from

  government intrusion in the area searched.” People v. Galvadon,

  103 P.3d 923, 924 (Colo. 2005).

¶ 12   “As the Supreme Court has recognized, ‘[w]hat a person

  knowingly exposes to the public, even in his own home or office, is

  not a subject of Fourth Amendment protection.’” Hoffman v. People,

  780 P.2d 471, 474 (Colo. 1989) (alteration in original) (quoting Katz

  v. United States, 389 U.S. 347, 351 (1967)). “This principle applies

  with equal force to statements knowingly exposed to government

  informants.” United States v. Longoria, 177 F.3d 1179, 1182 (10th

  Cir. 1999).

¶ 13   Thus, a “defendant does not have a justifiable and

  constitutionally protected expectation that a person with whom he

  is conversing will not then or later reveal the conversation to

  police.” People v. Strozzi, 712 P.2d 1100, 1102 (Colo. App. 1985).

  Likewise, an informant “who conceals his police connections may

  either report or record a conversation with a defendant without

  violating defendant’s Fourth Amendment rights.” Id. (emphasis

  added); see also United States v. White, 401 U.S. 745, 749 (1971)

  (holding that a defendant has no reasonable expectation of privacy


                                     6
  regarding conversations held in his home and audio-recorded by a

  third party).

                             3.    Discussion

¶ 14   Mendez concedes that audio surveillance by a CI welcomed

  into his home does not violate the Fourth Amendment. But he

  urges that video surveillance is different, as it allows police to

  “essentially gain virtual entry into the apartment in the form of a

  video camera.” Thus, according to Mendez, the CI’s use of video

  surveillance in this case was an unreasonable search.2

¶ 15   We disagree and note, as a federal circuit court observed in

  affirming a district court’s language, “every federal appellate court

  to decide the issue [has] concluded that there is no constitutionally

  relevant distinction between secret audio and video recordings

  when the informant gathers the information from a location where

  he is lawfully entitled to be.” United States v. Thompson, 811 F.3d

  944, 947 (7th Cir. 2016) (affirming district court’s findings in United

  States v. Thompson, No. 14-CR-90-WMC, 2015 WL 667925, at *8




  2Mendez also argues that the CI in this case was an agent of the
  police. The People do not dispute this point.

                                      7
  (W.D. Wis. Feb. 17, 2015)); see also United States v. Brathwaite,

  458 F.3d 376, 380 n.4 (5th Cir. 2006) (collecting cases).

¶ 16   For example, in Brathwaite, the Fifth Circuit held that a

  defendant forfeited any privacy interests he may have had when he

  invited an informant, who videotaped the defendant’s counterfeiting

  activities, into his home. 458 F.3d at 380-81. In so concluding, the

  court applied the same rationale to a CI’s observations as has been

  applied to conversations with a CI: “[J]ust as [the defendant] gave

  up any expectation of privacy in the things that he allowed [the CI]

  to hear, [the defendant] also gave up any expectation of privacy in

  the things that he allowed [the CI] to see.” Id. at 381 (quoting

  United States v. Lee, 359 F.3d 194, 201-02 (3d Cir. 2004)).

¶ 17   This logic tracks the reasoning applied by the Supreme Court

  with regard to the Fourth Amendment and electronic surveillance.

  See, e.g., White, 401 U.S. at 751 (holding that, just as an informant

  “may write down for official use his conversations with a defendant

  and testify concerning them, . . . no different result is required if the

  agent . . . records them with electronic equipment which he is

  carrying on his person”). As the Third Circuit observed: “The

  principle underlying the governing Supreme Court cases is that if a


                                     8
  defendant consents to the presence of a person who could testify

  about a meeting and is willing to reveal what occurs, the defendant

  relinquishes any legitimate expectation of privacy with respect to

  anything . . . the testimony could cover.” Lee, 359 F.3d at 201

  (finding no “constitutional distinction between consensual audio

  and video surveillance”).

¶ 18   The Second Circuit adopted the same approach in United

  States v. Davis, 326 F.3d 361, 363 (2d Cir. 2003). There, “videotape

  evidence, which merely showed scenes viewable by [a CI]” was not

  subject to the Fourth Amendment because “the hidden camera

  merely memorialized what [the CI] was able to see as an invited

  guest.” Id. at 366.

¶ 19   We agree with these federal circuits and conclude that the use

  of video surveillance through the CI, in this case, did not violate the

  Fourth Amendment. Mendez invited the CI into his apartment for

  the purpose of engaging in a drug transaction. Thus, the CI

  gathered “information from a location where he [was] lawfully

  entitled to be.” Thompson, 811 F.3d at 947. “That the informant

  recorded his observations on video did not transform the

  consensual encounter into a search for purposes of the Fourth


                                     9
  Amendment.” Id. at 949. Because Mendez consented to the CI’s

  presence in his home, he gave up any reasonable expectation of

  privacy in what the CI could observe or visually record. See

  Brathwaite, 458 F.3d at 381.

¶ 20   We recognize that a division of this court observed, in People v.

  Lesslie, 939 P.2d 443, 447 (Colo. App. 1996), that “it is generally

  accepted that there is a legitimate expectation of freedom from

  visual electronic surveillance by police in private restrooms or

  private areas of public restrooms.” But, as that division observed,

  “whether there is a legitimate expectation of privacy in a particular

  case depends necessarily on the facts and circumstances.” Id. at

  446. Unlike electronic surveillance by police in private restrooms or

  private areas of public restrooms, here we conclude that, under the

  circumstances, Mendez had no legitimate expectation of privacy in

  his home. The facts and circumstances in Lesslie involved

  conversations in a restroom recorded by a hidden listening device

  on the windowsill. Id. at 445. By contrast, here, Mendez consented

  to the presence of a CI who observed and recorded a drug

  transaction in Mendez’s home. Indeed, the Lesslie court recognized

  that electronic surveillance “may be properly used to reveal


                                    10
  information otherwise available by personal observation were a

  police agent actually present.” Id. at 448.

¶ 21   The other cases Mendez cites as support for his argument that

  video surveillance is constitutionally different from audio

  surveillance each rely on state constitutional provisions that are

  inapplicable here. See Commonwealth v. Blood, 507 N.E.2d 1029,

  1032-33, 1038 (Mass. 1987) (noting that “warrantless surveillance

  with ‘one party consent’ has been held to lie beyond the protective

  reach of the Fourth Amendment to the United States Constitution,”

  but concluding that the same is not true under article 14 of the

  Massachusetts Constitution); Commonwealth v. Dunnavant, 63 A.3d

  1252, 1255 n.2 (Pa. Super. Ct. 2013) (declining to apply federal

  precedent to video surveillance by a CI because “Pennsylvania

  courts are not bound by the decisions of inferior federal courts

  where the case specifically concerns Pennsylvania law”), aff’d by an

  equally divided court, 107 A.3d 29 (Pa. 2014); State v. Mullens, 650

  S.E.2d 169, 188 (W. Va. 2007) (holding that warrantless electronic

  surveillance through an informant violates the West Virginia

  Constitution, which may “require higher standards of protection




                                    11
  than afforded by the Federal Constitution” (quoting Pauley v. Kelly,

  255 S.E.2d 859, 861 (W. Va. 1979))).

¶ 22   We conclude the CI’s video surveillance of Mendez’s home was

  not an unreasonable search under the Fourth Amendment.

  Accordingly, the district court properly denied the motion to

  suppress the resulting video recording.

                         B.     Discovery Violation

¶ 23   Mendez next asserts the district court abused its discretion by

  failing to provide an adequate remedy for a discovery violation. He

  argues the prosecution’s failure to disclose a conversation between

  the CI and a police investigator about the Department of Homeland

  Security constituted a violation of his constitutional rights under

  Brady v. Maryland, 373 U.S. 83 (1963), and that the district court’s

  chosen remedy deprived him of a fair trial. We are not persuaded.

                           1.    Additional Facts

¶ 24   At trial, the CI testified that he received $100.00 for his

  participation in the controlled drug buy. During cross-examination,

  he further testified that he was not a United States citizen and he

  had notified the investigator of this fact.




                                     12
¶ 25     The People then called the investigator. When asked whether

  any other arrangements were made, the investigator testified:

              We had discussed, if [the CI was] able to do
              much larger amounts, possibly working with
              Homeland Security. I know we’ve had other
              informants that we’ve done that for. But we
              never got to that point.

  Then, when asked if the CI was promised any help with

  immigration, the investigator testified that “[h]e was not promised,

  no.”

¶ 26     Based on the prosecution’s failure to disclose the discussion

  regarding Homeland Security, defense counsel moved to dismiss the

  charge on the basis of (1) prosecutorial misconduct; (2) a Crim. P.

  16 discovery violation; and (3) a Brady violation. Specifically,

  defense counsel argued Mendez was entitled to exculpatory

  information, and that this included the investigator’s discussion

  with the CI regarding possible help with immigration. She further

  noted that she had not had an opportunity to cross-examine the CI

  on this issue.

¶ 27     The district court denied the motion to dismiss because there

  was no showing of prosecutorial misconduct, and it made no

  findings as to whether there was a Brady violation. It did, however,


                                     13
  find a Rule 16 discovery violation. As a sanction for the discovery

  violation, it ordered the investigator to make himself available for an

  interview with defense counsel to determine the scope of his

  representations to the CI.

¶ 28   Defense counsel also requested, however, that the CI be

  subject to recall for cross-examination, arguing that his testimony

  about “what information was provided to him . . . could be contrary

  to what the detective [would say], and that would be impeachment,

  and that would go to his credibility.”

¶ 29   The district court denied the request, and then it recessed for

  half an hour to allow defense counsel to interview the investigator.

¶ 30   When trial resumed, the investigator testified that he had one

  conversation with the CI about providing help with immigration. He

  further testified that he “told [the CI] he would look into it” and

  that, although he spoke with another investigator who had worked

  with Homeland Security in the past, he never informed the CI of

  that conversation.

¶ 31   At the close of the prosecution’s case, defense counsel again

  moved to dismiss the charges or, alternatively, for a mistrial. She

  argued Mendez was prejudiced because the prosecution’s prior


                                     14
  disclosure of the immigration conversation “would have changed the

  cross-examination” of the CI. The district court again denied the

  motion.

                          2.   Standard of Review

¶ 32   We review both a district court’s resolution of discovery issues

  and its decision to impose sanctions for discovery violations for an

  abuse of discretion. People v. Bueno, 2013 COA 151, ¶ 10 (cert.

  granted on other grounds, Nov. 24, 2014).

¶ 33   In determining the appropriate sanction, a district court must

  exercise its discretion “with due regard for the purposes of the

  discovery rules themselves and the manner in which those

  purposes can be furthered by discovery sanctions.” People v. Lee,

  18 P.3d 192, 196 (Colo. 2001). Except where the sanction is

  designed to deter future misconduct, “the goal must be to cure any

  prejudice resulting from the violation.” Id. at 197. In other words,

  the district court should strive to “restore a ‘level playing field,’”

  without affecting the evidence or the merits of the case. Id. (quoting

  People v. Dist. Court, 808 P.2d 831, 837 (Colo. 1991)).

¶ 34   “Because of the multiplicity of considerations involved and the

  uniqueness of each case, . . . an order imposing a discovery


                                      15
  sanction will not be disturbed on appeal unless it is manifestly

  arbitrary, unreasonable, or unfair.” Id. at 196.

¶ 35   We review trial errors in resolving Brady violations for

  constitutional harmless error. See Brady, 373 U.S. at 87 (holding

  that “suppression by the prosecution of evidence favorable to an

  accused upon request violates due process”) (emphasis added).

  Under this standard, reversal is required unless we are “able to

  declare a belief that [the error] was harmless beyond a reasonable

  doubt.” Hagos v. People, 2012 CO 63, ¶ 11 (“In other words, we

  reverse if ‘there is a reasonable possibility that the [error] might

  have contributed to the conviction.’” (quoting Chapman v.

  California, 386 U.S. 18, 24 (1967))) (alteration in original).

¶ 36   We review non-constitutional errors that were preserved at

  trial for harmless error. Id. at ¶ 12. Under this standard, reversal

  is required only if the error “substantially influenced the verdict or

  affected the fairness of the trial proceedings.” Id. (quoting Tevlin v.

  People, 715 P.2d 338, 342 (Colo. 1986)).

                           3.   Legal Standards

¶ 37   “It is well-settled that a prosecuting attorney has both a

  statutory and a constitutional obligation to disclose to the defense


                                     16
  any material, exculpatory evidence he possesses.” Salazar v.

  People, 870 P.2d 1215, 1220 (Colo. 1994).

¶ 38   In its landmark Brady v. Maryland decision, the Supreme

  Court held that “suppression by the prosecution of evidence

  favorable to an accused upon request violates due process where

  the evidence is material either to guilt or to punishment,

  irrespective of the good faith or bad faith of the prosecution.” 373

  U.S. at 87. “There are three components to a true Brady violation:

  The evidence at issue must be favorable to the accused, either

  because it is exculpatory, or because it is impeaching; that evidence

  must have been suppressed by the State, either willfully or

  inadvertently; and prejudice must have ensued.” Bueno, ¶ 12

  (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

¶ 39   Under Crim. P. 16(I)(a)(2), a prosecutor “shall disclose to the

  defense any material or information within his or her possession or

  control which tends to negate the guilt of the accused as to the

  offense charged or would tend to reduce the punishment therefor.”

  This discovery rule “incorporates the holding of Brady v. Maryland.”

  People v. Bradley, 25 P.3d 1271, 1276 (Colo. App. 2001); see also

  Bueno, ¶ 11 (“Under Crim. P. 16(I)(a)(2), prosecutors in Colorado are


                                    17
  obligated to disclose Brady material to an accused . . . .” (quoting

  People v. Dist. Court, 790 P.2d 332, 338 (Colo. 1990))).

                             4.   Discussion

¶ 40   Mendez argues the district court abused its discretion by

  imposing an inadequate remedy for the prosecution’s failure to

  disclose the fact that the CI asked for immigration help and the

  investigator said he would look into it. Although Mendez argues

  this was a Brady violation, the district court never ruled whether a

  Brady violation occurred. Rather, it found a Rule 16 discovery

  violation and imposed a sanction accordingly. Mendez argues the

  district court’s chosen sanction — allowing defense counsel to

  interview the investigator — did not make up for his inability to

  cross-examine the CI regarding his motive for participating in the

  controlled buy.

¶ 41   We agree that the district court’s discovery sanction was

  inadequate in this case because Mendez was given no opportunity

  to cross-examine the CI about whether he believed he would receive

  immigration support from Homeland Security for his willingness to

  participate in the controlled buy. That belief could have been

  relevant to the CI’s motive, regardless of the investigator’s memory


                                    18
  of the conversation. And, the remedy the district court provided —

  an opportunity for defense counsel to interview the investigator

  about the conversation — did not cure that potential prejudice.

¶ 42       Nevertheless, even under the heightened harmless beyond a

  reasonable doubt standard, applied to Brady violations, we

  conclude the district court’s error does not warrant reversal.

¶ 43       To begin with, despite his inability to cross-examine the CI

  about whether his motive for helping the police was to secure

  immigration support from Homeland Security, Mendez

  acknowledges, in his reply brief, that “the defense had quite

  successfully called [the CI’s] credibility into doubt” by the end of

  trial.

¶ 44       Moreover, overwhelming evidence at trial supported Mendez’s

  conviction, including the following:

              a video recording taken by the CI during the controlled

                buy at Mendez’s apartment, which we have already ruled

                was admissible;

              a photo from the recording showing Mendez’s face;

              another photo of a person wearing the same clothing as

                Mendez and packaging something in plastic;

                                       19
           the investigator’s testimony that the CI handed him a

            plastic package containing methamphetamine after the

            controlled buy;

           the CI’s testimony that he purchased methamphetamine

            from Mendez during the controlled buy; and

           testimony from both the investigator and the CI that the

            CI was strip-searched, and no drugs were found, before

            he was given $100.00 and went in for the controlled buy

            and that, after the buy, the CI gave the investigator

            $20.00 worth of methamphetamine and $80.00 in cash

            and was strip-searched a second time.

¶ 45   In light of this overwhelming evidence, we conclude the error

  was harmless beyond a reasonable doubt. That is, even assuming

  the prosecutor’s failure to disclose constituted a Brady violation, we

  conclude there is no reasonable possibility that the district court’s

  failure to provide an adequate sanction “might have contributed to

  the conviction.” Hagos, ¶ 11 (quoting Chapman, 386 U.S. at 24).

¶ 46   This means, of course, any error in the district court’s

  issuance of a sanction under Rule 16 was necessarily harmless

  under the lesser non-constitutional standard. See id. at ¶ 12

                                    20
  (noting that reversal under non-constitutional harmless error review

  “is more difficult to obtain . . . because this standard requires that

  the error impair the reliability of the judgment of conviction to a

  greater degree than the constitutional harmless error standard

  requires”).

           C.   Jury Access to Evidence During Deliberations

¶ 47   Finally, Mendez argues the district court abused its discretion

  in failing to limit the jury’s access to the video recording and

  transcript during deliberations. We discern no abuse of discretion.

                          1.    Additional Facts

¶ 48   At the conclusion of trial, the People requested that the video

  recording and written transcript go back with the jury for its use

  during deliberations. Mendez objected, arguing the jury would

  place undue emphasis on this evidence if given unfettered access.

¶ 49   The district court declined to limit the jury’s access to the

  evidence, finding that the video recording and transcript were “part

  and parcel of the same” non-testimonial evidence and that two

  photos from the video — to which the jurors had unlimited access

  — had already been admitted.




                                     21
                        2.        Standard of Review

¶ 50   “Control over the use of exhibits during jury deliberations

  rests firmly within the [district] court’s discretion, and we may not

  substitute our own judgment for that of the [district] court merely

  because we would have reached a different conclusion.” Rael v.

  People, 2017 CO 67, ¶ 15. Thus, “a court’s refusal to exclude or

  otherwise limit the use of an exhibit will generally be overturned

  only when it is manifestly arbitrary, unreasonable, or unfair.”

  DeBella v. People, 233 P.3d 664, 667 (Colo. 2010).

                             3.    Applicable Law

¶ 51   District courts must ensure that the evidence provided during

  deliberations is not used in such a manner “that there is a

  likelihood of it being given undue weight or emphasis by the jury.”

  Frasco v. People, 165 P.3d 701, 706 (Colo. 2007) (Martinez, J.,

  specially concurring) (quoting Settle v. People, 180 Colo. 262, 264,

  504 P.2d 680, 681 (1972)). In doing so, the district court must

  “assess whether the exhibit will aid the jury in its proper

  consideration of the case, and even if so, whether a party will

  nevertheless be unfairly prejudiced by the jury’s use of it.” DeBella,

  233 P.3d at 668 (quoting Frasco, 165 P.3d at 704-05).


                                       22
¶ 52   This rule flows from the observation that “honoring requests

  for access in the jury room to witnesses’ out-of-court statements

  effectively puts the witness in that room during deliberations and

  creates a risk that the jury will place undue weight or emphasis on

  the out-of-court statements.” Rael, ¶ 22. It is error, therefore, “for

  a [district] court to allow the jury, during deliberations, ‘to engage in

  the unsupervised, and perhaps repetitive, viewing’ of a videotape”

  containing testimonial evidence. People v. Aponte, 867 P.2d 183,

  188 (Colo. App. 1993) (quoting People v. Montoya, 773 P.2d 623,

  626 (Colo. App. 1989)).

¶ 53   However, “[t]he same danger of undue emphasis does not

  inhere in non-testimonial evidence.” Rael, ¶ 23. Thus, “courts in

  Colorado and other jurisdictions have consistently upheld juror

  access to such non-testimonial exhibits.” Id. (collecting cases).

                             4.    Discussion

¶ 54   Mendez contends the district court abused its discretion in

  giving the jury unfettered access to the video recording and

  transcript on the basis of this evidence being non-testimonial —

  that is, he argues a district court is required to retain control over

  all jury exhibits, whether they are testimonial or not.


                                     23
¶ 55   Our supreme court’s decision in Rael, however, makes clear

  that a district court need not limit juror access to non-testimonial

  evidence. Id. (quoting Chambers v. State, 726 P.2d 1269, 1275

  (Wyo. 1986), for the proposition that “[n]ontestimonial exhibits with

  [verbal] content, such as . . . recordings of criminal acts which are

  verbal in nature, are generally allowed to go into the

  deliberations”).3

¶ 56   Mendez does not dispute that the video recording and

  transcript admitted in this case were non-testimonial. See Aponte,

  867 P.2d at 188 (holding that a video recording taken by a CI and

  its corresponding transcript were “non-testimonial in character”).

  His sole contention is that the district court misapplied the law

  when it distinguished between testimonial and non-testimonial

  evidence. We conclude that “the jury was entitled to access the

  non-testimonial [evidence] because [it] did not present the same risk


  3 Although Rael v. People was decided after briefing in this case, it
  merely clarified the supreme court’s prior holdings on this issue —
  that its analysis in DeBella v. People, 233 P.3d 664 (Colo. 2010),
  “hinged on the nature of the exhibits at issue, namely, the victim’s
  videotaped, out-of-court statements.” 2017 CO 67, ¶ 22; see also
  DeBella, 233 P.3d at 666 (noting that because a cited opinion
  merely clarified and “reaffirmed the vitality of” a prior decision, it
  “did not set forth a new rule of law on this issue”).

                                    24
  of undue emphasis as do videos documenting witnesses’ out-of-

  court, testimonial statements.” Rael, ¶ 2. Because the district

  court properly applied this controlling precedent, we discern no

  abuse of discretion in its decision to grant the jury unfettered

  access to the video recording and transcript in this case. See id. at

  ¶ 24.

                              III.    Conclusion

¶ 57      The judgment is affirmed.

          JUDGE NAVARRO and JUDGE NIETO concur.




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