People v. Perez.

2024 COA 94. No. 22CA1805. Sixth Amendment Confrontation Clause—Recorded Jailhouse Phone Calls—Testimonial Statements—Jury Instruction on Provocation—Mistrial—Cumulative Error.

August 22, 2024

Perez was charged with murdering E.A. in La Junta. He initially claimed that he had not been in La Junta or seen E.A. in a long time. But after police matched shell casings from the crime scene to Perez’s mother’s boyfriend’s missing gun, Perez changed his story to self-defense. While Perez was in jail, he discussed his defense strategy in two phone calls with his mother F.P. (the phone calls), during which F.P. said she wanted Perez to maintain his alibi defense. Perez told F.P. that his alibi defense was no longer possible because of the shell casings. F.P. was charged as an accessory after the fact. She invoked her Fifth Amendment privilege against self-incrimination and refused to testify at Perez’s trial. Perez objected to the admissibility of the phone calls on the basis that they violated of his confrontation rights. The trial court found that F.P.’s statements were not testimonial and admitted them. A jury found Perez guilty of first degree murder, and he was sentenced to life without parole in the custody of the Department of Corrections.

On appeal, Perez argued that the trial court’s admission of the phone calls violated his constitutional right of confrontation because the statements were testimonial and he had no opportunity to cross-examine F.P. Statements are testimonial when the circumstances objectively indicate that the interrogation’s primary purpose is to establish or prove past events that are potentially relevant to a later criminal prosecution. Testimonial statements include those made under circumstances that would lead an objective witness to reasonably believe that the statement would be available for use at a later trial. Here, however, Perez failed to show that the purpose of the calls was to get evidence for prosecuting criminal cases, and the record does not indicate that the government was involved in inducing a conversation between Perez and F.P. for prosecution purposes. Thus, an objective person in F.P.’s position would not have reasonably believed the statements would be used in Perez’s prosecution. Instead, the primary purpose of the phone calls was to establish and further Perez’s defense theory. Accordingly, F.P.’s statements were not testimonial, so no Confrontation Clause violation occurred.

Perez also contended that the trial court erroneously instructed the jury on the provocation exception to self-defense. There was evidence that Perez provoked E.A. into using unlawful physical force against him, and that he did so to provide a pretext for him to injure or kill her. Accordingly, the evidence supported the provocation exception, and the trial court did not plainly err. But even if the trial court had erred, any error would not have been substantial.

Perez further asserted that the trial court erred by denying his mistrial motion. During trial, a law enforcement agent mentioned linking the moniker “Lucky”—a moniker that Perez also used—to a person who had recently been released on parole in Kansas. Here, while the agent’s comment was improper, the trial court did not abuse its discretion by denying the motion for a mistrial because the comment was fleeting and the court gave a limiting instruction.

Lastly, Perez argued that he was denied a fair trial due to cumulative errors. However, the record established overwhelming evidence of guilt, so the cumulative effect of any error was slight. Therefore, Perez was not denied a fair trial.

The judgment was affirmed.