Peo v. Dolan

22CA1782 Peo v Dolan 01-08-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1782
El Paso County District Court No. 21CR2005
Honorable Robin Chittum, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Richard Joseph Dolan,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE TOW
Lum and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 8, 2026

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior 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 Defendant, Richard Joseph Dolan, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

murder. We affirm.

I. Background

¶2 The jury heard evidence that would support the following

findings.

¶3 Tara Moorhead called 911 to get medical assistance after the

shooting of David Dawson inside her apartment. Police arrived at

the apartment at the end of the 911 call and found Dawson dead.

According to Officer Phillip Richardson, Moorhead told him the

shooter was “Woody,” and their conversation was captured on his

body camera, which was played to the jury.

¶4 Officers obtained surveillance footage from several cameras

around the apartment complex, as well as a nearby church, and an

officer began reviewing it while the suspect was still at large. The

footage showed the suspect, who was wearing a yellow construction

vest and hard hat, come out of a different apartment, walk across

the street and into Moorhead’s apartment, stay in that apartment

for some time, then walk out of her apartment and back across the

street. The suspect, who was no longer wearing the construction

1
attire, was then shown jumping a fence ten minutes after the

shooting took place, entering a third apartment, and finally

returning to the apartment from which he had started. He

remained in that apartment until police arrested him and later

identified him as Dolan. The jury was shown the surveillance

footage as well as various screenshots of the footage.

¶5 Text messages between Dolan and Moorhead, and between

Dolan and two other individuals, respectively, were also admitted

into evidence. The text messages with Moorhead implied that they

had some type of sexual relationship and that Dolan thought

Moorhead was ending it. His last message to her said, “[T]his

should be interesting.” Dolan also texted the two other individuals

that he needed to get out of the neighborhood.

¶6 Moorhead died, in an unrelated manner to the case, before

trial.

¶7 Dolan was convicted of first degree murder and sentenced to

life in prison without the possibility of parole.

II. Hearsay

¶8 Dolan contends that the trial court erred by admitting

out-of-court statements identifying him as the perpetrator. He

2
contends that the statements are testimonial hearsay, and their

admission violated his rights under the Confrontation Clause. We

conclude that the statements were nontestimonial, and the court

did not abuse its discretion by admitting the statements as excited

utterances.

A. Additional Background

¶9 The prosecution filed a pretrial motion seeking to resolve

issues surrounding the admissibility of Moorhead’s 911 call — in

which she identified Dolan as the perpetrator and described his

appearance — as well as a body camera video — which showed

Moorhead’s statements when officers arrived at the crime scene,

including that “Woody” was the shooter, his physical description,

and where he lived.

¶ 10 The trial court allowed the admission of the 911 call and the

part of the body camera video during which Moorhead made

statements to Officer Richardson in the living room of the

apartment, finding that these statements were nontestimonial and

admissible as excited utterances under CRE 803(2).

¶ 11 At trial, both videos were played for the jury.

3
B. No Confrontation Clause Violation

¶ 12 We review de novo whether a trial court violated a defendant’s

rights under the Confrontation Clause. Nicholls v. People, 2017 CO

71, ¶ 17. The Confrontation Clauses of the United States and

Colorado Constitutions protect a defendant’s right to confront the

witnesses against them. U.S. Const. amend. VI; Colo. Const. art. II,

§ 16. These clauses bar the admission of testimonial hearsay

unless the declarant is unavailable and the defendant had a prior

opportunity to cross-examine the declarant. Crawford v.

Washington, 541 U.S. 36, 51-54 (2004); Nicholls, ¶¶ 22, 30.

¶ 13 The parties do not dispute that Moorhead was unavailable,

that her statements were offered for the truth of the matter

asserted, and that Dolan did not have a prior opportunity to

cross-examine her. Thus, we must determine whether her

statements were testimonial hearsay such that they should not

have been admitted at trial. See Davis v. Washington, 547 U.S. 813,

821 (2006) (“It is the testimonial character of the statement that

separates it from other hearsay that, while subject to traditional

limitations upon hearsay evidence, is not subject to the

Confrontation Clause.”).

4
1. Moorhead’s Statements Were Not Testimonial

¶ 14 Statements are “testimonial when . . . the primary purpose of

the [investigation] is to establish or prove past events potentially

relevant to later criminal prosecution.” Id. at 822. “[T]he relevant

inquiry is not the subjective or actual purpose of the individuals

involved in a particular encounter, but rather the purpose that

reasonable participants would have had, as ascertained from the

individuals’ statements and actions and the circumstances in which

the encounter occurred.” Michigan v. Bryant, 562 U.S. 344, 360

(2011); see also People v. Phillips, 2012 COA 176, ¶ 70 (“The

primary purpose of an [investigation] is determined by objectively

evaluating two main elements: (1) the circumstances in which the

encounter occurred and (2) the statements and actions of both the

declarant and [interviewer].”).

¶ 15 In determining the primary purpose of the investigation,

Bryant instructs us to objectively evaluate factors including

(1) where the encounter occurred; (2) whether the statements were

made during or after an ongoing emergency; (3) the level of formality

of the encounter; (4) the nature of what was asked and answered;

and (5) the purpose that reasonable participants would have had.

5
562 U.S. at 359-60, 366; Phillips, ¶ 70. Although it is not

dispositive, whether there is an ongoing emergency is an important

factor. Bryant, 562 U.S. at 366.

¶ 16 “[W]hether an emergency exists and is ongoing is a highly

context-dependent inquiry” and asks not only whether the threat to

the victim has been neutralized, but whether a threat to the police

and public continues. Bryant, 562 U.S. at 363. The duration and

scope of an emergency may depend on the type of weapon involved;

the severity of the victim’s injuries, to the extent that sheds light on

the purpose of the victim in responding to police questions or the

magnitude of continuing threat; whether the perpetrator has been

disarmed, apprehended, or “flees with little prospect of posing a

threat to the public”; whether the threat is a public threat or a

private dispute; and the formality or informality of the encounter

between the declarant and police. Id. at 364-66.

¶ 17 Our review of the record confirms that Moorhead’s statements

to the 911 dispatch operator and to Officer Richardson were not

testimonial under this rubric.

¶ 18 Moorhead called 911 immediately after Dawson was shot. Her

focus on the call was to get Dawson immediate medical help. She

6
was emotional and crying during the call and said that the shooting

had just happened. The 911 dispatch operator asked questions to

determine the appropriate response to the situation; the call lasted

approximately five minutes and ended once police arrived on scene.

Moorhead did not answer all the 911 dispatch operator’s questions

because of how distraught she was and given her focus on getting

Dawson immediate help. Therefore, viewing the circumstances

objectively, Moorhead’s statements were made “for the purpose of

enabling police to address an ongoing emergency” and, thus, were

nontestimonial. People v. McFee, 2016 COA 97, ¶ 39; see also

Davis, 547 U.S. at 827-28 (a statement during a 911 call identifying

the defendant as the caller’s assailant was not testimonial because

the caller was speaking during and in the immediate aftermath of

the events; the caller was facing an ongoing emergency; the

statements were necessary to resolve the present emergency rather

than just to learn what had happened in the past; and the interview

was informal, with the caller’s answers “frantic” and “in an

environment that was not tranquil”).

¶ 19 Officers arrived on scene at the end of the 911 call. Moorhead

then made statements to Officer Richardson in an informal setting

7
shortly after the shooting and before medical personnel arrived.

Moorhead remained emotional throughout her interaction with

Officer Richardson and continued to have trouble answering

questions because of her heightened emotional state. She

exclaimed “Please hurry” when another officer arrived and later

asked, “Where’s the ambulance?” Though Moorhead answered

most of the questions in the past tense and did not say she needed

help or medical assistance, she was seeking medical help for

Dawson.

¶ 20 Officers did not have control of the situation when Officer

Richardson was asking Moorhead questions. Officer Richardson

did not know whether the shooter continued to pose a threat to

other members of the public or police but knew that a shooting had

occurred in a residential area and that the shooter was at large.

¶ 21 Officer Richardson needed to ascertain identifying information

about the shooter to allow officers to locate him. To that end, he

asked Moorhead questions like, “Who did this?” and “What’d they

look like?” and “Tell me what you saw.” After Moorhead responded

that it was “Woody,” Officer Richardson asked what he looked like,

what he was wearing, and about his height, age, address, last

8
name, and phone number — all questions aimed at finding the

shooter, not at developing the case against him. During the

questioning, Officer Richardson attempted to calm Moorhead down,

told her to focus, and asked short questions to get the identifying

information as quickly as possible. At one point, he interrupted his

interview to radio that he needed “that dog” and instructed newly

arriving officers to get Dawson immediate assistance. Once Officer

Richardson was done getting the identifying information from

Moorhead, he immediately communicated it to other officers so that

they could help locate the shooter. He did not ask her any further

questions.

¶ 22 Viewing the circumstances objectively, we conclude that the

“primary purpose of the [officer’s investigation was] to enable police

assistance to meet an ongoing emergency” and that Moorhead’s

statements were nontestimonial. Davis, 547 U.S. at 822.

¶ 23 Because Moorhead’s statements were nontestimonial, Dolan’s

confrontation rights were not implicated, and we need only address

whether the admission of her statements satisfies our state rules of

evidence.

9
2. The Statements Were Excited Utterances

¶ 24 Admission of nontestimonial hearsay is governed by traditional

evidentiary rules regarding hearsay. People v. Mullins, 104 P.3d

299, 303 (Colo. App. 2004). The trial court determined that

Moorhead’s statements fell within the excited utterance exception to

the hearsay rule. We review that determination for an abuse of

discretion. People v. King, 121 P.3d 234, 238 (Colo. App. 2005). A

trial court abuses its discretion if its ruling misconstrues or

misapplies the law or is manifestly arbitrary, unreasonable, or

unfair. People v. Gee, 2015 COA 151, ¶ 23.

¶ 25 An excited utterance is a statement relating to a startling

event made while the declarant was under the stress of the

excitement caused by the event. CRE 803(2). A statement may be

admissible as an excited utterance if (1) the occurrence or event

was sufficiently startling to render inoperative the normal reflective

thought processes of an observer; (2) the declarant’s statement was

a spontaneous reaction to the event; and (3) direct or circumstantial

evidence supports an inference that the declarant had the

opportunity to observe the startling event. People v. Abdulla, 2020

COA 109M, ¶ 64. The parties do not dispute that the event was

10
startling or that Moorhead had the opportunity to observe it.

Rather, they dispute whether her statements were spontaneous

reactions to the event.

¶ 26 Moorhead’s statements occurred minutes after watching

Dawson get shot and as he was dying (or dead). As discussed, she

was emotional both on the 911 call and when speaking to Officer

Richardson and had difficulty answering questions. Nor does the

fact that some of the statements were made in response to

questions preclude them from being excited utterances. People v.

Garrison, 109 P.3d 1009, 1012 (Colo. App. 2004). Thus, we agree

with the trial court that Moorhead was still under the stress of the

event both during the 911 call and when speaking to Officer

Richardson, and her statements were a spontaneous reaction to the

shooting. The trial court therefore did not err by admitting the 911

call or a portion of the body camera video.

III. Jury Instruction

¶ 27 Dolan contends that the credibility instruction given by the

trial court applied only to testifying witnesses and nothing in the

instruction suggested that the jury should apply it to a

nontestifying witness’s out-of-court statements. He thus contends

11
that none of the given instructions informed the jury that it should

assess and weigh Moorhead’s credibility. We discern no error.

¶ 28 Defense counsel proposed the following instruction:

Evidence is what the witnesses say under
oath, and items allowed as exhibits.

If information came from a person who did not
testify, you must consider the inability of the
defense to confront their story, the potential of
their credibility being undermined if they had
testified, and any information learned about
them, negative or positive, that would speak to
the accuracy or motivations of their testimony.

Witnesses who testify can have their credibility
directly assessed by the jury according to
INSTRUCTION NO. ___. You may believe all of
the testimony of a witness, part of it, or none
of it.

The jury may also consider INSTRUCTION NO.
___ as it applies to a statements made by a
person the defense has been denied the
opportunity to cross-examine. You may
believe all of their story, part of it, or none of it.

¶ 29 The trial court denied giving the tendered instruction, stating,

I don’t think that the proposed instruction isn’t
a statement of the law. I think it is
appropriate. I’m just not going to give it
because I think it gives undue weight to the
evidence from Ms. Moorhead. It is obtained in
the current instructions. And certainly it’s
appropriate for defense counsel to argue much
of what is in the proposed instruction, but I’m
not going to give it.

12
Instead, it gave the general credibility instruction. See

COLJI-Crim. E:05 (2024).

¶ 30 We review de novo whether the jury instructions as a whole

accurately informed the jury of the governing law. People v. Manyik,

2016 COA 42, ¶ 65. However, we review the trial court’s decision

regarding whether to give a particular jury instruction for an abuse

of discretion. Id.

¶ 31 Dolan contends that his instruction, which merely “apprised

jurors of factors it could consider when assessing and weighing the

credibility of witnesses who did not testify in court,” was not

encompassed in the jury instructions that were provided. We

disagree.

¶ 32 The proposed instruction went beyond just stating that the

jury was to determine the weight and credibility to give any

out-of-court statements.1 It defined evidence — taking the

definition from a model criminal jury instruction that is designed to

be given prior to opening statements, see COLJI-Crim. B:03

1 We note that there is no model criminal jury instruction regarding

assessing the credibility of out-of-court statements, except for child
declarants. See COLJI-Crim. D:12 (2024).

13
(2024) — even though the instructions already defined direct and

circumstantial evidence. The tendered instruction also twice

repeated part of the general credibility instruction. See People v.

Nunez, 841 P.2d 261, 265 (Colo. 1992) (“We have also held that it is

not error for a judge to refuse a tendered jury instruction when that

instruction is ‘encompassed’ or ‘embodied’ in the other

instructions.” (collecting cases)).

¶ 33 More problematic, it essentially told the jury that it must be

more skeptical of a hearsay declarant’s testimony because the

declarant was not subject to cross-examination. And it strongly

suggested the existence of information that would have undermined

Moorhead’s credibility had such cross-examination occurred. These

are not correct statements of the law, and Dolan cites no authority,

nor are we aware of any, suggesting otherwise. See People v. Lee,

30 P.3d 686, 689 (Colo. App. 2000) (“[T]he trial court need not give

the defendant’s tendered instruction if it is argumentative, contains

errors of law, merely reiterates portions of the evidence, or is

encompassed within the other instructions.”). Thus, we are not

persuaded that the trial court abused its discretion by not giving

Dolan’s tendered instruction. See Manyik, ¶ 69 (“We may affirm the

14
court’s ruling on any ground supported by the record, even if that

ground was not articulated or considered by the court.”).

¶ 34 We further note that, while the model credibility instruction

does not explicitly apply to hearsay declarants, we think it highly

unlikely on this record that the jury would have thought that it did

not. Indeed, during closing argument, defense counsel told the jury

to apply it when arguing that Moorhead was not credible and

referencing the general credibility instruction. Defense counsel also

pointed out that the jury did not have the opportunity to see

Moorhead on the stand and that they could consider that fact when

deciding whether or not they believed her story. Finally, defense

counsel said, “Just like for any other witness, for any other story,

you can disregard all of it. That is your decision.” In short, defense

counsel argued the substance of the proposed instruction to the

jury. Cf. Lee, 30 P.3d at 689 (finding that there was no error in the

trial court’s revised theory of the case instruction because the

defendant thoroughly presented his theory in closing).

15
IV. Video Footage Narration

¶ 35 Dolan next contends that the trial court erred by admitting

officers’ testimony identifying him in surveillance videos. We

discern no error.

A. Additional Background

¶ 36 Videos from the apartment complex’s surveillance system and

a nearby church were admitted at trial, showing the suspect’s

movements the day of the incident, including from Moorhead’s

apartment, around the complex, and eventually to the apartment

where Dolan was arrested.

¶ 37 Specifically, Officer Kevin Retzlaff testified seeing a “man

dressed in black pants and like a construction vest, come out of the

apartment where the incident took place,” as well as the movements

of the man before and after the shooting. Videos were not played

during his testimony, nor did Officer Retzlaff identify the man in the

videos as Dolan.

¶ 38 During Detective Matthew Kerr’s testimony, the prosecution

played two of the surveillance videos. The first video was a

compilation of the surveillance footage videos. While playing this

video for the jury, the prosecutor asked various questions about the

16
footage. Detective Kerr answered those questions and pointed out

areas of interest on the video, such as the locations of where the

hard hat and construction vest were later found by police, as well

as movements the suspect made that were difficult to see; placed

the video into the timeline of the incident; and made other

observations (such as, “the apparent suspect running from behind

the shed, obviously not wearing the same clothing, but has kind of

the same pretty distinct gait as he runs”). Detective Kerr referred to

the individual on the video as the “suspect” and did not identify

Dolan by name.

¶ 39 The second video showed Dolan’s arrest. While this video was

played, Detective Kerr identified Dolan as the person who was

depicted on the video as being arrested.

¶ 40 During Detective Nicole Black’s testimony, the prosecution

played three videos and, while doing so, Detective Black answered

questions about the timing of the videos, directed the jury’s

attention to certain areas of the screen to watch, and described

what the individual or suspect was doing (for example, “So the

individual jumps over the fence from that corner here wearing the

17
construction vest and construction helmet”). Detective Black also

did not identify Dolan by name.

B. Standard of Review and Applicable Law

¶ 41 Under CRE 701, a lay witness may testify to opinions or

inferences so long as they are (a) rationally based on the perception

of the witness; (b) helpful to a clear understanding of the witness’s

testimony or the determination of a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge within the

scope of CRE 702.

¶ 42 Lay opinion testimony is permitted under Rule 701 because “it

has the effect of describing something that the jurors could not

otherwise experience for themselves by drawing upon the witness’s

sensory and experiential observations that were made as a

firsthand witness to a particular event.” McFee, ¶ 76 (quoting

United States v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013)). But a

lay witness’s opinion based on exactly the same information that

the jury has cannot be helpful to the jury. Id.

¶ 43 Specifically, a lay witness may testify regarding the identity of

a person depicted in a surveillance photograph or video if there is

some basis for concluding that the witness is more likely to

18
correctly identify the defendant from the photograph or video than

the jury. See Robinson v. People, 927 P.2d 381, 382 (Colo. 1996).

¶ 44 “[We] must not disturb a trial court’s admission of evidence

pursuant to CRE 701 absent an abuse of discretion.” Id. at 384.

C. Application

¶ 45 As an initial matter, for two of the videos, Dolan points us to

nowhere in the record where officers identified the person on the

videos as Dolan. Only in Detective Kerr’s narration of the video

showing Dolan’s arrest did any witness identify Dolan as the person

in the video. Thus, it is not clear that Robinson would even apply to

any testimony other than Detective Kerr’s.

¶ 46 In any event, we discern no error in permitting the officers’

narrations.

¶ 47 The officers spent hours watching the surveillance videos and

had additional knowledge that the jury did not have that

contributed to their ability to explain each of the videos. Detective

Kerr testified that his review “probably took a week total time.”

Detective Black created screenshots based on her review of the

videos, which pointed out specific details, implying she also spent a

considerable amount of time reviewing the videos. See People v.

19
Grant, 2021 COA 53, ¶ 66 (noting that the detective watched the

surveillance video “several dozen times,” which was not true of the

jury). Officer Retzlaff testified he was familiar with the camera

systems at the apartment complex because it was his “normal

[patrol] area.” Further, both detectives went to the apartment

complex during the investigation and participated in searches of the

area depicted in the videos, which included recovering clothing and

other items shown in the videos.

¶ 48 Thus, the jury was not in the same position as the testifying

officers and there was some basis for the trial court to find that they

were in a better position than the jury. See id. Further, the

officers’ explanations were helpful to the jury, even if the jurors

could have viewed the videos themselves, given the officers’

knowledge of the scene and the varied camera angles showing the

suspect’s movements in different locations around the apartment

complex. See id.

¶ 49 Nor are we persuaded otherwise by Dolan’s assertion that

interpretation of the videos amounted to an opinion that Dolan was

guilty and committed the offense, thereby invading the province of

the jury. Although Detective Kerr identified Dolan as the person in

20
the surveillance video getting arrested, he did not take the

additional step of opining that Dolan committed the charged

offenses. See People v. Penn, 2016 CO 32, ¶ 31; Gallegos v. People,

403 P.2d 864, 873 (Colo. 1965) (“[T]o say [the witness] identified the

defendants does not give rise to the conclusion that they were,

therefore, guilty of the crime charged.”). And, as noted, the other

two officers never identified Dolan as the man in the videos.

¶ 50 Accordingly, the trial court did not err by allowing this

testimony.

V. Video Screenshots

¶ 51 Dolan also contends that the trial court erred by admitting

screenshots taken from the surveillance videos because it violated

CRE 403 under the reasoning in People v. Tardif, 2017 COA 136.

We discern no error.

¶ 52 At trial, both detectives testified about screenshots taken from

the surveillance videos, which were admitted into evidence. Many

of the screenshots included either text boxes explaining what was

shown or a small red circle around a particularly small detail, or

both.

21
¶ 53 Under Rule 403, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice.” That being said, the rule “strongly favors admissibility of

relevant evidence,” People v. Gibbens, 905 P.2d 604, 607 (Colo.

1995), and “the balance should generally be struck in favor of

admission when evidence indicates a close relationship to the event

charged.” (quoting People v. Dist. Ct., 785 P.2d 141, 146 (Colo.

1990)). Unfair prejudice in this context “does not mean prejudice

that results from the legitimate probative force of the evidence.” Id.

at 608. Rather, it means an undue tendency to suggest a decision

on an improper basis, such as bias, sympathy, anger, or shock. Id.

We review a trial court’s decision to admit evidence under Rule 403

for an abuse of discretion. See Yusem v. People, 210 P.3d 458, 463

(Colo. 2009).

¶ 54 In Tardif, the division concluded that two slow-motion

recordings of a shooting were relevant, but their probative value

was “very low” because “[t]he real-time recording was admitted and

clearly showed the sequence of events around the shooting.” Tardif,

¶¶ 47-48. The division also concluded that “by altering the

real-time recordings of the shooting, the slow-motion recordings

22
may have portrayed Tardif’s actions as more premeditated than

they actually were.” Id. at ¶ 49.

¶ 55 But Tardif does not stand for the proposition that the

prosecution may never show video stills. Moreover, the facts in

Tardif are distinguishable from the facts before us.

¶ 56 Dolan contends that the screenshots misled the jurors by

making it seem as if his act was more purposeful than he claimed.

But the jurors could not have been misled into thinking the

screenshots (as opposed to slow-motion videos) were the speed at

which the events took place, nor did the prosecutor present them as

a frame-by-frame depiction of what happened.

¶ 57 The prosecution showed the screenshots to isolate specific

facts that were otherwise difficult to see on the real-time videos.

For example, the prosecution showed a screenshot of the suspect

throwing the hard hat he had been wearing to the right in a parking

lot.2 For this reason, we do not find persuasive Dolan’s contention

that this evidence was needlessly cumulative.

2 Dolan does not explain how the notations on the exhibits

exacerbated any danger of unfair prejudice, and thus, we do not
consider that argument. See People v. Cuellar, 2023 COA 20, ¶ 49.

23
¶ 58 Assuming the maximum probative value that a reasonable fact

finder might give the evidence and the minimum unfair prejudice to

be reasonably expected, we cannot say that the trial court abused

its discretion by admitting the screenshots.

VI. Text Messages

¶ 59 Dolan contends that the trial court erred by admitting text

messages between Dolan and Moorhead, Dolan and “Curser,” and

Dolan and “Connie Ma” because the messages he purportedly sent

were not authenticated and were hearsay.3 The People contend that

Dolan waived his authentication argument with respect to his text

messages with Moorhead. We also have “an independent,

affirmative duty to determine whether a claim is preserved and

what standard of review should apply, regardless of the positions

taken by the parties.” Forgette v. People, 2023 CO 4, ¶ 15 (quoting

People v. Tallent, 2021 CO 68, ¶ 11). In fulfilling that duty, we

conclude that Dolan waived his argument with respect to the

authenticity of all the text messages attributed to him.

3 Dolan does not challenge the authentication of the text messages

sent by Moorhead, Curser, or Connie Ma.

24
¶ 60 Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (citation omitted).

We review de novo whether a waiver occurred. Forgette, ¶ 12.

¶ 61 The prosecution sought to introduce text messages between

Dolan and Curser and Dolan and Connie Ma. Defense counsel

objected and drew a distinction between these text messages and

those with Moorhead stating,

I would like to make, I think, my explanation
very clear. The difference that I see between
these text messages and the text messages of
Tara Moorehead is the Court has already ruled
that my confrontation objection of Tara
Moorehead was unsuccessful, has already
denied these. And I think that this text
message thread is necessary to correct what I
will call misleading information that the jury
could have received regarding Ms. Moorehead
and her relationship with my client. And so
that is why I’m not . . . . It’s a tactical decision
in light of the Court’s [ruling on a different
motion].

The trial court admitted the messages, subject to the prosecutor

laying the appropriate foundation.

¶ 62 Later, the court admitted the text messages between Dolan

and Moorhead with no objection from defense counsel. Thereafter,

defense counsel introduced three exhibits, representing that they

25
were text messages between Dolan and Moorhead, which Detective

Black confirmed. The phone numbers involved in the text messages

that defense counsel admitted matched those of the text messages

the prosecutor introduced. Defense counsel also conceded in

closing argument that Dolan was the one who sent these text

messages to Moorhead.

¶ 63 We acknowledge that counsel described the decision not to

object to the text messages between Dolan and Moorhead as being

the result of the court’s denial of his Confrontation Clause

challenge involving the admission of Moorhead’s statements.

Nevertheless, we conclude that this self-described “tactical decision”

was an intentional relinquishment of a known right. Defense

counsel admitted additional text messages between Dolan and

Moorhead and elicited testimony from Detective Black identifying

Dolan and Moorhead as being the participants in this chain of

messages. Thus, Dolan cannot now complain on appeal that the

other messages he sent, from the same phone number, were not

authenticated. See Rediger, ¶ 39.

¶ 64 Turning to the text messages between Dolan and Curser,

defense counsel asked Detective Black on cross-examination if the

26
message were between Dolan and Curser, and Detective Black

answered that they were. And defense counsel asked Detective

Black if a different set of text messages were between Dolan and

Connie Ma.4 Because defense counsel again introduced evidence

that the messages were between Dolan and Curser and between

Dolan and Connie Ma, he cannot now complain on appeal that

Dolan’s messages in these exchanges were not authenticated as his.

See id.

¶ 65 As to Dolan’s contention that the statements he texted were

hearsay, we discern no error. Dolan’s statements were statements

by a party-opponent and were therefore admissible. See CRE

801(d)(2)(A).5

VII. Impeachment Evidence

¶ 66 Dolan contends that the trial court reversibly erred by

excluding evidence that was relevant to impeaching Moorhead’s

credibility by showing that she was not truthful when she said that

4 Counsel actually referred to the other person in this text exchange

as Consuelo Bensor. Other evidence in the record established that
Bensor was also known as Connie Ma.
5 Again, Dolan does not direct this appellate argument to

Moorhead’s, Curser’s, or Connie Ma’s texts in these exchanges.

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there was only one altercation on the night before the incident.

Dolan further contends this exclusion improperly limited his right

to present a complete defense and confront the prosecution’s

evidence. Even assuming, without deciding, that it was error to

exclude such evidence, we discern no reversible error.

¶ 67 During the cross-examination of Detective Black, defense

counsel inquired about statements Moorhead made to officers about

an altercation the night before the shooting. This line of

questioning revealed that Moorhead had initially told officers that

there had not been an argument that night but then later told

officers that there had been an altercation between Dawson and

Timothy Mulhauser. Defense counsel then asked if Moorhead had

indicated whether Dawson had fought with anyone else during that

timeframe, and Detective Black responded, “I believe she said — I

know when I spoke to people . . . it’s been learned that there was

some other altercation between David Dawson and some other

individuals, yes.”

¶ 68 Defense counsel then started to introduce evidence that

officers had interviewed another individual who said that there was

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a second altercation that night, but the court did not allow this

testimony.

¶ 69 The parties disagree on which standard of review applies to

Dolan’s arguments. Dolan contends that the constitutional

harmless error standard applies because the trial court “deprived

[him] of any meaningful opportunity to present a complete defense.”

People v. Osorio-Bahena, 2013 COA 55, ¶ 17 (quoting Krutsinger v.

People, 219 P.3d 1054, 1061 (Colo. 2009)). In contrast, the People

assert that the nonconstitutional harmless error standard applies

because the court’s evidentiary ruling did not foreclose Dolan’s

opportunity to test the prosecution’s evidence. See People v.

Conyac, 2014 COA 8M, ¶ 93 (“An erroneous evidentiary ruling may

rise to the level of constitutional error if it deprived the defendant of

any meaningful opportunity to present a complete defense.”).

¶ 70 We need not determine which standard of review applies,

however, because even applying a constitutional harmless error

standard of reversal, we discern no reversible error. Under that

standard, reversal is required unless the error was harmless beyond

a reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11.

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¶ 71 Most importantly, despite the court excluding this evidence,

the jury still heard testimony from Detective Black that officers had

learned there was an additional altercation that night that

Moorhead had not disclosed. The jurors also heard multiple times

that Moorhead had not initially told officers about the altercation

between Dawson and Mulhauser. And defense counsel was still

able to argue in closing argument that Moorhead was not credible

for multiple reasons, including that she did not initially tell officers

about Dawson and Mulhauser’s altercation. Thus, any error was

harmless beyond a reasonable doubt. See People v. Houser, 2013

COA 11, ¶¶ 70-71; Vega v. People, 893 P.2d 107, 120 (Colo. 1995).6

VIII. Disposition

¶ 72 The judgment is affirmed.

JUDGE LUM and JUDGE MOULTRIE concur.

6 Because we have only assumed one error by the trial court, we

conclude that there is no cumulative error. See Howard-Walker v.
People, 2019 CO 69, ¶ 25 (cumulative error requires multiple
errors).

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