Peo v. McNeal

23CA1866 Peo v McNeal 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1866
City and County of Denver District Court No. 22CR6017
Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Treneil M. McNeal,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE SCHUTZ
Fox and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 18, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Robert W. Kiesnowski, Jr., Alternate Defense Counsel, Commerce City,
Colorado, for Defendant-Appellant
¶1 This case arises from the shooting of Gregory Hopkins by

Javon Price. For supplying the gun Price used to shoot Hopkins,

defendant, Treneil M. McNeal, was charged with first degree murder

on a conspiracy theory. At trial, McNeal’s defense was that Price

had shot and killed Hopkins and that he did not supply the gun.

The jury convicted McNeal of the lesser included offense of second

degree murder, and the court sentenced him to forty years in the

custody of the Department of Corrections.

¶2 McNeal now appeals. We affirm the judgment of conviction.

I. Factual and Procedural Background

¶3 Price worked at a concession stand in Coors Field, along with

Madison Rickey and Rayvell Powell. Hopkins managed the stand.

The four of them were working the evening of August 6, 2021, when

an argument erupted between Price and Hopkins. After the

argument, Price left in the middle of his shift and Hopkins stayed

until closing.

¶4 At the end of the night, Hopkins started to walk out with a

coworker then abruptly veered towards a different exit. Shortly

after Hopkins left his coworker, he exited Coors Field and, as video

surveillance showed, was confronted by three men. Several shots

1
rang out. Emergency responders found Hopkins unresponsive at

the bottom of a staircase with at least four bullet wounds.

¶5 Two of Hopkins’s coworkers, including the one he had almost

walked out of the stadium with, identified Price, Powell, and

Hopkins as three of the men in the video; the fourth remained

unidentified for almost a year. Eventually, due to an investigative

lead in another case, McNeal was identified as the fourth man in

the video and charged with first degree murder.

¶6 Before trial, McNeal moved to suppress all evidence police

obtained through a search warrant directed at his cell phone.

McNeal argued that the search warrant lacked particularity and

therefore violated his Fourth Amendment rights. The court denied

McNeal’s motion, finding the warrant was not overbroad.

¶7 Shortly before trial began, the prosecution sought to introduce

evidence of McNeal’s involvement in a later, unrelated shooting at

Zeppelin Station, as well as location data derived from the GPS

ankle monitor he wore on the night Hopkins was shot. The trial

court granted the prosecution’s motion in part and denied it in part.

The court reasoned that the prosecution could introduce evidence

that McNeal was wearing an ankle monitor at the time Hopkins was

2
shot and the “locational data transmitted from the monitoring.”

But the court barred the prosecution from introducing evidence

related to the Zeppelin Station shooting. The court did, however,

permit the prosecution to elicit a narrow statement explaining the

delay in identifying McNeal as a suspect.

¶8 During jury selection, McNeal made a Batson challenge to the

prosecution’s peremptory strike of a prospective juror. The court

denied the challenge, ruling that the prosecution articulated a race-

neutral reason for excluding the juror and that the reason was not

a pretext for purposeful discrimination.

¶9 As the trial progressed, the prosecution planned to call Rickey.

Outside the presence of the jury, the prosecution raised two

potential hearsay issues that might arise during McNeal’s cross-

examination of Rickey. The court ultimately decided that McNeal

could not cross-examine Rickey on two specific statements because

they called for hearsay responses. In the first statement, Rickey

told a police officer that, before the shooting, Powell had asked

Rickey to store a gun in her car. In the second statement, Rickey

told a different police officer that she had called Hopkins on the

night of the homicide to warn him that Price and Powell had a gun.

3
The court sustained the prosecution’s objections to any questions

referencing those statements.

¶ 10 Later, the prosecution called Javon Price as a witness, despite

multiple warnings from both Price’s counsel and McNeal’s counsel

that Price would refuse to testify if called as a witness even if offered

immunity. As forecasted, Price invoked his Fifth Amendment rights

when asked his name. At that point, the prosecution conceded that

Price would not answer any questions, and the court dismissed him

from the witness stand.

¶ 11 Near the end of trial, the prosecution sought to introduce GPS

location records that were collected by McNeal’s ankle monitor.

McNeal objected to the records on the grounds that they were

hearsay. The prosecution countered that the records were

admissible under CRE 803(6). The court overruled McNeal’s

objections.

¶ 12 McNeal now appeals his conviction, challenging the legal and

evidentiary issues noted above.

4
II. Analysis

A. Cell Phone Search Warrant

¶ 13 McNeal argues that the trial court erred in denying his motion

to suppress his cell phone records on the grounds that the scope of

the search authorized by the warrant was overbroad. We disagree.

1. Additional Facts

¶ 14 The trial court made the following factual findings based on

the investigating officer’s affidavit in support of the warrant.

¶ 15 In May 2022, more than nine months after the Coors Field

shooting, police responded to a shooting that occurred at Zeppelin

Station and began an investigation. Police eventually matched the

bullet casings from the Zeppelin Station shooting with the casings

found at the Coors Field shooting. This allowed them to identify

McNeal as the unknown fourth man in the video footage.

¶ 16 Using the GPS data from McNeal’s ankle monitor, police

confirmed that he was at Coors Field the night that Hopkins was

shot and left shortly after the shooting. Based on the matching

ballistics, the GPS data from the ankle monitor, and the physical

similarities between McNeal and the unidentified man in the video,

police obtained a warrant to search McNeal’s phone.

5
¶ 17 Police had requested the warrant to allow them to search for

information relevant to both the Coors Field and the Zeppelin

Station investigations. The resulting warrant incorporated the

affidavit. The warrant encompassed all of McNeal’s call and text

messaging records for a fourteen-month period.

2. Standard of Review

¶ 18 “In reviewing a suppression order, we defer to the trial court’s

findings of fact if they are supported by the record and review its

legal conclusions de novo, taking into consideration the totality of

the circumstances, to determine whether the suppression order

should be upheld or set aside.” People v. Davis, 187 P.3d 562, 563-

64 (Colo. 2008). If we determine the trial court erred by failing to

suppress evidence, the error is reversible unless it was harmless

“beyond a reasonable doubt.” Niemeyer v. People, 2024 CO 58, ¶ 50

(quoting Hagos v. People, 2012 CO 63, ¶ 11).

3. Applicable Law

¶ 19 The Fourth Amendment protects individuals from an

unreasonable search or seizure of personal property by the

government. U.S. Const. amend. IV. A warrant may be issued only

if there is probable cause for a search or seizure. Id.

6
¶ 20 A “general warrant” is one that permits “general, exploratory

rummaging in a person’s belongings.” People v. Coke, 2020 CO 28,

¶ 34 (quoting Andresen v. Maryland, 427 U.S. 463, 480 (1976)).

General warrants are prohibited under the Fourth Amendment. Id.

Thus, a warrant must be supported by probable cause that a crime

has been committed, and the scope of the warrant must be

“sufficiently particular that it enables the executing officer to

reasonably ascertain and identify the things authorized to be

seized.” People v. Rodriguez-Ortiz, 2025 COA 61, ¶ 22 (quoting

People v. Roccaforte, 919 P.2d 799, 803 (Colo. 1996)). A warrant

lacks particularity if it does not describe with specificity the place or

thing to be searched and the information to be seized. United

States v. Suggs, 998 F.3d 1125, 1132 (10th Cir. 2021).

¶ 21 When evaluating whether a warrant is sufficiently particular,

the reviewing court must look at the “totality of the circumstances,”

Rodriguez-Ortiz, ¶ 21, reviewing the warrant and any

“accompanying affidavits” in a “practical, common sense fashion” to

determine if probable cause exists. Id. at ¶ 23 (quoting Roccaforte,

919 P.2d at 804).

7
¶ 22 Because cell phones contain so many different types of private

data, warrants to search them must be carefully scrutinized. See

Coke, ¶ 37 (“Given modern cell phones’ immense storage capacities

and ability to collect and store many distinct types of data in one

place, this court has recognized that cell phones ‘hold for many

Americans the privacies of life’ and are, therefore, entitled to special

protections from searches.” (quoting People v. Davis, 2019 CO 24,

¶¶ 17-22)). In Coke, the warrant was not restricted to evidence

related to the particular crime being investigated and did not limit

the search to the time period when the alleged assault happened.

Id. at ¶ 38. Therefore, the supreme court held it was “unreasonable

under the Fourth Amendment.” Id.

4. Cell Phone Warrant Analysis

¶ 23 McNeal argues the warrant violated the Fourth Amendment

because it was not sufficiently particular in terms of the dates to be

searched and the information to be gathered.

¶ 24 The trial court wrote a thorough order explaining its findings

and discussing the legal authorities justifying its conclusion that

the warrant was sufficiently particular. The trial court determined

that the police requested a warrant that encompassed fourteen

8
months of McNeal’s cell phone data because the warrant covered

McNeal’s potential involvement in both the Coors Field shooting and

the Zeppelin Station shooting. The trial court also noted that the

officer’s supporting affidavit was incorporated into the warrant by

reference. This was critical because the affidavit — in bold letters

— specified that “[t]hese records will be searched by the Denver

Police Department and/or the Denver District Attorney’s Office for

evidence pertaining to the Homicide – Shooting that occurred on

August 6th, 2021 [the date Hopkins was murdered], and the

Aggravated Assault – Shooting that occurred on May 4th, 2022 [the

day of the Zeppelin Station shooting].” See United States v. Bishop,

910 F.3d 335, 337 (7th Cir. 2018) (The particularity requirement is

met if “the warrant cabins the things being looked for by stating

what crime is under investigation.”); see also People v. Noble, 635

P.2d 203, 209 (Colo. 1981) (the particularity requirement eliminates

the “likelihood of confusion or uncertainty by the executing officers

as to the scope of the permissible search”).

¶ 25 The court reasoned that when reading the warrant and

supporting affidavit together in a practical and commonsense

9
manner, see Roccaforte, 919 P.2d at 804, the warrant was

sufficiently particular and therefore not a general warrant.

¶ 26 On appeal, McNeal again relies on Coke to suggest that the

warrant lacked particularity. But we find Coke distinguishable.

That case involved a warrant that allowed police to “search all texts,

videos, pictures, contact lists, phone records, and any data that

showed ownership or possession.” Coke, ¶ 38. It also allowed law

enforcement to search for and seize “any . . . fruits or proceeds of a

crime, or data intended to be used in the commission of a crime.”

Id. at ¶ 35. The warrant in this case specified what was to be

searched (only McNeal’s phone records), and what kind of

information could be seized. The information in question included

device and account information identifying who the phone belonged

to, as well as call information, messaging information, and location

data from the phone — but only during the fourteen-month period

that included the Coors Field shooting and the Zeppelin Station

shooting. Moreover, by incorporating the probable cause affidavit,

the warrant was restricted to evidence pertaining to the Hopkins

homicide and the Zeppelin Station shooting.

10
¶ 27 Given these limitations, we conclude that the warrant was

sufficiently particular. Therefore, the trial court did not err by

denying the motion to suppress.

B. Batson Challenge to Prospective Juror DD

¶ 28 McNeal argues that the trial court erred by denying his Batson

challenge to the prosecution’s peremptory strike of presumptive

juror DD,1 who, like McNeal, is Black. We disagree.

1. Standard of Review

¶ 29 During the jury selection process, a party may not

discriminate based on a prospective juror’s race or ethnicity. See

U.S. Const. amend. XIV; Colo. Const. art. II, §§ 16, 25; see also

Batson v. Kentucky, 476 U.S. 79, 85-87 (1986). If a party raises a

Batson challenge alleging racial discrimination, the trial court

engages in a three-step analysis. People v. Toro-Ospina, 2023 COA

45, ¶ 16. First, the court must determine if the objecting party

made a prima facie showing that the peremptory strike was based

on race; second, if the first step is met, the striking party must offer

1 A presumptive juror is a person seated in the jury box during voir

dire, who, unless struck by a party or removed by the court, would
be sworn in as a juror at the end of voir dire.

11
a race-neutral reason for the removal of the prospective juror; and

third, the court must determine whether the objecting party has

shown by a preponderance of evidence that the strike was

purposefully discriminatory on the basis of race. Id.; see People v.

Ojeda, 2022 CO 7, ¶¶ 21-27. The third step in a Batson challenge

is a question of fact, so we review the trial court’s decision for clear

error. People v. Phillips, 2012 COA 176, ¶ 161. Under clear error

review, we must affirm the district court’s finding unless it is

without record support. Martinez v. People, 2024 CO 6M, ¶ 34.

2. Batson Analysis

¶ 30 McNeal does not challenge the first or second Batson steps.

Thus, we are only reviewing to assess whether the trial court erred

by finding that McNeal did not satisfy his burden of proving that the

prosecutor’s striking of DD was “motivated in substantial part by

discriminatory intent.” Flowers v. Mississippi, 588 U.S. 284, 303

(2019) (quoting Foster v. Chatman, 578 U.S. 488, 513 (2016)).

¶ 31 Before the start of jury selection, all the prospective jurors

completed questionnaires. DD left a question about his prior

criminal history blank, so the prosecution ran a search to

determine if DD had any previous criminal convictions. The

12
prosecution reported that he did. After hearing this information,

the court and counsel spoke with DD at the bench.

THE COURT: Okay. Mr. DD, thank you so
much. Just want to doublecheck on
something. When we asked the question
about whether or not you had been a party or
a witness or involved in any court proceeding,
it — we have a concern just because the name
was a little bit familiar. Do you have any kind
of criminal history? Have [y]ou been a
defendant in a criminal case?

PROSPECTIVE JUROR: Have I been — yes.

THE COURT: Okay. What — and so what —
yeah. That’s — maybe the question wasn’t
clear. Can you give us more insight into
that[?] I think it’s something we need to know,
since that’s what the question was really
aimed at, whether or not you’ve been a party in
a criminal case.

PROSPECTIVE JUROR: Yes. I was part of a
criminal case, and it got found guilty.

THE COURT: Okay. What was that?

PROSPECTIVE JUROR: It was a — for assault.

....

THE COURT: Okay. And is that the only case?

PROSPECTIVE JUROR: Yes.

THE COURT: Counsel, do you have any follow-
up questions?

13
PROSECUTION: I mean, it looks like there was
one from 2022, one from 2016, one from 2013
and one from 2006. Does that sound
accurate? And 2018 as well.

....

DEFENSE COUNSEL: I think the ultimate
question, sir is: Do you think you could be fair
both to the Defense and to the Prosecution?

PROSPECTIVE JUROR: I could be. I don’t
have no problem with neither side as far as
going with what the judge asked us to do.

THE COURT: Okay. So there’s nothing about.
I know there was a — and I appreciate your
explanation of the circumstances, but I want
to make sure. Is the fact that — you’ve been in
the system and you know a little bit about
what goes on. Is that going to cause you to be
— you know, to give the Defense a leg up?

PROSPECTIVE JUROR: No. I wouldn’t do that,
because I don’t think it was done for me . . . .

¶ 32 The prosecutor later used a peremptory challenge seeking to

excuse DD. McNeal’s counsel objected on the grounds that DD was

the only presumptive juror of the same race as McNeal. The

prosecutor responded that the decision to strike DD was based on

the fact that he failed to answer the criminal history inquiry on the

questionnaire; had five prior felony charges, at least one of which

resulted in a conviction; and failed to take accountability for his

14
criminal record. The trial court found the prosecutor’s explanation

was race-neutral, credible, and that there was no indication that

the strike was racially motivated. The court also noted that DD was

evasive in his answers to the questions posed by counsel and the

court regarding his past criminal history. Considering these

factors, the court denied the Batson challenge.

¶ 33 Given DD’s lack of candor in completing his jury

questionnaire, his significant past interactions with the criminal

justice system, and his responses to counsel’s and the court’s

questions, we discern no error in the trial court’s conclusion that

McNeal failed to prove that the peremptory challenge was

motivated, in substantial part, by racial prejudice. See Flowers,

588 U.S. at 303.

C. Prosecutorial Misconduct

¶ 34 During the prosecution’s opening statement, McNeal objected

to a remark regarding how McNeal became a suspect in the case.

Specifically, McNeal argued that the language the prosecution used

strayed too far from the language the court allowed. The court

overruled McNeal’s objection at trial.

15
¶ 35 On appeal, McNeal now argues that the prosecutor committed

misconduct, and that the court erred in overruling McNeal’s

objection.

1. Preservation and Standard of Review

¶ 36 To preserve an issue for appeal, the objecting party must bring

the issue “to the attention of the trial court [so] that the court [is]

given an opportunity to rule on it.” Dill v. Rembrandt Grp., Inc.,

2020 COA 69, ¶ 24 (quoting Berra v. Springer & Steinberg, P.C., 251

P.3d 567, 570 (Colo. App. 2010)).

¶ 37 “We review preserved claims of prosecutorial misconduct

under the nonconstitutional harmless error standard.” People v.

Walker, 2022 COA 15, ¶ 28. “Under the nonconstitutional

harmless error test, the defendant bears the burden of showing

prejudice from the error.” People v. Short, 2018 COA 47, ¶ 54. And

to “obtain reversal, the defendant must establish a reasonable

probability that the court’s error contributed to his conviction,”

meaning that there must be a “probability sufficient to undermine

confidence in the outcome of the case.” Id. (quoting People v.

Casias, 2012 COA 117, ¶¶ 62-63).

16
2. Opening Statement Analysis

¶ 38 The People argue that McNeal failed to preserve his objection

because counsel did not specifically argue that the statement

constituted prosecutorial misconduct. We disagree.

¶ 39 Recall that the court had drafted a specific statement to

explain the delay in identifying McNeal as suspect. Specifically, the

court allowed the prosecution to elicit evidence that “[a] subsequent

investigative lead obtained in May 2022 led law enforcement to

identify Mr. McNeal as a suspect in this case.” (Emphasis added.)

¶ 40 During opening statements, however, the prosecution stated:

“Over a year later, police are able to[,] through a separate

investigation[,] identify the name Treneil McNeal as the third

suspect in this case.” (Emphasis added.) McNeal’s counsel asked

to approach the bench outside the hearing of the jury.

¶ 41 At the bench conference, defense counsel clearly stated that

the statement made by the prosecutor did not accurately track the

court’s approved statement, having used the word “separate” rather

than “subsequent.” Although McNeal’s counsel did not expressly

use the phrase “prosecutorial misconduct,” we conclude that this

17
was the clear substantive basis for the objection, such that the trial

court was alerted to the contention. Berra, 251 P.3d at 570.

¶ 42 During the bench conference, McNeal’s counsel proposed two

ways by which the court could address the misstatement. First,

counsel proposed that he be allowed during his opening statement

to say that McNeal’s identity was obtained through a subsequent

lead. Second, counsel suggested that the court could read the

correct statement in a “jury instruction as a stipulation or

something couched that way.”

¶ 43 The court then stated it would permit McNeal’s counsel to say

that the identification of McNeal was made through a subsequent

lead. The court also said that it would give a curative instruction.

Thus, the court granted both remedies requested by McNeal.

¶ 44 Nonetheless, McNeal’s counsel elected not to make a corrective

statement during his opening. Therefore, this omission cannot form

the basis of any error on appeal. Moreover, despite the court’s

expressed willingness to provide a stipulation or curative

instruction, McNeal’s counsel never tendered such a stipulation or

instruction to the court. And McNeal did not object to the trial

court’s failure to provide a stipulation or curative instruction, so

18
any error associated with that omission is reviewable only for plain

error.

¶ 45 During the trial, the prosecution did not introduce any

testimony that referenced a subsequent investigation. To the

contrary, one of its witnesses — consistent with the court’s allowed

statement — referred to the identification of McNeal through a

“subsequent investigative lead.” Nor did the prosecution argue in

closing that the identification of McNeal was attributed to a

separate investigation.

¶ 46 A plain error must be obvious and substantial. See Hagos,

¶ 14. Given defense counsel’s decision not to further address the

issue during his opening statement, the subsequent “correct”

characterizations by the testifying officer, and defense counsel’s

failure to tender a stipulation or request a curative instruction, we

cannot say that the failure to give the instruction was obvious or

substantial. Thus, we discern no plain error.

D. Cross-Examination of Rickey

¶ 47 McNeal next argues that the trial court abused its discretion

when it did not permit his counsel to pursue two lines of

19
questioning concerning statements Rickey made to police officers.

We disagree.

1. Standard of Review

¶ 48 We review a trial court’s decision to admit or exclude evidence,

including whether testimony calls for hearsay, for an abuse of

discretion. People v. Jackson, 2018 COA 79, ¶ 47, aff’d on other

grounds, 2020 CO 75. A trial court abuses its discretion when its

ruling is “manifestly arbitrary, unreasonable, or unfair, or based on

a misunderstanding or misapplication of the law.” People v.

Heredia-Cobos, 2017 COA 130, ¶ 6. “‘Hearsay’ is a statement other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted.” CRE 801(c).

2. Hearsay Analysis

¶ 49 During her direct examination, Rickey testified that she heard

the gunshots that killed Hopkins but did not see Price or McNeal at

that moment and was not with them. She also admitted on direct

examination that she was untruthful in responding to investigators

during her first three interviews.

20
¶ 50 The prosecution identified two lines of questioning that it

thought McNeal might explore on cross-examination, and the court

determined they both called for hearsay. As a result, the court did

not permit McNeal to inquire whether:

(1) Powell asked Rickey if she would store a gun in her car

before Price shot Hopkins;

(2) Rickey stated to Detective Sandoval that she called

Hopkins and warned him that Price and Powell had a

gun.

¶ 51 We address each contention in turn.

a. Powell’s Question: Storing a Gun

¶ 52 McNeal argues that he should have been allowed to question

Rickey whether Powell had asked her to store a gun in her car

because, he contends, the question is not hearsay. His argument

that the question is not hearsay rests on the proposition that an

“assertion” can never be a question. We disagree.

¶ 53 There is no rule or exception stating that a question cannot be

an assertion. Colorado courts have not definitively decided whether

a question can be a statement for purposes of a hearsay analysis.

But a division of this court has previously discussed whether a

21
conditional sentence may qualify as hearsay. Phillips, ¶ 105. A

conditional sentence is one that gives a demand and lays out a

consequence if the demand is not met. Id. at ¶¶ 102-105. In

Phillips, the division determined that the statement at issue was not

a statement for the purposes of hearsay because a command or

instruction does not inherently contain a “truth” that can be

asserted. Id.

¶ 54 Following that logic, we assess whether the question Powell

asked Rickey contained an assertion. Id.; see also People v. Vigil,

2024 COA 72, ¶ 28 (“The rule against hearsay encompasses not

only verbatim out-of-court statements, but also implied hearsay or

testimony that raises an inference of out-of-court statements.”);

United States v. Summers, 414 F.3d 1287, 1300 (10th Cir. 2005)

(“[A] question may . . . constitute an assertion within the meaning of

[Fed. R. Evid.] 801(a) and (c).”). If the question does contain an

assertion, we must also inquire whether the assertion falls within a

hearsay exception. If the question does not contain any assertion

that is offered for the truth of what it asserts, then the question is

not hearsay and may be admitted. See United States v. Lewis, 902

F.2d 1176, 1179 (5th Cir. 1990) (concluding that the question,

22
“Where is Dog [the defendant’s nickname]?” did not contain an

assertion and is therefore not hearsay).

¶ 55 Unlike a conditional statement, which states a potential future

action, the question, “Will you keep this gun in your car for me?”

does contain an assertion — namely, that the person to whom the

question is attributed has a gun. Counsel’s clear motivation for

asking Rickey whether Powell had asked her to store a gun in her

car was to establish that someone other than McNeal had a gun,

which could have been used to kill Hopkins. Because the assertion

within the question was offered to prove its truth, the question falls

within the definition of hearsay.

¶ 56 McNeal argues that the question concerning whether Powell

had asked Rickey to store a gun was not offered to prove the truth

of the matter asserted, but rather to show its effect on Rickey. But

Rickey’s state of mind was not relevant to the issues the jury was

asked to decide. Relatedly, McNeal argues that the question was

relevant to explain why Rickey was dishonest in her prior

statements to law enforcement. But Rickey had already admitted

that she was dishonest in her three prior interviews, and McNeal

23
offers no explanation why her reason for being dishonest was

relevant to his defense.

¶ 57 For these reasons, we perceive no error in the trial court’s

determination that Powell’s question to Rickey was inadmissible

hearsay.

b. Phone Call to Hopkins

¶ 58 Rickey had four interviews with Detective Sandoval. She

admitted that she lied to Sandoval during the first three. In her

final statement to Sandoval, Rickey indicated she had called

Hopkins to warn him that Price and Powell had a gun. That

statement was not elicited during her direct examination.

¶ 59 McNeal’s counsel stated he intended to inquire whether Rickey

told Sandoval that she called Hopkins to warn him that Powell and

Price had a gun. This question also contains an assertion: Powell

and Price had a gun. See Summers, 414 F.3d at 1300. McNeal

nevertheless argues that question was not hearsay because it

related to her dishonesty during her first three statements to

Sandoval.

¶ 60 McNeal seems to imply an impeachment purpose for eliciting

Rickey’s testimony — she said one thing to Sandoval and is now

24
testifying to something different. If Rickey’s testimony at trial

concerning the alleged phone call to Hopkins had been materially

different from her interview with Sandoval, then the use of her

previous statements for impeachment purposes would have

arguably been permissible under CRE 801(d)(1) (“A statement is not

hearsay if . . [t]he declarant testifies at the trial . . . and is subject to

cross-examination concerning the statement, and the statement is .

. . inconsistent with the declarant witness’s testimony. . . .”).

However, Rickey acknowledged at trial that she was dishonest with

Sandoval in three previous interviews. And she did not testify at

trial that she had not called Hopkins to warn him that Powell and

Price had a gun. Thus, there is no support for McNeal’s argument

that he should have been permitted to elicit the statement for

impeachment purposes.

¶ 61 Next, McNeal argues that the statement was admissible

because “it was Rickey’s own statement, and the [prosecution]

would have had an opportunity on redirect examination to question

Rickey about her making that statement.” But out-of-court

statements made by a testifying nonparty are generally deemed

hearsay and are therefore not admissible unless they are excluded

25
from the hearsay definition, see CRE 801(d), or fall within a hearsay

exception, see CRE 803(1)-(23); CRE 804(b)(1)-(4); CRE 807.

McNeal cites no authority that would support a conclusion that

Ricky’s out-of-court statement to Sandoval concerning her phone

call to Hopkins falls outside the definition of hearsay or within a

hearsay exception. We therefore decline to address it further.

¶ 62 For these reasons, we conclude that the trial court did not err

by ruling that Rickey’s prior statement to Sandoval was

inadmissible hearsay. It necessarily follows that Rickey’s argument

that the trial court’s ruling deprived him of his constitutional right

to a defense also fails. See People v. Conyac, 2014 COA 8M, ¶ 91

(the limits of cross-examination are matters within the trial court’s

sound discretion, and absent an abuse of that discretion we will not

disturb the trial court’s ruling).

E. Calling Price to Testify

¶ 63 McNeal next argues that the trial court erred when it

permitted the prosecution to call Price as a witness, knowing he

would exercise his Fifth Amendment right to remain silent. We

agree that the court erred but determine that the error was

harmless.

26
1. Preservation and Waiver

¶ 64 The People argue that McNeal did not object to Price being

called as a witness despite knowing he would invoke his Fifth

Amendment right to remain silent and therefore did not preserve

the issue. Moreover, the People argue that McNeal waived the claim

because he “agreed with the procedures that the trial court

followed” before Price was called to the witness stand.

¶ 65 Waiver is the “intentional relinquishment or abandonment of a

known right” and occurs “when a defendant specifically removes

claims from the trial court’s consideration.” McGill v. DIA Airport

Parking, LLC, 2016 COA 165, ¶ 12 (first quoting U.S. v. Olano, 507

U.S. 725, 733 (1993); and then quoting People v. Rediger, 2018 CO

32, ¶ 54).

¶ 66 We disagree with the People’s argument that McNeal waived

this contention. Before Price’s testimony, McNeal’s counsel objected

to him being called to the stand because it was clear Price would

invoke his right to remain silent. The court overruled that

objection.

¶ 67 As the People note, when the court and counsel discussed how

the court would advise Price that he was being granted use

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immunity with respect to his testimony, McNeal’s counsel agreed to

some of the proposed procedures. But in doing so, he did not waive

his prior objection. Indeed, when the procedures were being

discussed, McNeal’s counsel stated, “I feel like I have to object to

preserve an issue,” and “I’ve been objecting to this whole process

the whole time.” Given this clear language, we reject the People’s

contention that McNeal waived or failed to preserve this issue.

2. Standard of Review and Applicable Law

¶ 68 The parties dispute the applicable standard of review. We

need not resolve the dispute because, even assuming we review for

an abuse of discretion, as the People contend, we conclude that the

court abused its discretion by allowing the prosecution to call Price,

knowing that he intended to invoke his right to remain silent.

¶ 69 Generally, the prosecution may not call a witness to testify if it

knows the witness will invoke their right to remain silent. People v.

Newton, 940 P.2d 1065, 1067 (Colo. App. 1996) (Newton I), aff’d in

part, 966 P.2d 563 (Colo. 1998) (Newton II), abrogated on other

grounds by, Nicholls v. People, 2017 CO 71. “The rationale for the

rule is that, because of the high courtroom drama and odium

surrounding a claim of privilege, questioning of a witness asserting

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[a Fifth Amendment protection against self-incrimination] before the

jury has the effect of prejudicing the accused by creating an unfair

inference of guilt.” Newton I, 940 P.2d at 1067. Thus, “[i]f the court

finds that the claim of privilege [is] invalid, it should consider

contempt penalties against the witness, rather than allowing

questioning that could be prejudicial to the defendant.” Id.

¶ 70 When evaluating the harm associated with allowing the

prosecution to improperly call a witness who invokes their Fifth

Amendment rights before the jury, we look at the totality of the

circumstances. Newton II, 966 P.2d at 570. There are four factors

we consider: (1) the prosecution’s intent in calling the witness;

(2) the number of questions the prosecutor asked the witness;

(3) the witness’s importance to the prosecution’s case; (4) whether

the prosecutor draws any inference in closing argument from the

witness’s refusal to answer the question; and (5) whether the court

gave a curative instruction. Id.

3. Analysis

¶ 71 Before Price was called to testify at trial, the court and parties

addressed McNeal’s objections. Initially, the court acknowledged

that it is generally impermissible to call a witness to testify knowing

29
they will invoke their Fifth Amendment rights. But the court was

also attempting to address what it believed it was required to do

under the supreme court’s then-recent decision in Rios-Vargas v.

People, 2023 CO 35.

¶ 72 In Rios-Vargas, the supreme court addressed the

circumstances in which a defendant may be permitted to call an

alternative suspect to testify, knowing that they will invoke their

Fifth Amendment rights. Id. at ¶ 4. The court concluded that the

defendant should have been permitted to call the alternate suspect,

and the jury should have been permitted to hear the alternate

suspect invoke the Fifth Amendment, subject to the detailed

procedures noted in the opinion. Id.

¶ 73 The trial court appeared to draw on Rios-Vargas in deciding to

permit the prosecution to call Price to the witness stand. But Rios-

Vargas is clearly distinguishable. It addresses the procedures that

must be followed when a defendant elects to call an alternate

suspect to testify, knowing that the witness will invoke their right to

remain silent. But here it was the prosecution that intended to call

Price. As Rios-Vargas makes clear, the procedure it mandates

applies only when a defendant seeks to call a witness who will

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invoke their Fifth Amendment rights. See id. at ¶ 4 (“We now hold

that a defendant is entitled to question a nonparty alternate

suspect in the jury’s presence under the circumstances and

procedures set forth in this opinion.”).

¶ 74 The supreme court clearly did not intend the rules announced

in Rios-Vargas to apply to witnesses called by the prosecution. See

id. at ¶ 5 (“In practice, our holding today will apply in relatively

narrow circumstances.”). Indeed, to do so would eviscerate the

prophylactic purposes of the bar prohibiting the prosecution from

engaging in such practices. Thus, the trial court erred by applying

the Rios-Vargas procedures in this case.

¶ 75 We turn now to the four Newton II factors to determine if the

error warrants reversal.

¶ 76 The prosecution’s stated intent in calling Price was to have

him identify himself in the video footage from Coors Field. This

explanation is thin, at best. The prosecution had already called

several witnesses who worked with Price at the concession stand

and identified him as one of the men in the video. Because the

identification had already come from other witnesses, this was not a

compelling reason for the prosecution to call Price to testify. And

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doing so created the odium and “high courtroom drama” that the

prohibition is intended to avoid. This factor weighs on the reversal

side of the scale.

¶ 77 But once Price was at the witness stand, the prosecutor only

attempted to ask him one question: his name. This favors a

conclusion that the error was not reversible because the prosecutor

did not ask any additional questions after Price refused to testify.

The prosecutor also did not rely in closing argument on Price’s

invocation of his Fifth Amendment rights to draw any inferences

prejudicial to McNeal. This factor also weighs against reversal.

¶ 78 The court did not give any instruction concerning Price’s

testimony. But McNeal did not submit an instruction or ask the

court to do so when the instructions were discussed. This factor is

therefore neutral.

¶ 79 That leaves Price’s importance as a witness to the

prosecution’s case, which was low. Recall that Price had already

been identified as the man in the video several times, by multiple

people. And critically, Price’s invocation of his right to remain silent

suggested that he was the one who shot Hopkins. That did not

prejudice McNeal. Indeed, McNeal’s theory of defense was that

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Price was the shooter and that he did not supply the gun or

otherwise aid in the murder.

¶ 80 Considering the totality of the circumstances, we conclude

that the error does not warrant reversal.

F. Exhibits 67-69

¶ 81 Lastly, McNeal argues that the trial court erred when it

overruled his hearsay objection to the prosecution’s Exhibits 67, 68,

and 69. Exhibit 67 is the time-stamped record of McNeal’s GPS

data on the day of the Coors Field shooting provided by Attenti, a

company that the county uses to provide location data generated by

GPS ankle monitors. Exhibits 68 and 69 are aerial maps with data

points plotted from the information in Exhibit 67. At trial, McNeal

argued that these exhibits were hearsay. The trial court overruled

his objection and admitted the exhibits.

¶ 82 For the first time on appeal, McNeal also argues that the trial

court violated his Sixth Amendment rights by not allowing him to

confront the witness who created the GPS records.

1. Standard of Review

¶ 83 We review McNeal’s Sixth Amendment claim for plain error,

because, although he preserved his hearsay claim, he did not

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preserve the Sixth Amendment claim. People v. Sparks, 2018 COA

1, ¶ 29. Under plain error review, we reverse only if there was

obvious and substantial error that raises serious doubt about the

reliability of the conviction. Hagos, ¶ 14. We review McNeal’s

preserved hearsay objection for an abuse of discretion.

2. Analysis

¶ 84 At trial, the prosecution called Shawn Boston, McNeal’s

pretrial services supervisor, to address Exhibits 67, 68, and 69.

Exhibit 67 was a list of GPS location data from McNeal’s ankle

monitor on the night of the Coors Field shooting. Exhibits 68 and

69 were images of the relevant area, with the GPS coordinates

plotted on the map as pinpoints. Boston testified that Exhibit 67

reflected what he and other pretrial employees were able to access

when checking a person’s location data. The prosecutor created

both Exhibits 68 and 69 using Google Maps and the coordinates in

Exhibit 67.

¶ 85 Boston testified that he had placed the ankle monitor on

McNeal, and that he regularly accessed the records, kept by Attenti,

as part of his work. The prosecution elicited the following testimony

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from Boston to lay a foundation for admission of the exhibits under

the business records exception to the hearsay rule:

Q: Okay. Do you at Pretrial Services, or you
personally, maintain all of these records, or do
you have to go outside to Attenti to get them?

A: Through my computer at work, I get the
records through there, through Attenti.

Q: Is it like a cloud software? Do you know?

A: I do not know that.

Q: Okay. Does Pretrial Services create the
technology that Attenti uses?

A: No, we do not.

Q: Does Pretrial Services create any GPS
technology that is here on Exhibit 67?

A: No, we do not.

Q: Does Pretrial Services maintain these
records on behalf of Attenti?

A: We go through Attenti to get all the records,
sir.

....

Q: I guess I’m just trying to figure out where —
where are these records stored? You say
they’re in your computer. I understand that.

A: Right.

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Q: But my question is: Are they your records,
or are they — “you” being Pretrial Services —
or are they Attenti’s records?

A: They’re Attenti’s records, sir.

Q: Thank you very much.

¶ 86 McNeal then objected to admitting the three exhibits on

hearsay grounds. Specifically, he argued that Boston could not

provide a foundation under CRE 803(6), the business records

exception, because he was not the custodian or creator of the

records. The court overruled McNeal’s objection.

¶ 87 McNeal renews his hearsay objection on appeal, again arguing

that Boston was not qualified to lay a foundation for the records.

The People argue that the records are not hearsay, and even if they

were, Boston laid an adequate foundation.

¶ 88 We acknowledge that the question of when and how a

document produced by a computer may be treated as hearsay is

fluid. As a division of this court has explained:

Even if the prosecutor introduced the [r]eports
into evidence to prove the truth of their
contents, the [r]eports would not be hearsay if
a machine generated them automatically.
Such records are not hearsay because no
“person” or “declarant” made a communicative
“statement” within the meaning of CRE 801.

36
....

A computer-generated record constitutes
hearsay, however, when its creation involves
human input or interpretation.

People v. Hamilton, 2019 COA 101, ¶¶ 24, 26.

¶ 89 We agree with the reasoning in Hamilton that a computer

report generated without human input does not meet the definition

of hearsay because the computer is not a “person” or “declarant”

with regards to its computer-generated output.2 Id.; see also People

v. Abad, 2021 COA 6, ¶¶ 54-55 (noting that computer extraction

reports generated without human intervention are not statements

made by a declarant and therefore are not hearsay).

¶ 90 We also recognize that, at a theoretical level, all computer

outputs are human generated in the sense that the lines of code

and the resulting computer programs and functions are written and

developed by humans. To be clear, we are not saying that simply

because information is communicated via a digital platform or is

2 We acknowledge that these issues are evolving with technological

advances and may be particularly impacted by the advent of
generative artificial intelligence software.

37
otherwise created by a machine automatically means the output

falls outside the definition of hearsay.

¶ 91 But where the evidence in question is data that has been

generated by a transmitting device sending a signal to a machine

and software, without active human intervention, we conclude that

there is no declarant, and the record is not hearsay. See CRE 801.

Therefore, such evidence is admissible — absent a separate

evidentiary bar — without the need to establish a hearsay

exception.

¶ 92 The GPS data from McNeal’s ankle monitor falls into this

category. The data was collected automatically by a machine,

without human intervention. The data was retrieved only by

searching for a specific date range. Therefore, the GPS data from

McNeal’s ankle monitor was not hearsay and was admissible. See

Commonwealth v. Wallace, 289 A.3d 894, 904 (Pa. 2023)

(concluding that GPS location data is not an assertion made by a

person, but rather, data collected electronically by a GPS

monitoring device and is therefore not hearsay); People v. Rodriguez,

224 Cal Rptr. 3d 295, 314 (Ct. App. 2017) (same); United States v.

Lizarraga-Tirado, 789 F.3d 1107, 1109 (9th Cir. 2015) (“A tack

38
placed by the Google Earth program and automatically labeled with

GPS coordinates isn’t hearsay.”).

¶ 93 Exhibits 68 and 69 are derivative of Exhibit 67 and did not

involve substantial human input or modification. The prosecutor

represented to the court that he entered the coordinates provided

by Exhibit 67 into the Google Maps program, which then generated

the coordinates with a “pin” to visually depict where the coordinates

were on the map. Although the prosecutor facilitated this process,

his actions were akin to entering numbers into a calculator and

showing the jury the resulting calculations. Therefore, because

Exhibits 68 and 69 were simply derivative of the data in Exhibit 67,

they too were not hearsay.

¶ 94 Accordingly, we conclude — albeit on different grounds than

the trial court — that Exhibits 67, 68, and 69 were admissible.

¶ 95 For these same reasons, McNeal’s unpreserved Sixth

Amendment claim fails. See People v. Smalley, 2015 COA 140, ¶ 28

(“[T]he Confrontation Clause does not apply to nonhearsay

statements.”)

III. Disposition

¶ 96 The judgment of conviction is affirmed.

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JUDGE FOX and JUDGE HARRIS concur.

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