CO: Use of flashbang in raid because def was probably armed was non-hearsay at trial

A warrant-executing officer explaining at trial why they used a flashbang device in the raid said it was because the CI told them defendant often carried a gun. No limiting instruction was sought. This was not hearsay because it wasn’t offered for the truth of the matter asserted. It was offered to show why they used a flashbang. It was never referred to to show guilt in the closing argument. People v. Barajas, 2021COA98, 2021 Colo. App. LEXIS 1022 (July 22, 2021)*:

¶ 53 We need not consider whether the confidential informant’s statements were testimonial because they were not hearsay to begin with. That is, the prosecution did not offer them to prove the truth of the matter asserted — that Barajas carried a gun with him — but instead to justify the aggressive tactics that the police used in executing the search warrant. See Robinson, 226 P.3d at 1151 (“An out-of-court statement offered, not for the truth of the matter it asserts, but solely to show its effect on the listener, is not hearsay.”). Although no limiting instruction was requested or provided, our review of closing arguments confirms that the prosecutor never even mentioned the confidential informant’s statements, much less asserted that the jury should consider them when deliberating about whether the firearm located during the search belonged to Barajas. Accordingly, references to the confidential informant’s statement were nonhearsay and did not implicate Barajas’s confrontation rights.

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