Cropper v. People of State

• Decision Date: 25 April 2011
• Docket Number: No. 09SC828.,09SC828.
• Citation: 251 P.3d 434
• Parties: David Lee CROPPER, Petitionerv.The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

251 P.3d 434

David Lee CROPPER, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 09SC828.

Supreme Court of Colorado, En Banc.

March 14, 2011.Rehearing Denied April 25, 2011.

Douglas K. Wilson, Public Defender, Rebecca R. Freyre, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice RICE delivered the Opinion of the Court.

In this case, we review the constitutionality of section 16–3–309(5), C.R.S. (2010), as applied to petitioner, David Lee Cropper.¹ We hold that, based on Hinojos–Mendoza v. People, 169 P.3d 662 (Colo.2007), Cropper waived his confrontation rights and, therefore, the statute was constitutional as applied. Accordingly, we affirm the decision of the court of appeals.

I. Facts and Proceedings Below

After a jury trial, Cropper was convicted of second degree burglary and theft. Pursuant to Crim. P. 16, prior to trial, the prosecution provided Cropper a list of the witnesses that it planned to call at trial as experts in the area of forensic chemistry. Included in the list was a technician who prepared a report showing that a shoe-print left on a door that had been kicked in to obtain entry could have been from the same type of shoe that Cropper was wearing when he was apprehended.² At trial, Cropper objected to the admission of this report because the technician who prepared it was not available to testify due to an out of state family emergency. Cropper contended that introduction of the report without testimony from the technician who prepared it violated his rights of confrontation and cross-examination.

Relying on the procedures set forth in section 16–3–309(5), the trial court found that Cropper had not notified the prosecution within the stated ten-day limit that he wished for the technician to testify and, for this reason, admitted the report. With the aid of supplemental briefing regarding the then recently decided Melendez–Diaz v. Massachusetts, ––– U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the court of appeals upheld the admission of the shoe-print report, holding that Cropper's failure to follow the procedural requirements in section 16–3–309(5) resulted in a waiver of his confrontation rights.

II. Analysis

A. The Right to Confrontation and Section 16–3–309(5)

The Confrontation Clause of the United States Constitution gives a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. Likewise, the Colorado Constitution provides a criminal defendant the right “to meet the witnesses against him face to face.” Colo. Const. art. II, § 16. Although this right is fundamental, it is not without limit, People v. Mojica–Simental, 73 P.3d 15, 19 (Colo.2003), and can be waived, Melendez–Diaz, 129 S.Ct. at 2534 n. 3. A defendant's counsel may waive his client's confrontation right. Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (“the client must accept the consequences of the lawyer's decision to forgo cross-examination”); People v. Curtis, 681 P.2d 504, 511 (Colo.1984) (“[D]efense counsel stands as captain of the ship. ... [D]ecisions committed to counsel include ... whether and how to conduct cross-examination ...” (internal quotations and citations omitted)). And, in some instances, defense counsel's inaction alone is sufficient to constitute a waiver. Melendez–Diaz, 129 S.Ct. at 2534 n. 3. (“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence....”).

The Confrontation Clause is implicated when testimonial hearsay is admitted against a criminal defendant. To comply with the Confrontation Clause, testimonial hearsay may only be admitted if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Both this Court and the United States Supreme Court have determined that forensic lab reports are testimonial hearsay subject to these confrontation clause requirements. Melendez–Diaz, 129 S.Ct. at 2532; Hinojos–Mendoza, 169 P.3d at 666–67. Therefore, for a forensic report such as the shoe-print analysis at issue in this case to be admitted, the defendant must, at some time, have an opportunity to cross-examine the technician who prepared it.

Section 16–3–309(5) recognizes this requirement. It states that:

Any report or copy thereof or the findings of the criminalistics laboratory shall be received in evidence in any court, preliminary hearing, or grand jury proceeding in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person. Any party may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least ten days before the date of such criminal trial.

§ 16–3–309(5) (emphasis added). Based on this statute, a criminal defendant may invoke his confrontation right by notifying the prosecution at least ten days prior to the date of trial that he wishes to exercise his opportunity to cross-examine the technician who prepared the report. Id.

In Mojica–Simental, we found that this procedure does not impose an undue burden on the defendant and adequately protects a defendant's right of confrontation. 73 P.3d at 18–20. Thus, we held that section 16–3–309(5) is constitutional on its face. Id. at 18. But, in dicta, we cautioned that section 16–3–309(5) could be applied unconstitutionally if the defendant's right of confrontation was not waived voluntarily, knowingly, and intentionally. Id. at 20 (citation omitted). Specifically, we stated that there might be a constitutional problem “[i]f a defendant does not have actual notice of the requirements of the statute, or mistakenly fails to notify the prosecution to have the technician present to testify....” Id. at 20–21. We also listed a series of factors that a trial court might consider to determine if there was a valid waiver of the right of confrontation.³ Id.

In Hinojos–Mendoza, we reaffirmed the constitutionality of section 16–3–309(5) and acknowledged that the dicta in Mojica–Simental was misplaced because it was based on the mistaken assumption that a defendant can only waive his right of confrontation if he personally makes a knowing, voluntary, and intentional waiver. 169 P.3d at 669. Instead, we confirmed that defense counsel can waive a defendant's right to confront the technician who prepared a forensic report by not complying with the procedural requirements in section 16–3–309(5), even if the attorney is unaware of the statute or its requirements. Id. at 670 (“where a defendant ... is represented by counsel, the failure to comply with the statutory prerequisites of section 16–3–309(5) waives the defendant's right to confront the witness just as the decision to forgo cross-examination at trial would waive that right”).

In Hinojos–Mendoza, the defendant argued that his right of confrontation was violated when he was denied the opportunity to cross-examine a technician who prepared a lab report that the prosecution entered into evidence. Id. at 664. The defendant's attorney did not follow the requirements set forth in section 16–3–309(5) and failed to request an opportunity for cross-examination before trial because he was unaware of the statute and its procedural requirements. Id. Because of our stated presumption that an attorney knows the applicable procedural rules, we held that defense counsel's failure to request live testimony from the technician was a valid waiver of the defendant's confrontation right even though the attorney did not have actual knowledge of section 16–3–309(5)'s requirements. Id. at 670.

B. Melendez–Diaz and Notice–and–Demand Statutes

In supporting its decision to classify forensic lab reports as testimonial hearsay, the Supreme Court discussed a category of state statutes, which it labeled as notice-and-demand statutes, that provide procedures similar to those in section 16–3–309(5). Melendez–Diaz, 129 S.Ct. at 2540–41. As the Court stated, “[m]any States ... permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution's intent to use a forensic analyst's report.” Id. (citations omitted). It clarified that a “defendant always has the burden of raising [a] Confrontation Clause objection [and] notice-and-demand statutes simply govern the time within which [a defendant] must do so.” Id. at 2541. It then cited Hinojos–Mendoza for the proposition that it is permissible to require a defendant to exercise his Confrontation Clause rights before trial with a parenthetical stating that Hinojos–Mendoza “discuss[ed] and approv[ed of] Colorado's notice-and-demand provision.” Id. Despite its discussion of Hinojos–Mendoza, the Supreme Court did not pass judgment on section 16–3–309(5).⁴

Although Cropper does not bring a facial challenge, he argues that section 16–3–309(5) is different than the notice-and-demand statutes that the Supreme Court discussed favorably in Melendez–Diaz because it does not require that the prosecution give pre-trial notice of its intent to introduce a forensic lab report without live testimony. This difference, Cropper contends, not only makes it incompatible with the dicta from Melendez–Diaz, but also goes against this Court's dicta in Mojica–Simental which stated that:

section 16–3–309(5) might be best utilized if the proponent of the lab report notifies the opposing party that it intends to introduce the lab report without a foundational lab technician witness, unless advised ten days before trial that the witness' presence is...