People of The State of Colo. v. SANTANA

• Decision Date: 03 September 2009
• Docket Number: No. 08CA0978.,08CA0978.
• Citation: 240 P.3d 302
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gonzalo Dalimiro SANTANA, Defendant-Appellant.
• Court: Colorado Court of Appeals

240 P.3d 302

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Gonzalo Dalimiro SANTANA, Defendant-Appellant.

No. 08CA0978.

Colorado Court of Appeals,Div. I.

July 23, 2009.

Rehearing Denied Sept. 3, 2009. ^*

COPYRIGHT MATERIAL OMITTED.

John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Leslie A. Goldstein L.L.C., Leslie A. Goldstein, Steamboat Springs, Colorado, for Defendant-Appellant.

Opinion by Judge GABRIEL.

Defendant, Gonzalo Dalimiro Santana, was convicted by a jury of distribution of a controlled substance and was sentenced to four years of probation. We hold that the prosecution improperly suggested to the jury that defendant had an obligation to test the drugs at issue to determine whether they were crack cocaine, and thus placed a burden of proof on defendant. Because we cannot conclude that this suggestion was harmless beyond a reasonable doubt on the facts of this case, we reverse defendant's conviction and remand for a new trial.

I. Background

On January 10, 2007, members of the vice and narcotics unit of the Aurora Police Department conducted an undercover operation in an attempt to contact individuals who might be involved in, among other things, street-level sales of narcotics. During that operation, an undercover officer encountered defendant. After the officer made initial eye contact with defendant, defendant nodded, waved at the officer, and shouted, “You want dope?” The officer left the area and alerted the other members of the operation of his interaction with defendant. He then activated his electronic monitoring device and returned to the area in which he had encountered defendant.

Defendant then approached the officer's car and climbed into it. The officer asked defendant for $40 of crack cocaine, and defendant indicated that he knew of a location where he could get it. Defendant directed the officer to drive to a certain address, at which time defendant took $20 from the officer, entered the house, and returned with a single whitened colored rock that the officer recognized to be similar in texture and appearance to crack cocaine. The officer then gave defendant an additional $20 bill, and defendant went back into the house and emerged with another rock-like substance that appeared, to the officer, to be more crack cocaine. Defendant was then arrested.

Shortly thereafter, a second police officer advised defendant of his Miranda rights. Defendant indicated that he was willing to speak with the officer. The officer then informed defendant that he had been arrested for selling drugs to an undercover officer. Defendant immediately replied, “I'm not the drug dealer. They're inside that house.” Defendant also told the officer that he had purchased crack cocaine from the individuals in the house four times within the week prior to his arrest.

At trial, defendant did not contest that he had participated in the interactions with the undercover officer. Defendant argued, however, that the prosecution had not proved that the rock-like substance was actually crack cocaine. Over defendant's objections, the district court admitted into evidence a report regarding a preliminary chemical analysis performed on the substance. The results of this preliminary field test indicated that the substance was cocaine.

To rebut this evidence, defendant called a chemist as an expert witness to discuss the reliability of this type of field test. The expert testified that field tests of this sort are primarily used to screen out substances that are definitely not drugs, to save the expense and time involved in further, more definitive testing. He stated that the sort of field test used in this case does not prove positively that a substance is a particular drug, but rather it gives a preliminary or presumptive result that it could be a drug. He testified that this type of test is not scientifically valid and that based on the report admitted into evidence in this case, it was not possible to determine within a reasonable degree of scientific certainty whether or not the substance at issue was, in fact, cocaine. Finally, he stated that in order to make a positive determination regarding the composition of the substance, it would be necessary to perform laboratory tests involving mass spectrometry.

During the prosecution's cross-examination of this expert, the prosecutor asked the witness whether he could have performed an analysis on the alleged cocaine in this case. Defendant objected on the ground that the prosecution was improperly suggesting that the defendant had the obligation to do any kind of tests or introduce any kind of proof. The court responded, “Well, I think [the prosecutor] is aware he can't do that, because then he would be faced with a motion for mistrial.”

Minutes later, however, the prosecutor asked the witness whether he had personally performed tests to determine the composition of the alleged crack cocaine. The witness testified that he had not done so. Defendant then moved for a mistrial, noting that this was exactly where he feared the prosecution was going to go. Specifically, defendant argued that the prosecution had improperly suggested that defendant had an obligation to test the alleged cocaine. The court denied the mistrial motion and took no other action regarding this testimony, although it stated, “[I]f necessary I'll renew my affirmation that the defense has no burden in this case, that the burden is solely on the People.”

This testimony was not addressed again until closing arguments, when the prosecution reminded the jury that defendant's expert did not do any analysis of his own, but rather relied exclusively on just a few documents. Specifically, the prosecution argued, “He didn't tell you about any analysis he did.”

At the conclusion of the prosecution's closing argument, defendant made a record regarding the prosecution's “constant inference that the defendant has an obligation to present evidence.” Defendant asserted that the prosecution's argument “clearly put on the defendant the burden of making an analysis or making a statement.” Defendant objected to such perceived burden-shifting and again moved for a mistrial. The court overruled the objection and denied the mistrial motion, finding that the prosecution's argument was merely a comment on the evidence.

The jury found defendant guilty of distribution of a controlled substance. Defendant then filed a motion for judgment of acquittal, which the district court denied. Defendant now appeals his conviction.

II. Motion for Judgment of Acquittal

Defendant contends that the district court erred in denying his motion for judgment of acquittal. Because a finding in favor of defendant on this issue would prohibit the prosecution, under double jeopardy principles, from trying him again, see People v. Sisneros, 44 Colo.App. 65, 67, 606 P.2d 1317, 1319 (1980), we address it first.

Defendant argues that the results of the presumptive test on the alleged cocaine were insufficient to prove, beyond a reasonable doubt, that the substance was, in fact, cocaine. Therefore, he asserts, the evidence was insufficient to support the jury's verdict. We are not persuaded.

When reviewing a motion for judgment of acquittal, the district court must determine whether the defendant's guilt of the crime charged has been established beyond a reasonable doubt. People v. Zaring, 190 Colo. 370, 372, 547 P.2d 232, 233 (1976). The evidence, both direct and circumstantial, is viewed in the light most favorable to the prosecution, and it “must be substantial and sufficient to support the conclusion by a reasonable mind that the defendant is guilty of the crime charged beyond a reasonable doubt.” Id.

Here, the evidence at trial included the following:

• Testimony of the undercover officer that defendant approached him and asked him, “You want dope?” The officer testified that he understood this to mean that defendant either had drugs or knew where the officer could purchase drugs.

• Testimony of the undercover officer that defendant indicated his ability to obtain crack cocaine for the officer's use and that he purported to have done so, accepting money and twice leaving and returning with white, rock-like substances.

• Testimony of the undercover officer that the substances that he received from defendant appeared to be crack cocaine.

• A presumptive field test of the rock-like substances stating that preliminary analyses indicated the presence of cocaine.

Applying the standards set forth above, we conclude that this evidence, viewed in the light most favorable to the prosecution, is sufficient to support defendant's conviction for distribution of a controlled substance, absent other errors requiring reversal. Accordingly, we perceive no error in the district court's denial of defendant's motion for judgment of acquittal.

III. Shifting the Burden of Proof

Defendant next argues that the district court erred in denying his various motions for mistrial, after the prosecution improperly shifted the burden of proof to him. Defendant contends that the prosecution did so when it established with defendant's expert witness that he had not performed tests on the substance alleged to be crack cocaine and when it then emphasized in closing argument the expert's failure to do so. We agree.

“In the absence of a constitutional violation, it is well-established that the decision to grant or deny a motion for a mistrial is directed to the sound discretion of the trial court.” People v. Chastain, 733 P.2d 1206, 1213 (Colo.1987). “A mistrial is a drastic remedy and is warranted only if the prejudice to the accused is too great to be remedied by other means.” People v. Rosa, 928 P.2d 1365, 1372 (Colo.App.1996).

We will not disturb the decision of the district court absent a gross abuse of discretion and prejudice to the defendant. Id. We will, however, reverse the denial of a...