People v. Hill
| Decision Date | 25 June 2009 |
| Docket Number | No. 07CA2171.,07CA2171. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Edwin HILL, Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Carol Chambers, District Attorney, Andrew Cooper, Senior Deputy District Attorney, Centennial, Colorado, for Plaintiff-Appellant.
Douglas K. Wilson, Colorado State Public Defender, John D. Becker, Deputy State Public Defender, Castle Rock, Colorado, for Defendant-Appellee.
Opinion by Judge CARPARELLI.
The People appeal from the district court's order vacating defendant Edwin Hill's judgment of conviction and sentence and granting him a new trial for unlawful use of a controlled substance. We reverse the district court's order and remand with directions.
Defendant, a prisoner at the Limon Correctional Facility, provided a urine sample that tested positive for morphine. He was charged with possession and use of a controlled substance.
At a status conference twenty-five days before trial, defense counsel stated that he had told the People that defendant wanted the laboratory technician who did the testing to testify at the trial. The prosecutor took no exception to the request, and the court stated that the People had notice that defendant had requested the "actual technician" who did the testing. This was a timely request under section 16-3-309(5), C.R.S.2008, which requires the party requesting the laboratory's employee or technician to notify the other party and the witness of this request at least ten days before trial.
At trial, Dr. Andrew Fischinger, the testing laboratory's director, was qualified as an expert and testified that the urine sample had tested positive for morphine. Defendant stipulated to the witness's qualifications as an expert. He objected, however, to the admission of laboratory chain of custody documents and to data and graphs (GC/MS report) produced by a gas chromatograph/mass spectrometer (GC/MS). Dr. Fischinger testified that the GC/MS report showed that defendant's urine sample tested positive for morphine. The court overruled the objections.
A jury found defendant not guilty of possession, but guilty of use of a schedule II controlled substance under section 18-18-401(1)(a)(I), C.R.S.2008. Defendant moved for a new trial, asserting that Dr. Fischinger was not "the actual lab technician who did the testing," and, thus, was not the proper person to testify under section 16-3-309(5).
The court conducted a hearing, and granted the motion, concluding the laboratory report was not admissible. In its order, the trial court stated that Dr. Fischinger's involvement was limited to reviewing a report containing initials of others who performed preparatory work and the computer-generated results of analysis. The court concluded that, because Dr. Fischinger did not handle the specimen for identification or prepare it for analysis, he was not able to provide personal knowledge of the steps actually taken before and during the course of testing.
The People appeal.
The decision to grant or deny a new trial is generally entrusted to the trial court's discretion. People v. Gallagher, 194 Colo. 121, 124, 570 P.2d 236, 238 (1977). However, where, as here, the ruling is based on a question of law, we review de novo. People v. Wadle, 77 P.3d 764, 767 (Colo.App.2003), aff'd, 97 P.3d 932 (Colo.2004).
The appropriate construction of a statute is a question of law. People v. Golden, 140 P.3d 1, 4 (Colo.App.2005). We review de novo a trial court's interpretation of a statute governing the admissibility of a particular type of evidence. People v. Williams, 183 P.3d 577, 578 (Colo.App.2007).
When interpreting a statute, our primary duty is to give effect to the intent of the legislature. We look first to the plain language of the statute before invoking alternative canons of statutory construction. People v. Banks, 9 P.3d 1125, 1128 (Colo.2000). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); see also Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006). We read the statute as a whole "to give `consistent, harmonious and sensible effect to all of its parts,'" in accordance with the presumption that the legislature intended the entire statute to be effective. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo.2005) (quoting Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192 (Colo. 2004)). "A statutory interpretation leading to an illogical or absurd result will not be followed." Frazier v. People, 90 P.3d 807, 811 (Colo.2004). We avoid constructions that are at odds with the legislative scheme. Klinger, 130 P.3d at 1031.
Section 16-3-309(5) states:
Any report or copy thereof or 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.
(Emphasis added.)
In People v. Mojica-Simental, 73 P.3d 15, 18-19 (Colo.2003), the supreme court held that when a defendant notifies the prosecution at least ten days before trial that he or she wants the laboratory technician present at trial, the request prevents the admission of the laboratory report without the foundational testimony of the appropriate lab technician. The court stated that when a defendant wants to contest the reliability or accuracy of a lab test, a lab technician's presence is crucial to secure the defendant's right to confront the witnesses against him or her. Mojica-Simental, 73 P.3d at 19.
In Williams, the defendant also requested the presence of the laboratory technician. However, the agent who had tested the suspected controlled substance, identified it as methamphetamine, and prepared the report was not available to attend the trial. In the agent's stead, the prosecution relied on the testimony of the supervisor of the laboratory, who had no personal knowledge of the testing. Based on that testimony, the court admitted the laboratory report as a business record. Williams, 183 P.3d at 579. A division of this court concluded that the trial court abused its discretion when it admitted the lab report without testimony from the testing agent. Williams, 183 P.3d at 578.
Dr. Fischinger testified about testing procedures at trial and at the hearing on the motion for a new trial.
At the trial, Dr. Fischinger testified that defendant's sample was not tested manually by any technician, but was tested by the GC/MS. He stated that another employee prepared a portion of the sample for testing and analysis by the GC/MS. This preparation included adding a buffer to the urine sample, pouring it onto solid-phase extraction (SPE), eluting the SPE, transferring the extract to dry-down, adding a derivatizing agent, and transferring the sample to a vial for the GC/MS. Dr. Fischinger testified that he identified the GC/MS report pertaining to defendant's urine sample and explained that he personally reviewed the information regarding calibration controls to ensure that the instrument was properly calibrated. He then explained that, as a result of his review and analysis of the printed graphs, he concluded that defendant's sample contained morphine, and he connected the test results to defendant based on the laboratory chain of custody documents. Dr. Fischinger testified that he was the only employee at the lab to analyze defendant's sample or to reach a conclusion that the sample contained morphine.
Exhibit 7, entitled "AFFIDAVIT of Certifying Scientist," describes Dr. Fischinger's review and certification of the laboratory testing procedure for defendant's sample, and is signed by Dr. Fischinger and notarized. The affidavit certifies that Dr. Fischinger reviewed the laboratory chain of custody for defendant's specimen and determined the chain of custody was conducted properly. Dr. Fischinger also certified that defendant's urine sample tested positive for the drug indicated on Exhibit 4, a computer generated "CAP-FUDT REPORT" (laboratory report) bearing Dr. Fischinger's printed name. The court overruled defendant's objection that Exhibit 4 was not admissible because Dr. Fischinger did not personally prepare it. Defendant did not object to the admission of Exhibit 7.
At the hearing on the motion for new trial, Dr. Fischinger explained that laboratory employees place a portion of each urine sample into a testing vial, place a bar code on each vial, and put multiple samples into a GC/MS, which analyzes thousands of drug screens per hour. Dr. Fischinger testified that the instrument, not the employee, does the testing and analysis. He also acknowledged that he never handles the samples. After the instrument has completed the tests, an employee removes the test vials and discards them with their contents. The data derived by the GC/MS is printed and includes numeric and graphic information about the test results.
Dr. Fischinger testified that he reviews the printed results to identify vials that appear to have tested positive, and that he reviews those results to ensure that the controls were correct, analyzes the data based on...
To continue reading
Request your trial
-
People v. Robles
...nor does he develop any argument that there was a Brady violation. Therefore, we need not address that issue. See People v. Hill, 228 P.3d 171, 176–77 (Colo.App.2009); People v. Simpson, 93 P.3d 551, 555 (Colo.App.2003). In any event, we perceive no Brady violation. 2. Juror questionnaires ......
-
People v. Cardman, Court of Appeals No. 14CA0202
...it. We do not address conclusory assertions of error presented without argument, analysis, or support. See, e.g. , People v. Hill , 228 P.3d 171, 176–77 (Colo. App. 2009). Our discussion thus is limited to the rules that apply after a suspect has invoked his right to counsel, and we do not ......
-
People v. Allman
...to review constitutional challenge to statute where defendant's brief presented bare and conclusory statements); People v. Hill, 228 P.3d 171, 176 (Colo.App.2009) (same); People v. Simpson, 93 P.3d 551, 555 (Colo.App.2003) (same).2 For example, defendant does not allege that the registratio......
-
Russell v. Raemisch
...a claim because defendant neither articulated a cogent argument for review nor provided supporting legal authority); People v. Hill, 228 P.3d 171, 176 (Colo. App. 2009) (CCA declined to consider issue because defendant failed to adequately present the issue). Although the CCA does not speci......
-
Chapter 6 - § 6.3 • EVIDENCE OF BREATH TESTS
...records exception to the hearsay rule, CRE 803(6). People v. Williams, 183 P.3d 577 (Colo. App. 2007). The second case is People v. Hill, 228 P.3d 171 (Colo. App. 2009). There, the testing lab's director, who never handled the urine sample, was permitted to testify about his lab's results. ......
-
ARTICLE 3 ARREST - SEARCHES AND SEIZURES
...and rendered expert conclusions regarding the identity of the controlled substances present in the sample or specimen. People v. Hill, 228 P.3d 171 (Colo. App. 2009). Lab supervisor's testimony satisfied the requirement of subsection (5) that the laboratory testing technician who accomplish......