People v. Hinojas-Mendoza, Court of Appeals No. 03CA0645 (CO 7/28/2005), Court of Appeals No. 03CA0645.

CitationCourt of Appeals No. 03CA0645.
Case DateJuly 28, 2005
CourtSupreme Court of Colorado

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The People of the State of Colorado, Plaintiff-Appellee,
Oscar Hinojas-Mendoza, Defendant-Appellant.
Court of Appeals No. 03CA0645.
Court of Appeals of Colorado.
Division II.
July 28, 2005.

Adams County District Court No. 98CR1884, Honorable Donald W. Marshall, Judge, Honorable Thomas R. Ensor, Judge.

Defendant, Oscar Hinojas-Mendoza, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession with intent to distribute one thousand grams or more of a schedule II controlled substance, under a former version of § 18-18-405(3)(a), C.R.S. 2004. Defendant also appeals his sentence of sixteen years in the Department of Corrections (DOC). We affirm.


John W. Suthers, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE WEBB

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According to the People's evidence, a person (informant) who had just been arrested on drug charges agreed to cooperate with the police and arranged through a telephone call made in their presence to purchase a kilogram of cocaine from his supplier, "Oscar." Approximately forty-five minutes later, defendant arrived in a vehicle that had been described by the informant as belonging to his supplier. The police contacted defendant, searched his vehicle, and found a plastic bag containing a tape-wrapped block of cocaine under the front seat.

At trial, defendant testified that he drove to the arranged location, parked, and honked his horn in response to the informant's telephone call, but asserted he had done so for the purpose of collecting an outstanding debt from the informant. Defendant's wife offered corroborating testimony. Defendant did

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not dispute that the police found cocaine in his truck. However, he denied knowledge of the cocaine, explaining that the informant had used his truck the night before. Defendant also argued that the quantity had not been proved beyond a reasonable doubt.

I. Laboratory Report

Defendant first contends that § 16-3-309(5), C.R.S. 2004, which allows laboratory reports to be received in evidence, is unconstitutional on its face and as applied to him because it violates his Sixth Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We disagree.

The Confrontation Clause of the United States Constitution guarantees criminal defendants the right to confront witnesses against them. U.S. Const. amend. VI.

Section 16-3-309(5) allows courts to admit any report or finding of a criminalistics laboratory "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." However, a defendant may request that the

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technician testify in person "by notifying the witness and other party at least ten days before" the trial.

Under this statute, if the defendant does not give pretrial notice, the People may prove an element of the charge using a laboratory report either "by subpoenaing the [technician] and presenting her at trial, or by simply introducing the lab report." People v. Mojica-Simental, 73 P.3d 15, 18 (Colo. 2003); see People v. Moses, 64 P.3d 904, 908 (Colo. App. 2002)("Forensic laboratory reports are admissible in criminal proceedings without establishing the usual foundation, absent a request that the technician be made available at trial.").

Here, the People sought to introduce a laboratory report as to the "tan tape wrapped block containing 1004.5 grams of compress white powder . . . [which when tested] disclosed the presence of cocaine, schedule II." Defendant objected that the report was "a hearsay document." The court asked defense counsel whether he had requested the laboratory technician to testify. Counsel responded that he had not because he was unaware of the notice requirement under § 16-3-309(5). The court then overruled defendant's objection and admitted the report.

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A. Preservation of Issue

Initially, we reject the People's assertion that defendant did not properly preserve this issue for appeal.

If an appeal is taken, the conviction becomes final when the appellate process ends. People v. White, 804 P.2d 247 (Colo. App. 1990).

On the one hand, until a conviction is final, the defendant may raise a challenge based on "a substantial change in the law." People v. White, supra, 804 P.2d at 249; cf. People v. Banks, 924 P.2d 1161 (Colo. App. 1996)(a change of law does not apply to a defendant whose direct appeal ended before announcement of the new case).

On the other hand, generally we do not entertain arguments, especially challenges to the facial constitutionality of a statute, raised for the first time on appeal. People v. Boyd, 30 P.3d 819 (Colo. App. 2001) (citing People v. Cagle, 751 P.2d 614 (Colo. 1988)).

Here, Crawford v. Washington, supra, was decided during the pendency of the appeal, and it overruled prior cases dealing with the Confrontation Clause. Defendant raised a hearsay objection,

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which implicated his confrontation rights. Hence, we conclude that defendant is entitled to seek relief under Crawford.

B. Crawford v. Washington

We consider the effect of Crawford v. Washington, supra, on the statements contained in the laboratory report and conclude it does not require exclusion of the statements.

Testimonial statements of absent witnesses may be admitted in a criminal trial only when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, supra.

Although the Crawford Court declined to "spell out a comprehensive definition of `testimonial,'" Crawford v. Washington, supra, 541 U.S. at 68, 124 S.Ct. at 1374, it quoted Webster's An American Dictionary of the English Language (1828) definition of "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford v. Washington, supra, 541 U.S. at 51, 124 S.Ct. at 1364. The Supreme Court held that, at a minimum, "testimonial" applies to statements made at preliminary hearings, before grand juries, at a former trial, and during police interrogations. See also People v.

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Argomaniz-Ramirez, 102 P.3d 1015 (Colo. 2004); People v. King, ___ P.3d ___ (Colo. App. No. 02CA0201, Jan. 27, 2005); People v. Compan, 100 P.3d 533 (Colo. App. 2004)(cert. granted Oct. 25, 2004).

However, "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does [Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Crawford v. Washington, supra, 541 U.S. at 68, 124 S.Ct. at 1374. The majority added, "Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy." Crawford v. Washington, supra, 541 U.S. at 56, 124 S.Ct. at 1367.

Although the question is undecided in Colorado, other jurisdictions have held that Crawford v. Washington, supra, does not apply to laboratory and scientific reports. See Smith v. State, 898 So. 2d 907 (Ala. Crim. App. 2004)(autopsy reports are business records); People v. Johnson, 121 Cal. App. 4th 1409, 18 Cal. Rptr.

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3d 230 (2004)(laboratory reports are routine and nontestimonial documents); State v. Dedman, 136 N.M. 561, 102 P.3d 628 (2004)(blood alcohol content reports are nontestimonial); People v. Kanhai, ___ N.Y.S.2d ___ (New York City Crim. Ct., May 2, 2005)(breathalyzer test results are regular business records); People v. Durio, 7 Misc. 3d 729, 794 N.Y.S.2d 863 (N.Y. Sup. Ct. 2005)(autopsy reports are business records); Moreno Denoso v. State, 156 S.W.3d 166 (Tex. App. 2005)(autopsy reports are nontestimonial); cf. People v. Butler, 127 Cal. App. 4th 49, 25 Cal. Rptr. 3d 154 (2005)(statements in police report made spontaneously to coworker outside the presence of the police did not violate Crawford v. Washington); Frazier v. State, ___ So. 2d ___ (Miss. Ct. App. No. 2003-KA-02268-COA, Mar. 1, 2005)(pen-packs are nontestimonial); People v. Brown, 5 Misc. 3d 440, 785 N.Y.S.2d 277 (N.Y. Co. Ct. 2004)(statements in presentencing report are nontestimonial). We consider these cases well reasoned and, applying their holdings here, conclude that the lab report in this case was not testimonial.

Under the law applicable to nontestimonial hearsay, defendant's confrontation rights were not violated. At the time of

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his trial, defendant had the right under Ohio v. Roberts, supra, and People v. Dement, 661 P.2d 675 (Colo. 1983), to confront the technician who prepared the laboratory report. Defendant failed to exercise that right by giving pretrial notice under the statute.

Accordingly, we conclude Crawford v. Washington, supra, does not require exclusion of the statements contained in the laboratory report.

C. Facial Unconstitutionality

Defendant next argues that § 16-3-309(5) is facially unconstitutional because it violates his right of confrontation. Notwithstanding defendant's failure to raise facial unconstitutionality below, see People v. Boyd, supra, we entertain this argument, given the magnitude of the Crawford decision, and because it presents a pure legal issue likely to recur in light of Crawford. However, we discern no facial unconstitutionality.

The requirement that a defendant must give notice at least ten days before trial "infringes on a defendant's right of confrontation no more than those minimal requirements" of "being present at trial and standing up and questioning the witnesses." ...

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