People v. Hinojos-Mendoza, No. 03CA0645.

Docket NºNo. 03CA0645.
Citation140 P.3d 30
Case DateJuly 28, 2005
CourtCourt of Appeals of Colorado
140 P.3d 30
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Oscar HINOJOS-MENDOZA, Defendant-Appellant.
No. 03CA0645.
Colorado Court of Appeals, Div. II.
July 28, 2005.
Rehearing Denied November 10, 2005.
Certiorari Granted August 14, 2006.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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

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

WEBB, J.


Defendant, Oscar Hinojos-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.

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 and honked. The officers contacted defendant, searched his vehicle, and found a plastic bag containing a tape-wrapped block of cocaine under the front seat.

At trial, defendant admitted that he drove to the arranged location, parked, and honked his horn in response to the informant's telephone call. But he asserted that he had done so for the purpose of collecting an outstanding debt from the informant.

Defendant's wife offered some corroborating testimony. Defendant did 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 of cocaine 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 right of an accused to confront the witnesses against him is a fundamental constitutional right included in both the United States and Colorado Constitutions. See U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; Crawford v. Washington, supra; Compan v. People, 121 P.3d 876, 2005 WL 2415958 (Colo. No. 04SC422, Oct. 3, 2004); People v. Fry, 92 P.3d 970 (Colo.2004).

Under the Confrontation Clause, if an out-of-court statement made by a nontestifying witness is testimonial, it may be admitted for truth in a criminal trial only if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, supra; Compan v. People, supra; People v. Fry, supra.

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 demand that the 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

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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 People did not dispute this assertion. The court then overruled defendant's objection and admitted the report.

A. Preservation of Issue

Initially, we do not entertain challenges to the 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)(facial unconstitutionality); People v. Perea, 74 P.3d 326 (Colo.App.2002)(unconstitutional as applied).

Here, defendant did not challenge the constitutionality of § 16-3-309(5), either facially or as applied, in the trial court. Accordingly, we will not address that issue for the first time on appeal.

Under the particular facts presented, we decline to address the People's assertion that defendant's general hearsay objection did not properly preserve a confrontation issue for review.

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

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).

The Crawford majority pointed out that in response to the state's reliance on the hearsay exception for statements against penal interest, the defendant "countered that, state law notwithstanding, admitting the evidence would violate his federal constitutional right to be `confronted with the witnesses against him."' Crawford v. Washington, supra, 541 U.S. at 40, 124 S.Ct. at 1358.

Some Colorado cases construe general hearsay objections broadly. See People v. Harris, 43 P.3d 221, 230 (Colo.2002)(quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980): "The confrontation right and hearsay rules `stem from the same roots' ...."); cf. Blecha v. People, 962 P.2d 931 (Colo.1998). But substantial contrary authority exists. See, e.g., United States v. Solomon, 399 F.3d 1231 (10th Cir. 2005); see also United States v. Chau, 426 F.3d 1318, 2005 WL 2347210 (11th Cir. No. 05-10640, Sept. 27, 2005).

In any event, we need not resolve this question because, even if defendant is entitled to a review under Crawford of the ruling admitting the laboratory report, he is not entitled to relief under Crawford.

B. Crawford v. Washington

We consider the effect of Crawford v. Washington, supra, on the laboratory report and conclude that because the report is nontestimonial, Crawford does not require its exclusion.

Although the Crawford majority 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 majority held that, at a minimum, "testimonial" applies to statements made at preliminary hearings, before grand juries, at a former trial, and during police interrogations.

In Compan v. People, supra, 121 P.3d at 880, the court declined to decide "whether to adopt any or all of these potential categories of testimonial evidence postulated by the Supreme Court [in Crawford]" because the hearsay at issue in Compan did not "fit within them."

The Crawford majority also explained: "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development

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of hearsay law—as does [Ohio v. Roberts, supra], 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.

In People v. Shreck, 107 P.3d 1048, 1060 (Colo.App.2004), a division of this court held that documents showing the defendant's prior convictions were nontestimonial official records "of a type not subject to the requirements of Crawford." Although the division analogized these public records to business records, which it suggested were not within the category of testimonial statements, no Colorado appellate case has expressly decided whether business records are exempt from the requirements of Crawford v. Washington, supra.

A majority of jurisdictions hold that laboratory reports and similar documents are nontestimonial business or public records. See, e.g., People v. Johnson, 121 Cal.App.4th 1409, 18 Cal.Rptr.3d 230 (2004)(laboratory reports routine and nontestimonial documents); Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005)(laboratory report on weight of cocaine a business record); State v. Dedman, 136 N.M. 561, 102 P.3d 628 (2004)(blood alcohol content reports nontestimonial); People v. Brown, 9 Misc.3d 420, 801 N.Y.S.2d 709 (2005)(DNA testing records nontestimonial); People v. Kanhai, 8...

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16 practice notes
  • State v. O'Maley, No. 2006-013.
    • United States
    • Supreme Court of New Hampshire
    • September 5, 2007
    ...to rule that laboratory reports and the like are not testimonial because they constitute business records. See People v. Hinojos-Mendoza, 140 P.3d 30, 37 (Colo.Ct.App. 2005) (laboratory report), cert. granted, 2006 WL 2338141 (Colo. Aug. 14, 2006); Com. v. Verde, 444 Mass. 279, 827 N.E.2d 7......
  • State v. O'Maley, 2006–013.
    • United States
    • Supreme Court of New Hampshire
    • September 5, 2007
    ...to rule that laboratory reports and the like are not testimonial because they constitute business records. See People v. Hinojos–Mendoza, 140 P.3d 30, 37 (Colo.Ct.App.2005) (laboratory report), cert. granted, 2006 WL 2338141 (Colo. Aug. 14, 2006) ; Com. v. Verde, 444 Mass. 279, 827 N.E.2d 7......
  • Hinojos-Mendoza v. People, No. 05SC881.
    • United States
    • Colorado Supreme Court of Colorado
    • September 10, 2007
    ...in the trial court, but did hold that the lab report in this case is nontestimonial hearsay under Crawford. People v. Hinojos-Mendoza, 140 P.3d 30, 37 (Colo.App.2005). The court of appeals further held that the trial court did not err in admitting the lab report without the testimony of its......
  • State v. Laturner, No. 96,086.
    • United States
    • Court of Appeals of Kansas
    • July 27, 2007
    ...Johnson, 121 Cal.App.4th 1409, 1411-13, 18 Cal. Rptr.3d 230, rev. denied (Cal.) November 10, 2004 (lab report); People v. Hinojos-Mendoza, 140 P.3d 30, 35-37 (Colo.App.2005), cert. granted (Colo.), argued May 2, 2007 (appeal pending) (lab report); State v. Musser, 721 N.W.2d 734, 753-54 (Io......
  • Request a trial to view additional results
16 cases
  • State v. O'Maley, No. 2006-013.
    • United States
    • Supreme Court of New Hampshire
    • September 5, 2007
    ...to rule that laboratory reports and the like are not testimonial because they constitute business records. See People v. Hinojos-Mendoza, 140 P.3d 30, 37 (Colo.Ct.App. 2005) (laboratory report), cert. granted, 2006 WL 2338141 (Colo. Aug. 14, 2006); Com. v. Verde, 444 Mass. 279, 827 N.E.2d 7......
  • State v. O'Maley, 2006–013.
    • United States
    • Supreme Court of New Hampshire
    • September 5, 2007
    ...to rule that laboratory reports and the like are not testimonial because they constitute business records. See People v. Hinojos–Mendoza, 140 P.3d 30, 37 (Colo.Ct.App.2005) (laboratory report), cert. granted, 2006 WL 2338141 (Colo. Aug. 14, 2006) ; Com. v. Verde, 444 Mass. 279, 827 N.E.2d 7......
  • Hinojos-Mendoza v. People, No. 05SC881.
    • United States
    • Colorado Supreme Court of Colorado
    • September 10, 2007
    ...in the trial court, but did hold that the lab report in this case is nontestimonial hearsay under Crawford. People v. Hinojos-Mendoza, 140 P.3d 30, 37 (Colo.App.2005). The court of appeals further held that the trial court did not err in admitting the lab report without the testimony of its......
  • State v. Laturner, No. 96,086.
    • United States
    • Court of Appeals of Kansas
    • July 27, 2007
    ...Johnson, 121 Cal.App.4th 1409, 1411-13, 18 Cal. Rptr.3d 230, rev. denied (Cal.) November 10, 2004 (lab report); People v. Hinojos-Mendoza, 140 P.3d 30, 35-37 (Colo.App.2005), cert. granted (Colo.), argued May 2, 2007 (appeal pending) (lab report); State v. Musser, 721 N.W.2d 734, 753-54 (Io......
  • Request a trial to view additional results

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