People v. Rodriguez
| Citation | 508 P.3d 276,2022 COA 11 |
| Decision Date | 13 January 2022 |
| Docket Number | Court of Appeals No. 19CA0529 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Pedro RODRIGUEZ, Defendant-Appellant. |
| Court | Court of Appeals of Colorado |
Philip J. Weiser, Attorney General, Brenna A. Bracket, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE HARRIS
¶ 1 Defendant, Pedro Rodriguez, appeals the judgment of conviction entered after a jury found him guilty of possession with intent to distribute a controlled substance and obstruction of a peace officer.
¶ 2 With respect to his drug conviction, Rodriguez argues, primarily, that the trial court erred by admitting a bag of cocaine allegedly recovered during a traffic stop because the prosecution failed to establish a sufficient chain of custody. With respect to his obstruction conviction, Rodriguez argues that the trial court erred by instructing the jury that it had to follow the law and by permitting prosecutorial misconduct during closing argument.
¶ 3 We agree with Rodriguez's first argument but reject the others. Therefore, we reverse his drug conviction1 and remand for a new trial on that charge, but we affirm the obstruction conviction.
¶ 4 Rodriguez contends that the trial court erred by admitting the bag of cocaine into evidence because the prosecution failed to show a chain of custody and therefore failed to authenticate it. We agree.
¶ 5 The charges against Rodriguez arose from a traffic stop. Rodriguez was a passenger in a car stopped by Officer Chase Gardner.
¶ 6 At some point during the stop, Rodriguez jumped out of the car and ran along the side of the highway. By then, two other officers had arrived to assist with the stop. Officer Gardner and another officer gave chase, and, during the pursuit, Rodriguez threw down a small plastic bag containing a white powdery substance. The officers quickly caught up to Rodriguez and, after they arrested him, Officer Gardner recovered the bag Rodriguez had discarded.
¶ 7 At trial, the prosecution sought to establish that the substance in the plastic bag recovered from the scene was the same substance that a chemist tested and determined was cocaine. Officer Gardner testified that, after he retrieved the bag from the ground, he gave it to Sergeant David Manzanilla at the scene. Officer Gardner described the bag as a "small, clear bag that had a white, powdery substance in it." After giving the bag to Sergeant Manzanilla, Officer Gardner did not see the bag again until he purportedly identified it at trial.
¶ 8 Over defense counsel's "chain of custody" objection, the prosecutor showed Officer Gardner Exhibit 1, a Colorado Springs Police Department (CSPD) evidence bag, and asked Officer Gardner to identify it. Officer Gardner testified that Exhibit 1 contained "[t]he substance I observed in the bag [at the scene]."2
¶ 9 Later, the police chemist testified that he picked up Exhibit 1 from the CSPD evidence section. Exhibit 1 was sealed when he received it. He did not know "who placed the item[ ] in evidence" or where the item "had been prior to" the time he picked it up for testing. The chemist weighed and tested the substance contained in the exhibit bag and determined that it was approximately twenty-eight grams of cocaine. Then he resealed the bag with blue tape, "dated it," "marked it with the case number, item number, and [his] initials," and returned it to the evidence section.
¶ 10 Sergeant Manzanilla did not testify. Rodriguez contends that, as a result, the prosecution failed to establish a sufficient chain of custody for the white powder found at the scene and, therefore, Exhibit 1 was not properly authenticated and should not have been admitted.
¶ 11 We review a trial court's evidentiary rulings for an abuse of discretion. Gonzales v. People , 2020 CO 71, ¶ 25, 471 P.3d 1059. A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. People v. Payne , 2019 COA 167, ¶ 5, 461 P.3d 630.
¶ 12 The People contend that Rodriguez failed to preserve the claim he raises on appeal, but we disagree. Rodriguez objected to Officer Gardner's authentication of Exhibit 1 on the ground that the evidence could not be admitted without establishing a chain of custody, which the prosecution could not do absent Sergeant Manzanilla's testimony. That is the same argument he makes on appeal. Therefore, the claim is preserved. See, e.g. , People v. McFee , 2016 COA 97, ¶ 31, 412 P.3d 848 ().
¶ 13 When a claim is preserved, and does not implicate a constitutional right, we assess whether an error requires reversal under the ordinary harmless error standard. See Pernell v. People , 2018 CO 13, ¶ 22, 411 P.3d 669. An error is harmless under this standard if there is no reasonable probability that it contributed to the defendant's conviction. Id.
¶ 14 Authentication is a condition precedent to the admissibility of evidence. CRE 901(a). The condition is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. "The rationale is that in the absence of showing that the evidence is what its proponent alleges, the evidence is simply irrelevant." United States v. Cardenas , 864 F.2d 1528, 1531 (10th Cir. 1989) ; see also United States v. Branch , 970 F.2d 1368, 1370 (4th Cir. 1992) .
¶ 15 Thus, to prove that Rodriguez possessed cocaine, the prosecution had to introduce evidence sufficient for the jury to find that the substance in the evidence bag marked as Exhibit 1 was the same substance contained in the plastic bag recovered from the scene. See Gonzales , ¶ 27 () (quoting People v. Glover , 2015 COA 16, ¶ 13, 363 P.3d 736 ). Otherwise, the fact that the chemist tested the substance in Exhibit 1 and determined that it was cocaine would be irrelevant. See People v. Valencia , 257 P.3d 1203, 1206 (Colo. App. 2011) ( ).
¶ 16 The People say that Officer Gardner properly authenticated Exhibit 1 by identifying it as the substance that was in the plastic bag that Rodriguez threw on the ground. True, some evidence may be authenticated by testimony that the object is what its proponent claims. When the proffered evidence is "unique, readily identifiable and relatively resistant to change," a witness can authenticate it by identifying the evidence as the item in question. Cardenas , 864 F.2d at 1531 ; see also Edward J. Imwinkelried, Evidentiary Foundations § 4.08 (11th ed. 2020) ().
¶ 17 In People v. Beltran , 634 P.2d 1003, 1004 (Colo. App. 1981), for example, the division concluded that an officer properly authenticated a gun by testifying that the gun was the one he had taken from the defendant at the scene of a shooting. But in that case, the officer also testified that the gun was "the only gun of that type he had seen during his career as a police officer and that he recognized it by the distinctive manufacturer's insignia it bore." Id. ; see also Claxton v. People , 164 Colo. 283, 290-91, 434 P.2d 407, 410-11 (1967) (); People v. Crespi , 155 P.3d 570, 574 (Colo. App. 2006) ().
¶ 18 White powder is not unique, readily identifiable, or resistant to change. Thus, even acknowledging Rule 901 ’s "flexible standard," Gonzales , ¶ 44, Officer Gardner's testimony was not sufficient to support a finding that Exhibit 1 was what the prosecution claimed — the bag of white powder recovered during the traffic stop.
¶ 19 The People say, however, that even if Officer Gardner could not identify the white powder in Exhibit 1 as the same white powder he recovered from the scene, he could nonetheless authenticate Exhibit 1 by relying on the writing or notations on the CSPD evidence bag. But Officer Gardner did not have any personal knowledge of how the substance from the plastic bag recovered at the scene supposedly ended up in Exhibit 1, much less the writing on the evidence bag. So if Officer Gardner had relied on the writing or notations on Exhibit 1 to determine the evidence bag's contents, his testimony would have run afoul of the prohibition against hearsay. See Payne v. Janasz , 711 F.2d 1305, 1313-14 (6th Cir. 1983) (); Commonwealth v. Jones , 472 Mass. 707, 37 N.E.3d 589, 596 (2015) (); Brown v. State , 156...
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