People v. Santana

• Decision Date: 27 June 2011
• Docket Number: No. 09SC808.,09SC808.
• Citation: 255 P.3d 1126
• Parties: The PEOPLE of the State of Colorado, Petitioner,v.Gonzalo Dalimiro SANTANA, Respondent.
• Court: Colorado Supreme Court

255 P.3d 1126

The PEOPLE of the State of Colorado, Petitioner,

v.Gonzalo Dalimiro SANTANA, Respondent.

No. 09SC808.

Supreme Court of Colorado, En Banc.

June 27, 2011.

John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.Leslie A. Goldstein, Attorney at Law, L.L.C., Leslie A. Goldstein, Steamboat Springs, Colorado, Attorneys for Respondent.Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

In People v. Santana, 240 P.3d 302 (Colo.App.2009), the court of appeals reversed Gonzalo Dalimiro Santana's conviction for distributing a controlled substance, concluding that the prosecution had, in violation of his constitutional rights, shifted the burden of proof to him at trial. In its case-in-chief, the defense called an expert to testify that the prosecution's tests conducted on the substance alleged to be crack cocaine were only screening tests, which did not conclusively show that the substance was crack cocaine. According to the court of appeals, the prosecutor shifted the burden of proof by cross-examining this expert about his ability to perform conclusive tests, establishing that the expert could in fact have run such tests, and then by emphasizing this testimony in closing argument.

We now reverse the judgment of the court of appeals, concluding that the prosecutor did not shift the burden of proof to the defendant. In reaching our conclusion, we find it significant that before the prosecutor questioned the defense's expert about his ability to conduct conclusive tests, defense counsel first introduced evidence of the expert's ability to run such tests, which neither the court of appeals nor appellate counsel mentioned.

II. Background

One evening in January 2007, as part of an undercover operation to discover street-related crime, including the sale of narcotics, a plain-clothes police officer driving around in an unmarked car noticed the defendant standing in a parking lot. When the two made eye contact the defendant nodded, waved, and shouted out, “You want dope?” The officer left the scene, apprised surrounding officers of the situation, turned on his electronic monitoring device, drove back to the parking lot, and again made eye contact with the defendant, who then got into the unmarked car.

The officer asked for $40 worth of crack cocaine, and the two then went to an apartment complex nearby where the defendant said he could get it. At the complex, the officer gave money to the defendant, who went into one apartment and returned with a whitened, colored substance that the officer recognized to be similar in texture and appearance to crack cocaine.

The officer said, “Let me smoke it right here,” to which the defendant said, “Man, I'm real, you know what I'm saying.” The officer then joked with the defendant that he had taken his cut of the cocaine on the way down from the apartment, but the defendant said “no, he takes care of me.” The officer assumed the defendant was referring to the narcotics supplier the defendant had just visited. After driving away from the apartment, the defendant said that he's always at a certain intersection and that the officer should stop to see him again. A few blocks away from the apartment, other officers pulled the car over, subsequently arresting the defendant. Later, the officer conducted a field test on the substance, which tested positive for the presence of cocaine. The officer forwarded the substance to a crime laboratory, which provided a presumptive test result indicating the presence of cocaine.

At trial, the prosecution's sole witness was the undercover officer, who testified about his drug transaction with the defendant. Through the officer, the prosecution entered into evidence, and the jury listened to, the electronic-monitoring-device recordings of the transaction between the defendant and the undercover officer. The prosecution also admitted the crime-laboratory report containing the presumptive test result for the substance the defendant gave to the officer, which indicated the presence of cocaine. On cross-examination, defense counsel admitted evidence of another test—a field test—conducted by the undercover officer, which had also indicated the presence of cocaine.

To challenge these two test results, in his case-in-chief the defendant called his only witness: an expert, qualified in forensic toxicology and analytical chemistry with experience in drug analysis, to testify about the tests' reliability and meaning.

The defendant's expert testified that the officer's and crime-laboratory's presumptive test results were only field tests, screening tests, which may be able to establish that a substance is not an illegal substance, but which cannot definitively show that a substance is an illegal substance. The expert opined that additional testing, like gas or liquid chromatograph mass spectrometry, would be necessary to prove that the substance in this case was actually crack cocaine.

Well before the prosecution cross-examined this expert about his ability to conduct these tests—which the court of appeals believed shifted the burden of proof to the defendant—defense counsel asked questions establishing the expert's testing capabilities. On direct-examination, the expert testified that: (1) he had run conclusive drug tests in the past; (2) his laboratory contained all the equipment necessary to run conclusive drug tests; and (3) generally, his laboratory has the “opportunity” to run conclusive drug tests. Defense counsel also asked whether, based on the evidence submitted by the prosecution, the expert could form an opinion over whether there was “any test performed that would conclusively establish” the presence of cocaine in the substance in this case, and the expert said there was not.

On cross-examination, the prosecutor confirmed that the expert could have run the tests that would have established whether the substance was crack cocaine. Defense counsel objected to this line of questioning, claiming that it shifted the burden of proof, but the court said that it believed the prosecutor was aware that he could not make that argument, because he would then be faced with a motion for mistrial. Later on in the cross-examination, the prosecutor asked the expert if he would have tested the substance to confirm whether the substance was crack cocaine had he been given the opportunity, and defense counsel again objected on burden-of-proof grounds, and this time moved for a mistrial. The trial court denied the motion, stating it would, if necessary, renew its affirmation that the defendant had no burden of proof, but defense counsel never made a request for the trial court to do this.

Before closing arguments, the trial court properly instructed the jury on the defendant's presumption of innocence, and during closing argument, told them that the arguments were not evidence. In his closing argument, the prosecutor told the jury that they should not consider closing arguments as evidence, and then proceeded to discuss the evidence in the case, including the defense's expert witness's testimony. The prosecutor compared the evidence offered by the prosecution with the evidence offered by the defense's expert, stating that all the expert did in this case was to review two documents and say that the substance “wasn't absolutely cocaine.” The expert “didn't tell you about any analysis he did. He didn't tell you about whether he spoke to” the undercover officer or chemist who ran the tests. Defense counsel again objected and moved for a mistrial, which the trial court denied, agreeing with the prosecutor that the statements only commented on the state of the evidence.

In his closing argument, defense counsel explained more than once which party bears the burden of proof. Defense counsel also argued that the state's evidence was “absolutely sloppy if not totally unscientific,” generally bemoaning the “incredible lack of testimony in this case,” and claiming that the prosecution had not called an expert to testify about more conclusive tests possibly conducted because the expert “did not want to share the answer.”

In his rebuttal, the prosecutor did not comment on the defense expert's testimony, focusing instead solely on the transaction between the defendant and the undercover officer, arguing that from that transaction alone, the jury knew the defendant had sold crack cocaine.

The jury convicted the defendant of distributing a controlled substance, which the court of appeals reversed, determining that the trial court should have granted the defendant's motion for a mistrial. Santana, 240 P.3d at 309. First, the court concluded that the prosecutor's questions to the defense's expert witness and subsequent comment in closing argument shifted the burden of proof to the defendant. Id. at 308. Second, the court determined that because constitutional error was involved, the trial court's denial of the motion for mistrial should be reviewed under the constitutional harmless-error standard instead of an abuse-of-discretion standard. Id. at 309. Third, applying the constitutional harmless-error standard, the court held that the error was not harmless beyond a reasonable doubt in part because, on the critical issue of whether the substance was crack cocaine, the evidence was “somewhat thin.” Id. at 308–09. Accordingly, the court ordered a new trial. Id. at 309.

We granted certiorari to assess the court of appeals' determination that the constitutional harmless-error standard of review should apply in this case, as well as its conclusion that the prosecution shifted the burden of proof, requiring a new trial.¹ For the reasons below, we conclude that the prosecution did not impermissibly shift the burden of proof in this case, and that accordingly the trial court did not abuse its discretion in denying the defendant's motion for a mistrial. Hence, we do not consider the...