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People v. Hinojos-Mendoza7/28/2005
JUDGMENT AND SENTENCE AFFIRMED
Rothenberg and Vogt, JJ., concur
Opinion Modified, and As Modified, Petitions for Rehearing DENIED
This opinion has been modified extensively. A complete copy of the new opinion follows.
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, ___ P.3d ___ (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 non-testifying 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)
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