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holding that a report was testimonial because its sole purpose was to analyze a substance in anticipation of criminal prosecution
Summary of this case from Campbell v. PeopleOpinion
No. 05SC881.
September 10, 2007. Rehearing Denied November 5, 2007.
Justice Martinez and Justice Bender would grant; Justice Eid does not participate.
Appeal from the District Court, Adams County, Donald W. Marshall and Thomas R. Ensor, JJ.
Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.
In this case we must decide the constitutionality of section 16-3-309(5), C.R.S. (2006), in light of the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Petitioner, Oscar Hinojos-Mendoza, argued in the court of appeals that Crawford rendered section 16-3-309(5) facially unconstitutional, and that the statute is unconstitutional as applied to him. The court of appeals declined to address the facial and as-applied challenges because Hinojos-Mendoza did not raise them 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 author. Id. at 38. We granted certiorari to review the court of appeals' decision. We now reverse in part and affirm in part on other grounds.
We cite to the most recent version of the Colorado Revised Statutes because the text of section 16-3-309(5) is the same as it was at the time of Hinojos-Mendoza's trial.
We granted certiorari on the following two issues:
(1) Whether the court of appeals erred in holding that the statements of a report prepared by a "criminalistics laboratory," for use in the prosecution of drug offenses, are not "testimonial" statements for purposes of Crawford v. Washington, 541 U.S. 36[, 124 S.Ct. 1354, 158 L.Ed.2d 177] (2004). (2) Whether section 16-3-309(5), C.R.S. (2006), is unconstitutional on its face and as applied to petitioner because petitioner did not voluntarily waive his right to confront and cross-examine the criminalistics lab technician.
I. Factual and Procedural History
Hinojos-Mendoza was convicted of unlawful possession with intent to distribute a schedule II controlled substance, cocaine (more than one thousand grams), and sentenced to 16 years in the Department of Corrections. At Hinojos-Mendoza's trial, the People introduced into evidence a Colorado Bureau of Investigation lab report that identifies the substance found in Hinojos-Mendoza's vehicle to be cocaine. The lab report lists Hinojos-Mendoza's name under a section entitled "suspect(s)." The report describes the exhibit at issue as a "tan tape wrapped block containing 1004.5 grams of compressed white powder." Under the "results" section, the report states: "[a]nalysis disclosed the presence of cocaine, schedule II."
§ 18-18-405(3)(a)(III), C.R.S. (2006).
The People introduced the lab report into evidence without calling as a witness the technician who prepared the report. Defense counsel objected to the admission of the report on general hearsay grounds. The trial court asked defense counsel whether prior to trial he had requested that the lab technician appear, and whether he was aware that pursuant to section 16-3-309(5) the lab report could be admitted into evidence without the testimony of the technician. Defense counsel stated he had not requested the lab technician's presence because he was unaware of the statute. The trial court consequently overruled the objection and admitted the report pursuant to section 16-3-309(5).
Subsequent to Hinojos-Mendoza's trial but while his direct appeal was pending, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). On appeal, Hinojos-Mendoza argued that section 16-3-309(5) is facially unconstitutional post- Crawford and unconstitutional as it was applied in his case. The court of appeals declined to address Hinojos-Mendoza's constitutional challenges to the statute because he had not raised those challenges in the trial court. Hinojos-Mendoza, 140 P.3d at 35. The court of appeals did hold, however, that the lab report is nontestimonial hearsay under Crawford. Id. at 37, 124 S.Ct. 1354. The court therefore held the trial court did not err in admitting the lab report. Id. at 38, 124 S.Ct. 1354. We granted certiorari, and now reverse in part and affirm in part on other grounds.
II. Analysis
The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right "to be confronted with the witnesses against him." The Sixth Amendment right to confrontation applies to state as well as federal prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Colorado Constitution also provides that "the accused shall have the right . . . to meet the witnesses against him face to face." Colo. Const. art. II, § 16. This right to confrontation is a fundamental constitutional right. People v. Fry, 92 P.3d 970, 975 (Colo. 2004).
The lab report at issue in this case was admitted into evidence without the testimony of the lab technician who prepared the report, pursuant to section 16-3-309(5), which states in relevant part:
Any report or copy thereof . . . of the criminalistics laboratory shall be received in evidence in any court . . . in the same manner and 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. Any party may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least ten days before the date of such criminal trial.
In 2003, we upheld the facial constitutionality of section 16-3-309(5), concluding that the statute does not violate the right to confrontation guaranteed by the United States and Colorado Constitutions. People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003). We explained in Mojica-Simental that while the right to confront one's accusers is a fundamental constitutional right, it is not without limit. Id. at 20. We held that reasonable preconditions on the exercise of a fundamental right do not abridge that right. Id. We concluded that the burden placed on the defendant by section 16-3-309(5) — to request the presence of the person who prepared the report prior to trial — was minimal and did not render the statute facially unconstitutional. Id.
In 2004, the United States Supreme Court altered its Confrontation Clause jurisprudence in Crawford. The Court held that admission of testimonial statements absent the unavailability of the declarant and a prior opportunity for cross-examination by the defendant violates a defendant's Sixth Amendment right to confrontation. 541 U.S. at 68, 124 S.Ct. 1354; People v. Vigil, 127 P.3d 916, 921 (Colo. 2006). We subsequently adopted the Crawford test as the appropriate inquiry for the admission of testimonial hearsay under Colorado's Confrontation Clause. Compan v. People, 121 P.3d 876, 884 (Colo. 2005); Fry, 92 P.3d at 976.
Hinojos-Mendoza urges us to reconsider the facial constitutionality of section 16-3-309(5) in light of the Supreme Court's decision in Crawford. Hinojos-Mendoza argues that lab reports are testimonial under Crawford, and therefore that section 16-3-309(5) is facially unconstitutional. Hinojos-Mendoza also argues that section 16-3-309(5) is unconstitutional as applied to him. Although the court of appeals did not address these constitutional challenges to the statute, it ruled that the lab report in this case is nontestimonial and therefore Crawford did not require its exclusion. Hinojos-Mendoza, 140 P.3d at 37. We therefore begin our analysis by reviewing the court of appeals' holding that the lab report is nontestimonial, and we reverse.
A. Laboratory Report is Testimonial
One of the many difficult questions that courts have had to grapple with in the wake of Crawford is whether laboratory reports, such as the one at issue in this case, qualify as "testimonial" statements subject to Crawford's requirements for admissibility. The court of appeals concluded that the lab report is nontestimonial, and thus does not implicate Crawford. Hinojos-Mendoza, 140 P.3d at 37. The court of appeals based its analysis in part on its holding that a lab report qualifies as a business record under the Colorado rules of evidence. Id. The court further noted that Hinojos-Mendoza did not dispute at trial that the substance was cocaine but only disputed the weight of the cocaine. Id. Because weighing an incoming substance is "a routine laboratory procedure," the technician who prepared the report would "merely have authenticated the document." Id. (internal quotation omitted). Finally, the court of appeals distinguished cases holding similar lab reports to be testimonial by finding that the report in this case is not an affidavit, was not "prepared at the express direction of the prosecutor for the purpose of litigation," and contains "no directly accusatorial statements against [Hinojos-Mendoza]." Id. We disagree.
Some state courts have held that laboratory reports constitute nontestimonial hearsay after Crawford. See, e.g., Hinojos-Mendoza, 140 P.3d at 36 (collecting cases); Perkins v. State, 897 So.2d 457, 462-65 (Ala.Crim.App. 2004) (autopsy report); People v. Johnson, 121 Cal.App.4th 1409, 18 Cal. Rptr.3d 230, 233 (2004) (lab report analyzing a rock of cocaine); Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701, 706 (2005) (drug certificate); State v. Dedman, 136 N.M. 561, 102 P.3d 628, 635-36 (2004) (blood alcohol report). Many of these courts based their conclusion on dictum in Crawford which suggested that, historically, business records fall outside the scope of testimonial hearsay. 541 U.S. at 56, 124 S.Ct. 1354 ("Most of the hearsay exceptions [in 1791] covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy."); Hinojos-Mendoza, 140 P.3d at 36; Verde, 827 N.E.2d at 706.
These decisions, as well as the court of appeals' opinion in this case, erroneously focus on the reliability of the reports and whether the reports fall within the business or public records hearsay exceptions. See, e.g., Perkins, 897 So.2d at 464 (autopsy report nontestimonial because it fell under a firmly rooted hearsay exception); Johnson, 18 Cal.Rptr.3d at 233 (lab report was simply "routine documentary evidence"); Verde, 827 N.E.2d at 705 ("Certificates of chemical analysis . . . merely state the results of a wellrecognized scientific test. . . ."); Dedman, 102 P.3d at 635 (blood alcohol report admissible as a public record). The Supreme Court in Crawford, however, abrogated reliability as the proper inquiry and divorced Confrontation Clause analysis from the rules of evidence. 541 U.S. at 61, 124 S.Ct. 1354 ("Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of `reliability.'"); see also Thomas v. United States, 914 A.2d 1, 11 (D.C. 2006); State v. March, 216 S.W.3d 663, 665-66 (Mo. 2007). Moreover, Crawford's dictum regarding the historic business records hearsay exception does not mean that any document which falls within the modern-day business records exception is automatically nontestimonial. Thomas, 914 A.2d at 13-14.
We therefore find that the better reasoned cases reject the reliability and business record rationale, and instead hold that laboratory reports are testimonial statements subject to Crawford. See, e.g., Thomas, 914 A.2d at 12-15 (DEA chemist's report identifying substance as cocaine); People v. Lonsby, 268 Mich.App. 375, 707 N.W.2d 610, 618-21 (2005) (notes and lab report of crime lab serologist); State v. Caulfield, 722 N.W.2d 304, 309-10 (Minn. 2006) (lab report identifying substance as cocaine); March,
216 S.W.3d at 665-67 (lab report identifying substance as cocaine); City of Las Vegas v. Walsh, 121 Nev. 899, 124 P.3d 203, 207-08 (2005) (affidavit of registered nurse who completed blood draw); State v. Kent, 391 N.J.Super. 352, 918 A.2d 626, 636-40 (App.Div. 2007) (State Police chemist's lab report and a blood test certificate); State v. Smith, No. 1-05-39, 2006 WL 846342, at *4-5 (Ohio Ct.App. Apr. 3, 2006) (lab reports identifying substance as crack cocaine); State v. Miller, 208 Or.App. 424, 144 P.3d 1052, 1058 (2006) (lab reports identifying the presence of methamphetamine); Deener v. State, 214 S.W.3d 522, 526 (Tex.App. 2006) (chain of custody affidavit and certificate of analysis identifying substance as cocaine).
Turning to the specific lab report at issue in this case, we hold that it is testimonial. The lab report was prepared at the direction of the police and a copy of the report was transmitted to the district attorney's office. There can be no serious dispute that the sole purpose of the report was to analyze the substance found in Hinojos-Mendoza's vehicle in anticipation of criminal prosecution. The report states "offense: 3530 — cocaine — sell" and lists Hinojos-Mendoza as the suspect. Moreover, the report was introduced at trial to establish the elements of the offense with which Hinojos-Mendoza was charged. Under such circumstances, the lab report is testimonial in nature. Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (including in the core class of testimonial statements those made under circumstances "which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") (internal quotation omitted); Thomas, 914 A.2d at 12-13 (same); Caulfield, 722 N.W.2d at 309 (same); March, 216 S.W.3d at 666 ("A laboratory report, like this one, that was prepared solely for prosecution to prove an element of the crime charged is `testimonial' because it bears all the characteristics of an ex parte affidavit."). We therefore reverse the court of appeals and hold that the lab report in this case is testimonial.
We therefore disagree with the court of appeals' statements that 1) nothing in the record shows "the report was prepared at the express direction of the prosecutor for the purpose of litigation," and 2) that the report "contains no directly accusatorial statements against [Hinojos-Mendoza]." Hinojos-Mendoza, 140 P.3d at 37.
The report therefore falls within the definition of "testimony," which is "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. 1354. The fact that this particular report is not a sworn affidavit is not significant. Id. at 52 n. 3, 124 S.Ct. 1354 ("We find it implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK.") (emphasis in original).
B. Section 16-3-309(5)
Our holding that the lab report is testimonial does not determine whether Hinojos-Mendoza's right to confrontation was violated by its admission. The People argue that by failing to request the in-person testimony of the lab technician as provided for in section 16-3-309(5), Hinojos-Mendoza waived his right to confront the technician. Hinojos-Mendoza, however, argues that section 16-3-309(5) is facially unconstitutional post- Crawford; in the alternative, Hinojos-Mendoza argues that the statute is unconstitutional as applied in his case. The court of appeals declined to address these constitutional arguments because Hinojos-Mendoza did not raise them before the trial court, Hinojos-Mendoza, 140 P.3d at 35, and the People urge us to do the same.
We generally will not consider constitutional issues raised for the first time on appeal. People v. Cagle, 751 P.2d 614, 619 (Colo. 1988). Nonetheless, Crawford applies to Hinojos-Mendoza because his case was pending on direct appeal when Crawford was decided. People v. Compan, 100 P.3d 533 (Colo.App. 2004), aff'd, 121 P.3d 876 (Colo. 2005). Given our holding that the lab report in this case is testimonial, Hinojos-Mendoza may be entitled to relief if Crawford rendered section 16-3-309(5) unconstitutional. We therefore exercise our discretion to review these constitutional challenges, particularly in light of the fact that doing so will promote efficiency and judicial economy. People v. Wiedemer, 852 P.2d 424, 433 n. 9 (Colo. 1993).
1. Facial Challenge
We review the constitutionality of statutes de novo. E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo. 2004). Statutes are presumed to be constitutional. Mojica-Simental, 73 P.3d at 18. The party challenging the facial constitutionality of a statute has the burden of showing the statute is unconstitutional beyond a reasonable doubt. Id.
Section 16-3-309(5) requires that at least ten days prior to trial a party — in this case the defendant — request that the lab technician testify, or else the lab report will be admitted without the technician's in-court testimony. Failure to timely request the presence of the lab technician therefore waives the right to confront the technician. Hinojos-Mendoza argues that by admitting testimonial lab reports without a showing of the technician's unavailability and without a prior opportunity for cross-examination, section 16-3-309(5) violates on its face the state and federal Confrontation Clauses. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354.
It is well-established, however, that the right to confrontation can be waived. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Hawkins v. Hannigan, 185 F.3d 1146, 1154 (10th Cir.1999). Waiver is defined as the "intentional relinquishment or abandonment of a known right." United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation omitted). Consequently, there is no appeal from a waived right. United States v. Aptt, 354 F.3d 1269, 1281 (10th Cir.2004). Crawford did not alter the fact that the right to confrontation can be waived.
"The primary purpose of the Confrontation Clause is to secure for a defendant the opportunity of cross-examination." People v. Dist. Court, 869 P.2d 1281, 1287 (Colo. 1994) (emphasis added); see generally Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Assuming the opportunity for confrontation is provided, the right to confrontation is not denied because the prosecution is allowed to present testimony which the defendant chooses not to cross-examine. Dist. Court, 869 P.2d at 1288. In other words, where a defendant chooses not to take advantage of the opportunity to cross-examine a witness, the defendant has not been denied his constitutional right to confrontation. The procedure provided in section 16-3-309(5) for ensuring the presence of the lab technician at trial does not deny a defendant the opportunity to cross-examine the technician, but simply requires that the defendant decide prior to trial whether he will conduct a cross-examination. The statute provides the opportunity for confrontation — only the timing of the defendant's decision is changed.
We have recognized the constitutionality of similar statutory procedural requirements affecting the exercise of other fundamental constitutional rights. For example, a statute requiring a defendant to make a timely pre-trial disclosure of alibi witnesses, or lose the chance to call those witnesses, does not infringe the defendant's constitutional right to call witnesses in his own defense. People v. Hampton, 696 P.2d 765, 774 (Colo. 1985). We have also held that the statutory prerequisites to a jury trial in municipal court of filing a written demand and payment of a fee do not abridge the constitutional right to a jury trial. Christie v. People, 837 P.2d 1237 (Colo. 1992). As we said in Christie, "[t]he requisite . . . demand [for the lab technician to testify] is no more burdensome to a defendant than is making the decision [whether to cross-examine the technician] itself." 837 P.2d at 1244.
We note that other jurisdictions have upheld the post-Crawford constitutionality of statutes similar to section 16-3-309(5). See State v. Cunningham, 903 So.2d 1110 (La. 2005); City of Las Vegas v. Walsh, 121 Nev. 899, 124 P.3d 203 (2005); Brooks v. Commonwealth, 49 Va.App. 155, 638 S.E.2d 131 (2006); cf. State v. Birchfield, 342 Or. 624, 157 P.3d 216, 219-20 (2007) (holding Oregon's statute requiring the defendant to subpoena the lab technician unconstitutional, but stating a demand requirement would be constitutional). But see Caulfield, 722 N.W.2d at 313 (holding that a similar Minnesota statute violates the Confrontation Clause because it does not give the defendant adequate notice that failure to comply with the statutory notice requirement waives the right to confrontation). We find no constitutional infirmity in section 16-3-309(5), and we therefore uphold the facial constitutionality of the statute.
2. As-Applied Challenge
Hinojos-Mendoza relies upon our decision in Mojica-Simental to argue that section 16-3-309(5) is unconstitutional as applied in his case because he did not voluntarily, knowingly, and intentionally waive his fundamental right to confrontation. In Mojica-Simental, we stated in dicta that waiver of the right to confrontation must be voluntary, knowing, and intentional. 73 P.3d at 20. We noted that "[i]f a defendant does not have actual notice of the requirements of the statute, or mistakenly fails to notify the prosecution to have the technician present to testify, there is a significant possibility that a defendant's failure to act may not constitute a voluntary waiver of his fundamental right to confrontation." Id. at 20-21. We suggested a number of factors for a trial court to consider when determining the admissibility of a lab report under section 16-3-309(5), including whether "an attorney or a pro se litigant actually knew that he was required to notify the opposing party of his desire to have the witness present." Id. at 21. Hinojos-Mendoza argues that because his attorney was unaware of section 16-3-309(5)'s procedural requirement, he did not voluntarily waive his fundamental constitutional right to confrontation, and thus, the statute is unconstitutional as applied.
The dicta in Mojica-Simental was based on the faulty premise that the right to confrontation can only be waived if the defendant personally makes a voluntary, knowing, and intentional waiver. 73 P.3d at 20. We cited People v. Curtis, 681 P.2d 504 (Colo. 1984), to support the statement in dicta that waiver of the confrontation right must be voluntary, knowing, and intentional. Id. In Curtis, we held that the right to testify was among "that group of rights so fundamental and personal" as to require "the procedural safeguards concerning voluntary, knowing and intentional waiver . . . established for the right to counsel." 681 P.2d at 511 (emphasis added). We determined that the decision whether to testify had to be made by the defendant personally, not by counsel, and in order to ensure that a waiver of the right to testify is voluntary, knowing, and intentional, trial courts must give defendants a thorough on-the-record advisement. Id. at 513-15.
The fact that relinquishment of the right to testify requires a voluntary, knowing, and intentional waiver by the defendant does not mean that all fundamental constitutional rights are subject to the same requirements. "Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." Olano, 507 U.S. at 733, 113 S.Ct. 1770. The right to counsel, the right to testify, the right to trial by jury, and the entrance of a guilty plea are sufficiently personal and fundamental as to require a voluntary, knowing, and intentional waiver by the defendant himself. Curtis, 681 P.2d at 511.
However, "as to other rights `[d]efense counsel stands as captain of the ship.'" Id. (quoting Steward v. People, 179 Colo. 31, 34, 498 P.2d 933, 934 (1972)). The right to confrontation falls into the class of rights that defense counsel can waive through strategic decisions, such as choosing whether and how to conduct cross-examination or by stipulating to the admission of evidence. Id. ("[D]ecisions committed to counsel include . . . whether and how to conduct cross-examination. . . ."); Morse v. People, 180 Colo. 49, 54, 501 P.2d 1328, 1330-31 (1972) (defense counsel's stipulation to admission of witness depositions waived the defendant's right to confront the witnesses at trial); see also Aptt, 354 F.3d at 1282 (defense counsel waives defendant's Sixth Amendment right of confrontation by stipulating to the admission of evidence as long as the defendant does not object and the decision is one of reasonable trial strategy); Hawkins, 185 F.3d at 1154-56 (same); 3 Wayne R. LaFave et al., Criminal Procedure § 11.6(a) (2d ed.1999) ("[T]he Supreme Court has indicated, in dictum or holding, that counsel has the ultimate authority in . . . foregoing cross-examination."). "Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer's decision to forgo cross-examination. . . ." Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
Defense counsel, therefore, may waive a defendant's right to confront the technician who prepared a lab report by not complying with the procedural requirements of section 16-3-309(5). Moreover, we presume that attorneys know the applicable rules of procedure. Christie, 837 P.2d at 1244. Given this knowledge, we can infer from the failure to comply with the procedural requirements that the attorney made a decision not to exercise the right at issue. See id. at 1243-44; see also Barker v. Wingo, 407 U.S. 514, 528-29, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (a trial court should give "due consideration [to] any applicable formal procedural rule" when determining whether the defendant waived the right to a speedy trial by failing to request one). Therefore, where a defendant such as Hinojos-Mendoza is represented by counsel, the failure to comply with the statutory prerequisites of section 16-3-309(5) waives the defendant's right to confront the witness just as the decision to forgo cross-examination at trial would waive that right. Many other courts have found a valid waiver in similar circumstances. See Brooks, 638 S.E.2d at 138 ("In sum, we hold a defendant's failure timely to notify the Commonwealth of his desire to confront the forensic analyst at trial constitutes a waiver of that right."); City of Las Vegas, 124 P.3d at 208; State v. Campbell, 719 N.W.2d 374, 378 (N.D. 2006); Deener, 214 S.W.3d at 528; see also Caulfield, 722 N.W.2d at 318-19 (Anderson, J., dissenting).
As already explained in this opinion, the right to confront the lab technician is not a personal right that can only be waived by the defendant. Unlike the situation in Christie, wherein the right to a jury trial was at stake, the trial court does not need to make sure that the attorney's failure to comply with section 16-3-309(5) reflects the informed and voluntary decision of the defendant.
We offer no opinion on whether the analysis would be altered if Hinojos-Mendoza had been a pro se defendant.
This conclusion may, at first blush, appear to implicate what is known as the demand-waiver doctrine, which presumes waiver of a right through inaction. Barker, 407 U.S. at 525, 92 S.Ct. 2182. The Supreme Court disapproved of a strict demand-waiver doctrine in determining whether the right to a speedy trial was waived, because the doctrine is inconsistent with the definition of waiver as the intentional relinquishment of a known right. Id. In Christie, however, we explained the difference between uninformed inaction and informed inaction, noting that "[i]n the latter case . . . there is a `decision' made, namely, the informed decision not to exercise the right. . ." 837 P.2d at 1243.
Defense counsel's statement on the record that he was unaware of section 16-3-309(5) does, however, raise a question about ineffective assistance of counsel. A competent attorney representing a defendant in a drug prosecution should be aware of the statutory procedure required to guarantee the in-court testimony of a lab technician whose report identifying narcotics is to be entered into evidence. An attorney's unexcused failure to comply with the statute may very well constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether defense counsel's failure to comply with section 16-3-309(5) in this case was a strategic decision or the provision of ineffective assistance of counsel, however, is not before us in this direct appeal.
III. Conclusion
In sum, we hold that the lab report is testimonial hearsay under Crawford, and we therefore reverse that portion of the court of appeals' opinion. Nonetheless, we hold that Hinojos-Mendoza waived his right to confront the technician who prepared the report at trial by failing to comply with section 16-3-309(5). We hold that section 16-3-309(5) is facially constitutional and constitutional as applied to Hinojos-Mendoza. The court of appeals' holding that the trial court did not err in admitting the lab report without the testimony of the technician who prepared the report is therefore affirmed on other
Justice MARTINEZ dissents and Justice BENDER joins in the dissent.
Justice EID does not participate.