March 14, 2011
Cropper v. People Confrontation Clause and C.R.S §16-3-309(5)(lab tech notice)
Facts: C.R.S §16-3-309(5) requires counsel to request that any lab technician to testify in person 10 days prior to trial. (DNA, Alcohol, or any other ‘comparologist’ as Wymore calls these clowns). In Mr. Cropper’s case, the defense did not file any notice with the Court requiring in person testimony.
Issue: Whether allowing a lab report of a technician’s findings violates the Confrontation Clause when the defense did not request in person testimony pursuant to C.R.S §16-3-309(5)?
Reasoning: Despite the entire movement away from using technical pleadings to knock-out the opposing side’s evidence, the Colorado Supreme Court found not complying with a technical rule waives a Constitutional Right – the Right to Face-to-Face Confrontation. Thus, if a lawyer fails to request live testimony from a lab tech pursuant to C.R.S §16-3-309(5), then the client waives his/her right to confront the lab tech in court. Justice Rice wrote the opinion for the Court. Both Justices Bender and Martinez dissented.
The Court cites dicta in Melendez-Diaz, 129 S.Ct. 2527 (2009), to justify today’s holding while declining to follow the its own dicta in People v. Mojica-Simental, 73 P.3d 15 (2003)( §16-3-309(5) held to be constitutional on its face). In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held simply that admitting lab reports without live testimony violates the Confrontation Clause of the U.S. Constitution. However, the U.S. Supreme Court gave the Colorado Supreme Court an erection by quoting it in Hinojos-Mendoza v. People, “There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. See Hinojos-Mendoza v. People, 169 P.3d 662, 670 (Colo.2007) (discussing and approving Colorado's notice-and-demand provision).” Melendez-Diaz 129 S.Ct. at 2541.
In Mojica-Simetal, an opinion by Justice Martinez, the Court reasoned that the right to confront witnesses was personal in nature, and thus, the CLIENT must knowingly, intelligently, and voluntarily waive his/her right to confront the witness. In today’s case, the Court simply stated, “In Hinojos-Mendoza, we reaffirmed the constitutionality of section 16-3-309(5) and acknowledged that the dicta in Mojica-Simental was misplaced because it was based on the mistaken assumption that a defendant can only waive his right of confrontation if he personally makes a knowing, voluntary, and intentional waiver.”
Lastly, the Court reached to People v. Curtis to quote the language ‘the attorney is the captain of the ship’. The Court states, “People v. Curtis, 681 P.2d 504, 511 (Colo. 1984) ([D]efense counsel stands as captain of the ship. . . . [D]ecisions committed to counsel include . . . whether and how to conduct cross-examination . . .” (internal quotations and citations omitted)). And, in some instances, defense counsel’s inaction alone is sufficient to constitute a waiver.” (Defense lawyer being the Captain of the Ship came as news to most defense lawyers who read the Court’s decision last year in People v. Bergerud, 223 P.3d 686 (Colo.2010). In Bergerud, Court remanded a first-degree murder case to determine whether defense counsel investigated enough wild-goose chases on behalf of the client).
People v. Rector Expert testimony / Shreck
Facts: The prosecution charged and a jury convicted Ms. Rector of child abuse. She claimed the kid fell off the bed. Dr. Sirotnak and two other doctors opined the kid suffered non-accidental abuse. Pre-trial the defense asked for a Shreck hearing on the issue of shaken-baby syndrome. At the hearing, the prosecution stipulated they did not intend to admit any evidence of shaken-baby syndrome or imply the child suffered from shaken-baby syndrome. The defense did not object to Dr. Sirotnak’s qualification as a medical expert and the defense did not challenge him, the other doctors, or the “non-accidental abuse” under Shreck.
Issue: Whether Shreck required a pre-trial hearing of Dr. Sirotnak’s proffered testimony and opinion?
Reasoning: The defense sought a Shreck hearing on one doctor but not on Dr. Sirotnak. See People v. Shreck, 22 P.3d 68 (Colo. 2001). The Court stated, “In determining admissibility of expert testimony, a trial court employs a Shreck analysis, which requires that: (1) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony will be helpful to the jury; and (4) the evidence satisfies CRE 403. Shreck, 22 P.3d at 77-79.”
Thus, the defense only sought a Shreck hearing on the issue of shaken-baby syndrome. As such, the Colorado Supreme Court held that failure to request a Shreck hearing on the issue testified to at trial or to Dr. Sirotnak pretrial cannot then be raised on appeal. Further, the Court emphasized the defense did not challenge Dr. Sirotnak’s qualifications as a medical expert at trial, and the defense conceded that Dr. Sirotnak could offer an expert medical opinion. Essentially, the Court punted the whole issue back to the defense to demand specific challenges to specific doctors and specific evidence. Thus, the Court found the following language be too general to give the trial court notice of the issue: “the doctors ha[d] inferred that there [wa]s no accidental trauma and in fact, the conclusion that the doctors reach[ed] support[ed] the bringing of . . . charges [for] the intentional act to abuse the child.”