Marshall v. People , 309 P.3d 943 ( 2013 )

Justice EID

delivered the Opinion of the Court.

{1 The People charged the Petitioner, Dina Marshall, with driving under the influence of drugs, careless driving, and possession of drug paraphernalia after lab urinalysis results revealed Marshall had methamphetamine in her system when she caused a car accident. At trial, the People called Cynthia Burbach, the supervisor of the Colorado Department of Health toxicology lab, to testify about Marshall's level of intoxication. During Burbach's testimony, the People sought to admit the lab result showing that Marshall had methamphetamine present in her urine. Over Marshall's objection, the county court admitted the lab report without the testimony of the lab technician who actually performed the test. The county court also denied Marshall's motion for judgment of acquittal on the paraphernalia possession charge. Acting in its appellate capacity, the district court upheld both of the trial court's decisions. Marshall petitioned this court for a writ of certiorari, which we granted.

€ 2 We now affirm the district court's ruling regarding the admission of the lab report. First, we find that admission of the lab report did not violate the Confrontation Clause. While Burbach did not conduct the test of Marshall's urine sample herself, she supervised the testing process, reviewed all the data generated by the test, made the determination that the data accurately determined that Marshall had methamphetamine present in her urine, and certified the test results. She therefore did not provide "surrogate" testimony of the sort found to be problematic in Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).

T 3 Second, admission of the lab report did not violate section 16-3-809(5), C.R.S. (2012). That section provides that, upon a defendant's timely request, the lab employee who "accomplished the requested analysis" must be made available to testify at trial. According to the plain meaning of "accomplish," Burbach accomplished the analysis because she performed the final analysis of the data required to certify the results. as accurate. Therefore, Burbach's testimony satisfied seetion 16-8-309(5).

T4 Finally, the People concede, and our review confirms, that there was no evidence presented that Marshall possessed drug paraphernalia. Therefore, we find that the county court erroneously denied Marshall's motion for judgment of acquittal on this charge, and reverse the district court's judgment in this regard.

I.

1 5 Dina Marshall was driving her truck on March 4, 2008, in Thornton when she rear-ended another woman's vehicle. The two women pulled into a gas station parking lot to exchange information. After pulling into the parking lot, Marshall backed into the woman's car, and the woman called Thornton police.

T6 Officer Mark Swisher arrived on the scene and began asking Marshall what happened. Marshall talked rapidly, jumped from subject to subject, hesitated during the middle of sentences, was unsteady while standing and walking, and could not hold still while speaking with him. Based on this conduct, Officer Swisher began to suspect that Marshall was under the influence of drugs. Officer Swisher asked Marshall if she would be willing to complete voluntary roadside maneuvers, and Marshall responded, "I don't want to but I will." After Marshall failed all three roadside maneuvers, Officer Swisher advised her of her Miranda rights and arrested her. When Officer Swisher asked Marshall whether she was under the influence of prescription or illegal drugs, Marshall responded, "You already know I smoked meth two hours ago." Officer Swisher administered a breath test to rule out the presence of alcohol. When he informed Marshall that she had passed the breath test, she responded that she already told him she had not been drinking but had smoked meth. Marshall then consented to a urine test to sereen for the presence of drugs.

T7 The Thornton Police Department sent Marshall's urine sample to the Colorado Department of Health toxicology lab and requested that the sample be tested for the presence of amphetamines. When the lab receives a sample, protocol dictates that the receiving analyst sign for the sample and note whether the seal appears intact. Then the sample is assigned a toxicology number. A lab analyst first performs a screening test on the sample to determine whether amphetamines might be present in the urine. If this screening test produces a presumptive positive result for amphetamines, another analyst will perform a confirmation test on a gas chromatograph/mass spectrometer. This confirmation test specifically tests for methamphetamine and can more accurately predict its presence in the sample. The confirmation analyst formats the results generated by the instrument into an Exeel spreadsheet, and then the results go through a peer review before they are reviewed by a work leader. Finally, the file containing this information is given to the lab supervisor, Bur-bach, to be approved.

8 According to Burbach's testimony, she conducts several steps of review of the instrument data. First, she determines whether the controls fall within their expected range. Second, she considers the calibration samples to ensure that they met quality control standards. Third, she determines whether all the ions necessary to conclude that methamphetamine existed in the urine are present in the urine sample. Fourth, she analyzes the internal standard to determine whether it worked in each sample. Finally, she looks to make sure the two lab techni-clans have not taken any corrective actions during the test. Onee Burbach has completed her review, she can certify the results and send them back to the requesting police department.

T9 In this case, Burbach certified results showing that Marshall's urine tested positive for the presence of methamphetamine by signing the results form. No other person's name appears on the form. During her testimony, Burbach acknowledged that she did not perform any of the tests on the sample. The form Burbach signed stated that only the confirmation test should be used for "legal purposes."

{10 The People charged Marshall with driving under the influence of drugs¹ and careless driving,² both misdemeanors. When defense counsel received the litigation packet, she realized that the People sought to introduce the urinalysis results. Counsel filed a timely motion, pursuant to section 16-3-309(5), requesting that the People make the lab technician who performed the urinalysis testing available to testify at Marshall's trial. The People called Burbach to testify at the trial, and defense counsel objected on the ground that Marshall had a right to confront the lab technician who actually performed the test. The county court overruled the objection.

§11 Defense counsel also objected when the People sought to admit People's Exhibits 1 and 2 through the testimony of Burbach. Exhibit 1, which was signed by Officer Swisher and initialed by an unidentified lab employee, provided the chain of custody for the sample. Exhibit 2, which was signed by Burbach, provided the urinalysis results. The county court admitted both exhibits under the business records exception to the hearsay rule.

1 12 On October 15, 2010, the People also charged Marshall with possession of drug paraphernalia ³ based on the fact that police officers found a drug pipe in Marshall's truck when they conducted an inventory search after her arrest. Both the People and defense counsel discussed the pipe during opening arguments. However, the People failed to introduce any evidence of the drug pipe. As a result, defense counsel made a motion for judgment of acquittal at the close of the People's case. The county court denied the motion.

113 The jury convicted Marshall of all three offenses. Marshall appealed her convictions to the district court, and the district court affirmed. She then petitioned this court for certiorari. We granted certiorari to consider whether either the Confrontation Clause or section 16-8-309(5), precluded the People from introducing the report showing Marshall's urinalysis results when Burbach, but not the lab technician, testified at trial, and also to consider whether the trial court erred in denying the motion for judgment of acquittal on the possession of drug paraphernalia charge⁴

{14 We now affirm the district court's judgment that the admission of the lab report certified by Burbach did not violate the Confrontation Clause or section 16-8-809(5). We reverse the judgment of the district court as to the drug paraphernalia charge, and remand the case for proceedings consistent with this opinion.

IL.

15 The Sixth Amendment of the United States Constitution affords to the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI; see also Colo. Const. art. II, § 16 ("In erimi-nal prosecutions the accused shall have the right ... to meet the witnesses against him face to face. ..."); Hinojos-Mendoza v. People, 169 P.3d 662, 665 (Colo.2007) (noting that "[the Sixth Amendment right to confrontation applies to state as well as federal prosecutions"). The United States Supreme Court has interpreted this right to disallow "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for eross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The People appear to concede, and we agree, that the report in this case was testimonial in nature. See Bullcoming, -- U.S. at ---, 181 8.Ct. at 2717 (holding that a lab report was sufficiently formalized to qualify as testimonial when it was in a signed document labeled as a report and acknowledged court rules governing its admissibility); Hingjos-Mendoza, 169 P.3d at 667 (finding a lab report to be testimonial when "the sole purpose of the report was to analyze the substance found in [defendant's] vehicle in anticipation of criminal prosecution"). We therefore turn to the question whether Bur-bach's testimony satisfied the dictates of the Confrontation Clause.⁵

116 Marshall argues that Burbach's testimony ran afoul of the Supreme Court's recent decision in Bullcoming. We disagree.

T17 In Bullcoming, the state introduced as evidence against the defendant test results certified by a particular lab analyst. Bullcoming, - U.S. at -, 131 S.Ct. at 2709. However, the state did not call as a witness the analyst who certified the results, but rather called another analyst who would serve as a "surrogate." Id. at ---, 131 S.Ct. at 2713. The New Mexico Supreme Court held that such surrogate testimony met the dictates of the Confrontation Clause. Id. The Supreme Court reversed, explaining that testimony of a surrogate-that is, a person "who did not sign the certification or personally perform or observe the performance of the test reported in the certification," id. at --, 131 S.Ct. at 2718-"could not convey what [the non-testifying analyst] knew or observed about the events his certification concerned." Id. at --, 181 S.Ct. at 2715; see also id. at --, 1831 S.Ct. at 2722 (Soto-mayor, J., concurring in part) (noting that the "court below ... recognized [the testifying witness's] total lack of connection to the test at issue"). As the Court concluded, "when the State elected to introduce {[the lab analyst's] certification, [that analyst] became a witness [the defendant] had the right to confront." Id. at --, 181 S.Ct. at 2716. Because the defendant was not given an opportunity to confront the analyst, the Court found that the Confrontation Clause was violated. Id. at --, 181 S.Ct. at 2710.

1] 18 We find that Burbach did not provide "surrogate" testimony of the sort that the Court found problematic in Bulleoming. Unlike in Bullcoming, where the testifying witness had no connection with the particular lab report at issue, here Burbach supervised the performance of the tests and certified the lab report. According to Burbach's testimony, she synthesized the tests performed by two different analysts to ensure that both had reached the same conclusion. Then, she reviewed the data generated by the scientific instruments to ensure that the controls show the instruments were working properly while they performed the tests in question. Finally, she reviewed the analysts' notes to conclude that they followed lab protocol throughout the testing process. Only after she performed all of these steps did she certify the test results and sign the form that was sent back to the Thornton Police Depart-ment⁶ In other words, when Burbach testified at trial, she testified as to her own involvement in the process, not as a "surrogate" for someone else's.

¶ 19 Other courts that have considered this question have found that supervisor testimony satisfies the Confrontation Clause when the supervisor prepares or signs the report. See, e.g., United States v. Summers, 666 F.3d 192 (4th Cir.2011) (finding the Confrontation Clause satisfied through the testimony of a supervisor who had prepared and signed a DNA test report based on data generated by another analyst but conclusions drawn by the supervisor); Jenkins v. State, 102 So.3d 1063 (Miss.2012) (finding no Confrontation Clause violation when a supervisor did not perform the actual test but reviewed the data generated, reached his own conclusion, and signed the report as a supervisor); Commonwealth v. Yohe, 39 A.3d 381 (Pa.Super.Ct.2012) (allowing a lab supervisor to introduce a blood aleohol test when he did not perform the test but reviewed the results, certified their accuracy, and signed the report); State v. Lopez, 45 A.3d 1 (R.I.2012) (allowing a lab supervisor to introduce DNA results when he did not perform the tests but evaluated all the results, drew conclusions based on those results, and prepared the report).⁷124 We join these courts in concluding that when a lab supervisor such as Burbach independently reviews scientific data, draws the conclusion that the data indicates the positive presence of methamphetamine, and signs a report to that effect that is admitted at trial, the Confrontation Clause is satisfied if she testifies and is available for eross-examination.⁸

120 Under Bullcoming, onee the lab report certified by Burbach was introduced as evidence against Marshall, she became "a witness [the defendant] had the right to confront." -- U.S. at --, 131 S.Ct. at 2716; see also id. at ---, 181 S.Ct. at 2710 ("The accused's right is to be confronted with the analyst who made the certification...."). Marshall did in fact confront Burbach at trial, subjecting her to thorough eross-exami-nation.⁹ Accordingly, we conclude that no violation of the Confrontation Clause occurred in this case.

III.

We also disagree with Marshall's argument that the People violated section 16-3-309(5) by calling Burbach, rather than the analyst who performed the confirmation test, to testify at Marshall's trial. Section 16-3-809(5) provides as follows:

Any report or copy thereof or the findings of the criminalistics laboratory shall be received in evidence in any court, preliminary hearing, or grand jury proceeding in the same manner and with the same force and effect as if the employee or technician of the eriminalisties 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 fourteen days before the date of such criminal trial.

(Emphasis added). As relevant here, the statute requires that the employee or analyst "who accomplished the requested analysis" be present to testify if the defendant comports with the other requirements of the statute. See Cropper v. People, 251 P.3d 434, 438 (Colo.2011) (a defendant may "avail [herself] of the opportunity to assert ... [her] confrontation rights" by following the dictates of section 16-8-809(5)). Therefore, in order to determine whether there was compliance with section 16-8-309(5) in this case, we must determine whether Burbach "accomplished" the requested urinalysis.

{21 Because the legislature has not defined "accomplish" in the statute, we look to the plain meaning of the word. "Accomplish" means "to execute fully: perform, achieve, fulfill." Webster's Third New International Dictionary 12 (2002). For many of the same reasons discussed in the previous section, Burbach "accomplished" the requested urinalysis.

122 Although two other analysts performed the screening and confirmation tests, Burbach's expertise was required to generate the final report. Burbach reviewed both the screening and confirmation tests to ensure that their results coincided, analyzed the instrument data to verify that the instrument was working properly in each instance and that the results indicated the positive presence of methamphetamine, and reviewed the notes of the lab analysts to determine that the analysts had followed what Burbach considered to be acceptable lab protocol. Bur-bach's review and independent analysis was necessary to fully execute the requested urinalysis, because without this review, the results would not have been certified as accurate and mailed to the police department. Therefore, even though other analysts contributed to the ultimate result, Burbach performed the final and necessary step before the results could be certified as accurate. As a result, she "accomplished" the urinalysis that she signed and returned to the Thornton Police Department.¹⁰

$23 In sum, we conclude that because Burbach accomplished the requested urinalysis, her testimony was sufficient to satisfy section 16-8-8309(5).

IV.

1 24 The People concede that there was no evidence presented that Marshall possessed drug paraphernalia. A review of the record confirms that both parties discussed a drug pipe during opening statements but that the People introduced no evidence of the drug pipe. Therefore, we find that the county court erroneously denied Marshall's motion for judgment of acquittal on this charge, and reverse the district court's judgment in this regard.

v.

25 For the reasons stated above, we affirm the district court's judgment that the admission of the lab report certified by Bur-bach did not violate the Confrontation Clause or section 16-8-809(5). We reverse the judgment of the district court as to the drug paraphernalia charge, and remand the case for proceedings consistent with this opinion.

Chief Justice BENDER concurs in part and dissents in part, and Justice BOATRIGHT joins in the concurrence in part and the dissent in part.

1 . § 42-4-1301(1)(a), C.R.S. (2012).

2 . § 42-4-1402, C.R.S. (2012).

3 . § 18-18-428(1), CR.S. (2012).

4 . Specifically, we granted certiorari to consider the following issues:

1. Whether, in light of the United StatesSu-preme Court's recent decision in Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the appearance of a lab supervisor that reviewed and approved test results completed by another technician is sufficient to satisfy the Confrontation Clause of the United States Constitution.

2. Whether the appearance of a lab supervisor that reviewed and approved test results completed by another technician is sufficient to satisfy section 16-3-309(5), C.R.S. (2011).

3. Whether the denial of a motion for judgment of acquittal was in error where no evidence was presented in support of the charge of possession of drug paraphernalia.

5 . The People argue that because Marshall's objection at trial was phrased only in terms of a violation of section 16-3-309(5), and not the Confrontation Clause, her Confrontation Clause claim should be reviewed only for plain error. We need not decide what sort of objection would be required to preserve a Confrontation Clause challenge because, assuming for the purposes of this case that Marshall's objection was sufficient to preserve such a challenge, we find that there was no confrontation error in this case.

6 . People's Exhibit 1, the lab services requisition form, contains a signature from someone other than Burbach acknowledging that the lab received Marshall's urine sample and that the seal did not appear broken. Marshall does not raise a confrontation challenge to this form, and therefore we do not address it.

7 . As would be expected in labs with different procedures, factual circumstances surrounding supervisors' method of reviewing and certifying lab results can vary. See, e.g., Summers, 666 F.3d at 196 (supervisor wrote a separate report and created a table comparing DNA results); Lopez, 45 A.3d at 11 (supervisor prepared a report based on a comparison of DNA profiles). Here, Burbach independently reviewed the scientific data and certified the urinalysis report as accurate. These minor distinctions do not change the fact that these supervisors independently reviewed and certified lab results, and thus do not affect our analysis.

8 . We find other decisions to be unpersuasive because they either declined to resolve the issue, found any error to be harmless, or are factually distinguishable. In United States v. Moore, 651 F.3d 30, 71-72 (D.C.Cir.2011), cert. denied, - U.S. -, 132 S.Ct. 2772, 183 L.Ed.2d 642 (2012), for example, the court expressly declined to resolve the Confrontation Clause issue where the supervisor in question, in contrast to the facts here, did not sign any of the twenty DEA reports about which he testified, and the record offered no proof that he certified any of them; further, the court found any error would be harmless. Similarly, in Sherrill v. Thaler, H-11-0388, 2012 WL 718942 (S.D.Tex. Mar. 5, 2012), the court found "[a)rguabl(e]" error where testifying lab supervisor did not generate the final report at issue, in contrast to the facts here, but concluded any error to be harmless. See also People v. Morrison, 90 A.D.3d 1554, 935 N.Y.S.2d 234 (2011) (same). Finally, we simply disagree with the court's reasoning in Martin v. State, 60 A.3d 1100 (Del.2013), that Bullcoming requires that a defendant have the opportunity to confront any lab analyst who participates in the testing process.

9 . Burbach's tenure as supervisor has been the subject of some controversy. However, as noted above, Marshall had the opportunity to confront Burbach and did in fact subject her to thorough cross-examination. At issue here is not the content of Marshall's cross-examination, but rather whether the Confrontation Clause is satisfied where the testifying lab supervisor independently reviews scientific data, draws the conclusion that the data indicates the positive presence of a substance, and signs a report to that effect. We hold that it is.

10 . In this case, we are only asked to consider whether Burbach "accomplished" the urinalysis, and conclude that she did. We express no opin-fon as to whether other analysts within the lab could accomplish the test within the meaning of section 16-3-309(5).