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,
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,
Under the Confrontation Clause, if an out-of-court statement made by a nontestify-ing 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 of finding of a criminalistics laboratory “with the same force and effect as if the employee or technician of the criminalis-tics 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,
Here, the People sought to introduce a laboratory report as to the “tan tape wrapped block containing 1004.5 grams of compress white powder ... [which when tested] disclosed the presence of cocaine, schedule II.” Defendant objected that the report was “a hearsay document.” The court *35 asked defense counsel whether he had requested the laboratory technician to testify. Counsel responded that he had not because he was unaware of the notice requirement under § 16-3-309(5). The People did not dispute this assertion. The court then overruled defendant’s objection and admitted the report.
A. Preservation of Issue
Initially, we do not entertain challenges to the constitutionality of a statute raised for the first time on appeal.
People v. Boyd,
Here, defendant did not challenge the constitutionality of § 16-3-309(5), either facially or as applied, in the trial court. Accordingly, we will not address that issue for the first time on appeal.
Under the particular facts presented, we decline to address the People’s assertion that defendant’s general hearsay objection did not properly preserve a confrontation issue for review.
If an appeal is taken, the conviction becomes final when the appellate process ends.
People v. White,
Until a conviction is final, the defendant may raise a challenge based on “a substantial change in the law.”
People v. White, supra,
The
Crawford
majority pointed out that in response to the state’s reliance on the hearsay exception for statements against penal interest, the defendant “countered that, state law notwithstanding, admitting the evidence would violate his federal constitutional right to be ‘confronted with the witnesses against him.” ’
Crawford v. Washington, supra,
Some Colorado cases construe general hearsay objections broadly.
See People v. Harris,
In any event, we need not resolve this question because, even if defendant is entitled to a review under Crawford of the ruling admitting the laboratory report, he is not entitled to relief under Crawford.
B. Crawford v. Washington
We consider the effect of Crawford v. Washington, supra, on the laboratory report and conclude that because the report is non-testimonial, Crawford does not require its exclusion.
Although the
Crawford
majority declined to “spell out a comprehensive definition of ‘testimonial,” ’
Crawford v. Washington, supra,
In
Compan v. People, supra,
The
Crawford
majority also explained: “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their devel
*36
opment of hearsay law — as does
[Ohio v. Roberts, supra],
and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.”
Crawford v. Washington, supra,
In
People v. Shreck,
A majority of jurisdictions hold that laboratory reports and similar documents are nontestimonial business or public records.
See, e.g., People v. Johnson,
In
Commonwealth v. Verde, supra,
Defendant urges us to follow a minority of cases that treat as testimonial under
Crawford
various documents prepared at the behest of law enforcement.
See, e.g., Johnson v. State,
— So.2d -,
Intermediate appellate and lower courts within at least Florida, New York, and Texas appear to have taken contrary positions. Hence, attempting to reconcile these authorities would be premature until those states’ highest courts have spoken.
*37
Nevertheless, in the circumstances of this case, we consider the majority cases better reasoned. Applying their holdings here shows that the report does not raise the evils at which the Confrontation Clause was directed.
See Crawford, supra,
Many of the cases cited by defendant emphasize that the documents at issue were prepared for the purpose of litigation.
See, e.g., People v. Hernandez, supra,
In contrast, to be admissible as a business record, a document must have been prepared in “the regular practice of that business activity.” CRE 803(6); see
Palmer v. A.H. Robins Co.,
Here, on petition for rehearing, defendant does not dispute the report is a business record. Defendant does not assert, and the record does not show, that the report was prepared at the express direction of the prosecutor for the purpose of litigation.
At trial, defendant conceded that the material seized from his truck was cocaine. He disputed only the amount seized. Weighing incoming material to be tested is a routine laboratory procedure.
See People v. Johnson, supra; Commonwealth v. Verde, supra.
Thus, a technician who prepared such a report would “merely have authenticated the document.”
People v. Johnson, supra,
Many of defendant’s cases also emphasize that the documents at issue were affidavits. See, e.g., People v. Durio, supra; Moreno Denoso v. State, supra. The majority in Craivford identified affidavits as a specific category of testimonial evidence.
But the report before us is not an affidavit. Nor does it resemble the other types of statements identified by the
Crawford
majority as testimonial, such as “prior testimony at a preliminary hearing, before a grand jury, or at a former trial.” It is not a statement obtained from a witness during a “police interrogation.”
Crawford, supra,
Further, the report does not include detailed descriptive information that would typically be presented through narrative testimony. See Russeau v. State, supra. And, while the report names defendant, it contains no directly accusatorial statements against him. See Johnson v. State, supra (statement intended to lodge a criminal accusation against a defendant).
Therefore, we conclude that the report was not testimonial, and Crawford v. Washington, supra, does not require its exclusion.
C. Compan v. People
We further conclude defendant’s confrontation rights as to nontestimonial hearsay were not violated.
If hearsay is not testimonial, we continue to determine its admissibility under
Ohio v. Roberts, supra,
and
People v. Dement,
The prosecution must show at least that the out-of-court statement bears sufficient indicia of reliability. Compan v. People, supra. Reliability can be inferred where the statement falls under a firmly rooted hearsay exception. People v. Fry, supra.
In
Compan v. People, supra,
As the report is a business record within the CRE 803(6) hearsay exception, its admission required only testimony from an adequate foundation witness, such as the technician who prepared the report, whom defendant could then confront.
Defendant failed to obtain the presence of the technician by giving pretrial notice under the statute.
See People v. Mojica-Simental, supra,
Accordingly, we discern no error, constitutional or evidentiary, in admitting the laboratory report without the testimony of the technician who prepared it or a comparable authenticating witness.
II. Hearsay of Informant
Defendant also contends his right of confrontation was violated by the erroneous admission of hearsay testimony from a police officer. We conclude that even if defendant preserved this issue as a confrontation violation, reversal is not required.
Hearsay is a statement made by someone other than the declarant while testifying at trial, offered into evidence to prove the truth of the matter asserted. CRE 801(c). Hearsay evidence is generally inadmissible at trial unless it meets one of the established exceptions. CRE 802;
see People v. King,
Not every hearsay exception raises a confrontation issue. Crawford v. Washington, supra. For example, in most cases exceptions for marriage, baptismal, and similar certificates, CRE 803(12); family records, CRE 803(13); and real estate records, CRE 803(14)-(15), do not shield an identifiable de-clarant from the adverse party’s right to cross-examination.
Here, when the police officer testified that the informant “placed a call to a party whom he identified or said that he knows as Oscar and placed an order for one kilogram of cocaine,” and that “the vehicle fit the description that was given [by the informant],” defendant did not object.
Later, the officer testified that the informant arranged for the supplier to “pull up, honk his horn, and that [the informant] was supposed to go out and exchange the drugs for the money in the parking lot.” Defendant objected to the testimony as hearsay. Before the People responded, the court overruled the objection, without explanation.
During cross-examination, the officer explained that because he was not fluent in Spanish, his partner had translated into English the informant’s side of the phone call while it occurred, as well as the conversation with the informant after the call. Defendant did not object to the translation as hearsay.
A. Translation as Hearsay
We reject defendant’s assertion that the partner’s translation added a layer of inadmissible hearsay to the informant’s statements.
We review for plain error because defendant did not raise this objection below.
See People v. Kruse,
An interpreter serves as a language conduit for the declarant. Hence, admission of translated testimony is appropriate when the circumstances assure its reliability. Relevant factors include: (1) whether actions after the translated conversation were consistent with the translated statements; (2) whether the interpreter had qualifications to interpret and language skill; (3) whether the interpreter had any motive to mislead or distort; and (4) which party supplied the interpreter.
People v. Gutierrez,
Here, defendant arrived at the arranged location in a particular vehicle, parked, and honked his horn, all as described earlier by the informant, according to the translation. *39 The officer testified that although he did not know whether his partner was certified as a professional translator, the partner’s primary language is Spanish and he had frequently translated conversations during their twelve-year partnership. Moreover, the officer who translated had an incentive to translate the details of the arranged drug transaction correctly to identify and arrest the suspect.
Therefore, we discern no plain error.
B. Informant’s Statements
We next reject defendant’s assertion that because the informant’s statements constituted inadmissible hearsay, the court committed reversible error.
We review for plain error the portion of the informant’s hearsay to which defendant did not object.
People v. Kruse, supra.
We apply a constitutional harmless error analysis to that part of the officer’s testimony to which defendant objected. See
People v. Harris, supra; People v. Couillard,
Here, defendant asserts that the People offered testimony about the informant’s arrangements with him to prove that he intended to sell the cocaine. The record does not inform us whether the People offered this testimony for a nonhearsay purpose (such as to provide context for the officers’ actions), whether they considered a hearsay exception applicable, or why the trial court overruled defendant’s hearsay objection.
In any event, we will consider this testimony as hearsay, because we conclude that even if so, defendant is not entitled to relief. Further, because we conclude that the record does not support the People’s argument for indicia of reliability under the Roberts-Dement test, we need not decide whether the informant’s statements were testimonial under Crawford.
For the first time on appeal, the People argue that the statements bear sufficient indicia of reliability because they are admissible under the hearsay exception for spontaneous present sense impressions. According to the People, the informant was describing his conversation with his supplier. Because we reject this argument, we do not address whether the People must also show the informant’s unavailability.
A “spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition” is an exception to the hearsay rule. CRE 803(1). Because the People raise CRE 803(1) for the first time on appeal, the trial court made no findings as to its application here.
Colorado law requires that a statement be instinctive and spontaneous to constitute a present sense impression.
See People v. Czemerynski,
Here, the officer’s testimony commingled statements of the informant relating the content of his telephone conversation after it had ended with the informant’s side of the conversation while it was occurring. Hence, we conclude this testimony was not a spontaneous present sense impression.
Having concluded that the People failed to establish sufficient indicia of reliability, we examine the informant’s statements in the context of defendant’s objection.
1.
With respect to the unobjected-to hearsay, plain error requires that we consider whether the error was “obvious, substantial, and grave.”
Moore v. People,
If we discern plain error, we then review the entire record to ascertain whether the error so undermined the trial’s fundamental fairness as to cast serious doubt on the reliability of the conviction.
Woertman v. People,
Here, defendant reserved his opening statement, and thus the trial court would not have been aware defendant intended to acknowledge that the events transpired as presented in the People’s case, but subject to his explanation of collecting a debt from the informant rather than selling cocaine to him and being ignorant of the cocaine in his truck. The officer presented a lengthy narrative of the background leading up to apprehension of the informant. Within this narrative, the officer made brief references to the statements by the informant about defendant. Under these circumstances, we discern nothing that would make the hearsay problem in the statements about defendant so obvious as to require sua sponte action by the trial court. See People v. Petschow, supra.
Hence, we conclude the error is not plain.
2.
With respect to the objected-to hearsay, review for error harmless beyond a reasonable doubt involves several factors, including the importance of the evidence to the People’s case, the overall strength of the People’s case, the cumulative nature of the evidence, and the presence or absence of corroborating or contradictory evidence.
People v. Trujillo,
Before defendant objected, the officer had already testified, without objection, that the informant called defendant to place an order for a kilogram of cocaine. Thus, even if the objected-to hearsay had not been admitted, the jury would still have had to weigh similar unobjected-to hearsay against defendant’s explanation that he was only attempting to collect a debt and that he was not aware of the kilo of cocaine found in his truck. Because the objected-to hearsay testimony was cumulative of the unobjected-to hearsay, we conclude its erroneous admission was harmless beyond a reasonable doubt.
See People v. Candelaria,
Accordingly, we conclude the admission of the hearsay statements does not require reversal.
III. Jury Instructions
Defendant next contends the trial court committed reversible error by failing to instruct the jury that quantity was an element of the offense which must be proved beyond a reasonable doubt. We disagree.
A. Quantity as an Element
We reject defendant’s argument that quantity is an element of possession with intent to distribute a controlled substance. “Section 18-18-405(3)(a) does not create an additional element [of quantity] for the underlying substantive offense; rather, it defines circumstances that, if proven beyond a reasonable doubt, may require a sentence greater than the presumptive minimum contained in [§ 18-1.3-401(1)(a), C.R.S.2004].”
Whitaker v. People,
B. Proof of Quantity Beyond a Reasonable Doubt
Nevertheless, quantity still must be proved beyond a reasonable doubt.
Whitaker v. People, supra; People v. Abiodun,
Because defendant did not object to the jury instructions or verdict form at trial, we review for plain error. In determining whether plain error occurred, we consider the jury instructions as a whole.
People v. Miller,
Here, the trial court used the pattern instructions for possession with intent to distribute a controlled substance, the presumption of innocence, and the burden of proof. CJI-Crim. 3:04, 36:02 (1983).
*41 The court also instructed the jury, “In considering the net weight of any material, compound, mixture, or preparation that contains a schedule II controlled substance, you shall exclude the weight of the packaging materials.”
The structure of the verdict form required the jury to find: (1) defendant’s guilt of unlawful possession with intent to distribute cocaine; and (2) the quantity of cocaine. The verdict form does not expressly direct the jury to find the amount of cocaine beyond a reasonable doubt.
Nevertheless, viewing the instructions as a whole, we conclude the record shows that the court properly instructed the jury on the burden of proof, and the structure of the jury form required both findings to convict defendant. Moreover, both the People and defendant repeatedly emphasized during closing arguments that the People had the burden of proof, including as to the quantity of the cocaine.
See People v. Fichtner,
The better practice under recent case law would be to include explicit instructions that quantity must be found beyond a reasonable doubt.
See, e.g., Lopez v. People,
Accordingly, we conclude the trial court did not commit plain error in its instructions to the jury.
IV. Prosecutorial Misconduct
Defendant next contends that prose-cutorial misconduct during the closing rebuttal violated his right to a fair trial and requires reversal. We disagree.
Because defendant did not object at trial, we review the prosecutor’s remarks only for plain error.
See People v. Miller, supra.
To constitute plain error, prosecuto-rial misconduct must be “flagrant or glaringly or tremendously improper” and must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.
People v. Salyer,
Prosecutorial misconduct in closing argument rarely constitutes plain error.
People v. Gordon,
Here, defense counsel commented eleven times during closing argument on the prosecutor’s failure to subpoena witnesses, including six references to the informant. During his rebuttal argument, the prosecutor responded to defense counsel’s repeated references to the absence of the informant by saying: “Has anybody asserted their Fifth Amendment rights? This is all smoke because that’s what their case is based on, smoke.”
Although the first part of the comment seemingly refers to the informant’s assertion of his constitutional rights, the comment is vague.
Cf. People v. Ray,
Furthermore, even assuming that the prosecutor inappropriately speculated on why the informant did not testify, his comments were not flagrantly, glaringly, or tremendously improper. The remarks were brief, were in direct response to defense counsel’s closing argument, and did not relate directly to any elements of the offense.
See People v. Sepeda,
Accordingly, because these comments do not seriously undermine the reliability of the judgment of conviction, they do not constitute plain error. See, e.g., People v. Salyer, supra; People v. Gordon, supra.
V. Batson Challenge
Defendant next contends the People’s peremptory challenges violated the Equal Protection Clauses of the federal and state constitutions. We disagree.
The Equal Protection Clauses of the United States and Colorado Constitutions guarantee that potential jurors will not be excluded from service on account of race or national origin.
Miller-El v. Dretke,
In evaluating allegations of discriminatory jury selection, the court employs a three-step process. First, the defendant must make a prima facie showing that the People excluded jurors based solely on their race. Second, if the defendant makes this showing, then the burden shifts to the People to articulate a race-neutral reason for excluding the jurors in question. This burden requires the People to provide only a facially race-neutral reason, not an explanation that is persuasive or even plausible.
Valdez v. People, supra
(citing
Purkett v. Elem,
We afford due deference to the trial court’s determination of purposeful racial discrimination at the third stage and review only for clear error. Valdez v. People, supra.
Here, defendant objected to the prosecutor’s use of the first two peremptory challenges to strike prospective jurors with Hispanic surnames. The court found defendant made a prima facie showing of discrimination. The prosecutor then replied that the first prospective juror misstated the burden of proof as “beyond all doubt,” which would be an impossible burden to meet. The prosecutor explained that the second prospective juror had revealed a prior concealed weapons charge on his jury questionnaire and may have had contact with the drug subculture based on his “status as a biker.”
The trial court overruled defendant’s objection, finding that “the explanation offered by [the prosecutor] does not inherently contain a reason which would offend the rights of jurors and/or the rights of the defendant to have this juror sit on his panel.” The ruling was made after defendant had had an opportunity to argue that the prosecutor’s reasons were pretextual, and defendant does not contend that, in so ruling, the trial court failed to complete the third step of the Bat-son analysis. Although the trial court’s conclusion could have been more precise, we discern no clear error.
A juror’s understanding and applying the correct burden of proof are critical to the defendant’s receiving a fair trial, and the first prospective juror appeared to misunderstand that burden.
See Morgan v. People,
Defendant’s reliance on
People v. Gabler,
Accordingly, we conclude the People’s use of peremptory challenges did not violate defendant’s equal protection rights.
VI. Disqualified Juror
Defendant next contends the trial court committed reversible error by failing sua sponte to excuse a prospective juror who was employed as a correction specialist with a community corrections program. We disagree.
A trial court “shall sustain a challenge for cause” if the juror is a compensated employee of a public law enforcement agency. Section 16-10-103(1)(k), C.R.S.2004; Crim. P. 24(b)(1)(XII).
Thus, “it is incumbent upon the challenging party to clearly state on record the particular ground on which a challenge for cause is made” in order to “direct appropriate questions to the juror to determine whether the challenge is well taken.”
People v. Russo,
While § 16-10-103(1)(k) and Crim. P. 24(b)(1)(XII) require the trial court to grant a party’s challenge for cause to a juror who is so employed, neither expressly requires the court to excuse a juror sua sponte.
People v. Coney,
Here, defense counsel had the opportunity to question this prospective juror after she disclosed her work as a correction specialist, but did not do so. Because neither side challenged her for cause, we conclude the trial court did not err in allowing this prospective juror to be impaneled. See People v. Coney, supra. In arguing that we should decline to follow People v. Coney, defendant relies on cases in which parties challenged prospective jurors for cause. We find this authority unpersuasive.
Defendant cites no Colorado or United States Supreme Court authority, and we have found none, holding that a trial court’s failure sua sponte to excuse a prospective juror raises a constitutional issue subject to plain error or structural error review. Hence, we reject defendant’s invitation to undertake such a review.
Accordingly, the trial court did not err by failing sua sponte to excuse the prospective juror.
VII. Minimum Sentence
Defendant finally contends the court erred in imposing a sentence of sixteen years because the plain language of former § 18-18-405 referred only to the presumptive range found in former § 18-1-105(1)(a) (now codified at § 18-1.3-401(1)(a), C.R.S.2004), not former § 18-1-105(9.7) (now codified at § 18-1.3-401(10), C.R.S.2004). We are not persuaded.
Because all these statutes have been renumbered, and some have been amended, for clarity we will refer to them as numbered when defendant was sentenced.
Statutory construction is a question of law that we review de novo.
People v. Coleby,
Our primary goal when interpreting a statute is to give effect to the General Assembly’s purpose. In doing so, we begin with the language of the statute. If the statutory language unambiguously sets forth the legislative purpose, we need not apply additional rules of statutory construction. People v. Cooper, 21 P.3d 348 (Colo.2001).
We assume the General Assembly intended that the entire statute be effective. Section 2-4-201(1)(b), C.R.S.2004;
People v. Luther,
Section 18-18-405(3)(a)(III) then stated:
*44 [A]ny person convicted pursuant to [§ 18-18-405(2)(a) ] for knowingly ... possessing with intent to ... distribute ... an amount that is ...
(Ill) One thousand grams or one kilogram or more of any ... schedule I or schedule II controlled substance ... shall be sentenced to the department of corrections for a term greater than the maximum presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1-105(1) (a)
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(Emphasis added). Section 18 — 1— 105(l)(a)(V)(A) provided that a class three felony carries a presumptive range of four to twelve years.
However, another subsection of § 18 — 1— 105 provided that “[u]nlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance with the intent to sell, distribute, manufacture, or dispense, as defined in section 18-18-405” is an extraordinary risk of harm crime, and the “maximum sentence in the presumptive range shall be increased by four years.” Section 18-l-105(9.7)(a), (b)(XI);
People v. Coleman,
We perceive no conflict between these statutory provisions. In § 18-18^105 the General Assembly defined the elements of the crime of possession with intent to distribute and incorporated the presumptive range statute found in former § 18-l-105(l)(a). Section 18-18-405 does not preclude the finding that an offense is an extraordinary risk crime and application of former § 18-1-105(9.7) to increase the presumptive range found in subsection (l)(a).
We also reject defendant’s interpretation of § 18-18-405(3)(a)(III) because it leads to an unreasonable result. The statute provides enhanced sentencing for possession with intent to distribute. That offense is also always an extraordinary risk crime. Defendant’s argument that his sentence should be limited to the presumptive range in former § 18-l-105(l)(a) would nullify the General Assembly’s intent to enhance the sentence for possession because it is “an extraordinary risk” crime under former § 18-1-105(9.7).
Accordingly, we conclude the trial court did not err by sentencing defendant to sixteen years in the DOC.
The judgment of conviction and sentence are affirmed.