. Although this right is fundamental, it is not without limit, People v. Mojica-Simental, 73 P.3d 15, 19 (Colo. 2003), and can be waived, Melendez-Diaz, 129 S.Ct. at 2534 n. 3. A defendant's counsel may waive his client's confrontation right.
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.
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. [People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003).]
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. [People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003).]
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. Coleman appealed, arguing that admission of the lab report in the second trial without the in-court testimony of the technician who prepared the report violated his right to confrontation under both the United States and Colorado Constitutions. Citing this Court's decision in People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003), Coleman argued that section 16-3-309(5) was unconstitutional as applied in his case to allow admission of the lab report. In an unpublished opinion, the court of appeals rejected this argument.
The subject matter of section 16-3-309 is the "admissibility of laboratory test results" in any criminal case under various circumstances, as its title suggests. As described in People v. Mojica-Simental, 73 P.3d 15, 18 (Colo. 2003), the purpose of subsection (5) is to "streamline the trial process by admitting a report without the testimony of the technician in cases where the parties do not feel that the technician's testimony would be useful." Moreover, the legislative history for the section includes no discussion of the term "the criminalistics laboratory," nor does it include any indication that the General Assembly sought to limit the term to include only the CBI or other state-run criminalistics laboratories that are part of local law enforcement agencies.
In People v. Mojica-Simental, 73 P.3d 15, 18-19 (Colo. 2003), the supreme court held that when a defendant notifies the prosecution at least ten days before trial that he or she wants the laboratory technician present at trial, the request prevents the admission of the laboratory report without the foundational testimony of the appropriate, lab technician. The court stated that when a defendant wants to contest the reliability or accuracy of a lab test, a lab technician's presence is crucial to secure the defendant's right to confront the witnesses against him or her.
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) ("Forensic laboratory reports are admissible in criminal proceedings without establishing the usual foundation, absent a request that the technician be made available at trial.").
Thus, 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). Here, the People indicated before trial that because defendant had not requested that the technician testify, they intended to introduce the laboratory report into evidence.
¶16 The plain language of these two statutes permits us to give effect to both provisions. A specific or local provision may apply to the exclusion of a general provision, but that rule only applies where “the conflict between the provisions is irreconcilable.” § 2–4–205 ; see also People v. Mojica–Simental, 73 P.3d 15, 18 (Colo. 2003) (“While we favor a more specific provision over a general one when there is conflict between statutory provisions, in the absence of such a conflict, we give effect to both statutes.”). Here, there is no such conflict.