Peo v. Gates

• Court: Colorado Court of Appeals
• Decided: February 20, 2025
• Docket: 22CA2210
• Status: Unpublished

Opinion

22CA2210 Peo v Gates 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2210 Larimer County District Court No. 18CR1546 Honorable Susan Blanco, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mariah Rose Gates,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Mariah Rose Gates, appeals the judgment of

conviction entered on jury verdicts finding her guilty of possession

of methamphetamine and possession of drug paraphernalia. We

affirm.

I. Background

¶2 Gates and a companion were sleeping in the companion’s car

when police contacted them. Her companion was arrested on

several outstanding warrants. Police searched two backpacks that

were on the floor of the car. In one of the backpacks, they found

syringes and a white crystalline substance.

¶3 Police arrested Gates. She told police that she had additional

contraband on her person, and indicated it was in her underwear.

Because the arresting officers were all male, they took Gates to the

jail to be searched by a female officer.

¶4 At the jail, the arresting officers handed Gates over to a female

officer who took Gates into a private restroom to conduct the

search. The female officer emerged with a glass pipe and two

baggies of a substance that eventually tested positive for

methamphetamine. The female officer handed the pipe and drugs

to the arresting officer, who then booked those items into evidence.

1 ¶5 Gates was charged with possession of methamphetamine and

possession of drug paraphernalia based on the items found in her

backpack and on her person. At trial, the arresting officer testified

about the arrest and described how he had received the items found

on Gates’ person from the female officer. But he made clear that he

had not been present for the search in the private restroom.

¶6 The female officer who conducted the search also testified.

But she could not recall having searched Gates specifically and

testified only to her standard practice in conducting such searches.

¶7 The jury found Gates guilty of possessing drugs and drug

paraphernalia. In response to special interrogatories, the jury

found that she possessed the drugs and paraphernalia found on

her person, but not the drugs and paraphernalia found in the

backpack. She was convicted and sentenced accordingly.

¶8 Gates appeals. First, she argues that the trial court erred by

admitting the physical evidence found during the search of her

person because the prosecution failed to establish a sufficient chain

of custody for that evidence. Second, she argues that the court

plainly erred by admitting certain testimony from the prosecution’s

2 forensic chemist. We conclude that Gates waived the first

argument and the second one does not warrant relief.

II. Drugs and Pipe Found on Gates’ Person

¶9 On appeal, Gates argues that the court erred by admitting the

items found on her person because the female officer was unable to

testify that she found those items on Gates. We conclude that

defense counsel waived this argument at trial.

¶ 10 Waiver is the intentional relinquishment of a known right.

People v. Rediger, 2018 CO 32, ¶ 39. It extinguishes error and

appellate review of the waived issue. Id. at ¶ 40.

¶ 11 To establish waiver, the record must show that either

defendant or defense counsel knew of the right before relinquishing

it. See People v. Bott, 2019 COA 100, ¶ 20. Evidence of this

knowledge need not be explicit. We “infer an intent to waive when

the record demonstrates that counsel was aware of the grounds for

an objection but failed to raise it.” People v. Garcia, 2024 CO 41M,

¶ 46.

¶ 12 That is what happened here. The record shows, though not

explicitly, that defense counsel was aware of the grounds that

3 would support a chain-of-custody challenge to the admission of this

evidence but failed to raise it.

¶ 13 The prosecution admitted the items recovered during the

search of Gates’ person through the first witness at trial, the male

officer who received the items from the female officer. The

prosecution first moved to admit the pipe, and defense counsel

conducted voir dire on the exhibit.

[Defense counsel]: Deputy, you indicated you, yourself, did not retrieve this pipe from Ms. Gates’ underwear, correct?

[Male officer]: That’s correct.

[Defense counsel]: And you were not present in the room when the pipe was removed from her underwear?

[Male officer]: I was in the booking vestibule, and [the female officer] took her to the inmate bathroom, which is in the booking vestibule. I didn’t follow her into the bathroom. [The female officer] didn’t leave the booking vestibule, though, as she recovered the items.

[Defense counsel]: Okay. I guess maybe I should be a little more clear with my question. You didn’t see that pipe come out of Ms. Gates’ underwear?

[Male officer]: No. She was allowed to go into the bathroom for her privacy.

4 [Defense counsel]: Okay. And it was [the female officer] who gave you the pipe after she claims she removed it?

[Male officer]: Yes.

[Defense counsel]: Okay. I don’t have anything else.

[Court]: Do you object?

[Defense counsel]: No.

¶ 14 The trial court then admitted the pipe and the prosecution

immediately sought to admit the drugs found on Gates. The court

asked defense counsel if there was any objection and defense

counsel said no without requesting voir dire on the drugs. The

court then admitted the drugs as well.

¶ 15 Defense counsel’s questions during voir dire made clear that

he understood that at that point in the trial the prosecution had

presented no testimony from anyone present during the search of

Gates’ person who could identify the specific items discovered on

Gates based on having witnessed the search. Defense counsel

clearly thought this was problematic — after the male officer

testified that he was not present for the search, defense counsel

followed up to emphasize the problem, asking, “You didn’t see that

5 pipe come out of Ms. Gates’ underwear?” Yet when offered the

chance to object to the admission of the pipe, defense counsel

declined.

¶ 16 We recognize that we must indulge every reasonable

presumption against waiver. See Rediger, ¶ 39. But the only

reasonable reading of this record is that defense counsel was aware

of the grounds of the chain-of-custody objection to the admission of

the pipe and chose not to object. We must therefore conclude that

Gates waived the chain-of-custody challenge to the admission of the

pipe that she seeks to raise on appeal.

¶ 17 We come to the same conclusion about the chain-of-custody

challenge to the admission of the drugs found on Gates. Defense

counsel’s line of questioning during voir dire concerning the pipe

was identically applicable to the drugs found on Gates. Although

defense counsel did not separately voir dire the witness about the

drugs, they were admitted immediately after the voir dire and

admission of the pipe, with defense counsel again saying he had no

objection to the admission. Under these circumstances, we must

conclude that defense counsel was aware of the chain-of-custody

6 objection to the admission of the drugs and again chose not to

object. Accordingly, this argument was also waived.

¶ 18 We are not persuaded otherwise by the fact that defense

counsel attempted to raise the chain-of-custody issue later at trial.

After the evidence had been admitted, the female officer testified

that she had no recollection of Gates, the search, or what the

search revealed. Later, after the female officer concluded her

testimony and the jury had been released for the evening, defense

counsel sought to challenge the admission of the already-admitted

pipe and drugs found on Gates. Defense counsel argued that the

female officer was the only person who could properly authenticate

the pipe and drugs, and because she was unable to do so, they

should not have been admitted.

¶ 19 This argument was too little too late. Challenges to the

admission of evidence must be timely. CRE 103(a)(1). Defense

counsel’s argument was not. And because the evidence had already

been admitted, the trial court could not have provided a meaningful

remedy (short of declaring a mistrial, which Gates never requested).

Cf. People v. Valera-Castillo, 2021 COA 91, ¶¶ 23-25 (holding that

an untimely Batson claim — raised after the court had dismissed

7 the entire venire — was unreviewable on appeal because the trial

court could not have provided a meaningful remedy).

¶ 20 We therefore conclude that because Gates waived her

appellate argument challenging the admission of the pipe and drugs

found on her person, we cannot address its merits.

III. Forensic Chemist Testimony

¶ 21 Gates argues that the court erred by allowing the forensic

chemist who tested the substance found on Gates to testify

generally about quality control procedures in her laboratory. Gates

contends that this testimony was either irrelevant under CRE 401

or inadmissible under the CRE 403 balancing test.

¶ 22 Gates did not object to this testimony, and we therefore review

it for plain error. See Hagos v. People, 2012 CO 63, ¶ 14. Plain

error must be both obvious and substantial. Id. A substantial

error is one that so undermined the fundamental fairness of the

trial that it casts serious doubt on the reliability of the conviction.

Id. We perceive no plain error.

¶ 23 The forensic chemist testified that she performed chemical

testing on the substance found on Gates and it tested positive for

methamphetamine. But the challenged part of her testimony came

8 before that when she was describing the general procedures in her

laboratory.

[Prosecutor]: And when you do your testing and you obtain your results on these items, is there any kind of quality control or review that happens in addition to your analysis of these substances?

[Forensic chemist]: Yes. Every case that I perform in the laboratory is subjected to a — what we refer to as a technical review. So another qualified analyst reviews our notes, our reports, everything involved with the case. And should that pass not only mine but then their scrutiny as well, then the report will be released.

¶ 24 We first reject Gates’ argument that this testimony was not

relevant. The testimony made it more likely that the positive test

results for methamphetamine were reliable. See CRE 401 (Evidence

is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable.”).

¶ 25 We also reject Gates’ CRE 403 argument. CRE 403 provides

that even relevant evidence is inadmissible if its probative value is

substantially outweighed by the danger of unfair prejudice. But in

her opening brief, Gates does not identify any unfair prejudice that

9 resulted from this testimony. All she says is that the testimony

“allowed the prosecution to introduce irrelevant evidence that

bolstered the government’s case.” As explained above, the

testimony was relevant. And all relevant evidence bolsters the

prosecution’s case — there is nothing unfairly prejudicial about that

unless the way it bolsters the prosecution’s case is improper. Gates

does not explain how it was improper here. We therefore reject

Gates’ CRE 403 argument as skeletal, conclusory, and unsupported

by substantial argument. See People v. Wallin, 167 P.3d 183, 187

(Colo. App. 2007) (declining to address skeletal arguments

presented in a perfunctory or conclusory manner).

IV. Disposition

¶ 26 The judgment of conviction is affirmed

JUDGE HARRIS and JUDGE GROVE concur.