dissenting.
In Mojica-Simental, we held that section 16-3-3809(5), C.R.S. (2006), was facially constitutional because it could be constitutionally applied with a voluntary, knowing, and intentional waiver of the right to confront witnesses by the defendant or his attorney. 78 P.3d 15, 20 (Colo.2008). . Rather than follow our precedent, the majority overruled the basic foundation of Mojica-Simental in Hi-nojos-Mendoga, also announced today. The majority then applies Hinojos-Mendoza to the facts of this case and finds that Coleman waived his fundamental rights, despite evidence to the contrary. Maj. op. at 660. For the reasons set forth in my dissent in Hino-jos-Mendoza, I disagree with the majority's holding that section 16-3-809(5) can be constitutionally applied without a proper waiver. I therefore respectfully dissent.
Pursuant to section 16-8-809(5), Coleman's attorney in the case before us requested that the lab technician testify at trial, but the notice was untimely. The attorney stated that the reason for the delay was that Coleman complied with the statute and gave proper notice before his first trial, and she believed that request was still effective. However, when she reviewed the transcripts from the first trial, she discovered that the lab technician's presence had been waived. She then immediately gave notice that the lab technician would be required to testify. She also put the lab technician under a subpoena. The lab technician declared that he was prepared to appear any time during trial.
Despite the lack of waiver by Coleman, the trial court admitted the report without the lab technician's testimony pursuant to section 16-3-309(5). Coleman specifically attempted to exercise his Sixth Amendment right to cross-examine the lab technician. His objection to the admission of the report without the lab technician's testimony was overruled. Therefore, he did not voluntarily, knowingly, and intentionally waive that right and he was not able to confront the lab technician. Under our holding in Mojica-Simental, requiring a proper waiver before application of the statute, admission of the report was a violation of Coleman's fundamental right to confront witnesses. 73 P.3d at 20-21; see also Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding that admission of ex parte affidavits without cross-examination violates the Sixth Amendment).
The majority leaves Mojicao-Simental's holding an empty shell by eliminating the requirement of a proper waiver through the use of an irrebuttable presumption resulting in an automatic waiver and adopts Hingjos-Mendoza in this case. Because application of section 16-3-309(5) violates Coleman's fundamental right to confront witnesses contrary to our longstanding constitutional requirements for waiver, I dissent. _