In re People of State

• Decision Date: 20 June 2011
• Docket Number: No. 10SA341.,10SA341.
• Citation: 252 P.3d 1042
• Parties: In re The PEOPLE of the State of Colorado, Plaintiffv.Robert Keith RAY, Defendant.
• Court: Colorado Supreme Court

252 P.3d 1042

In re The PEOPLE of the State of Colorado, Plaintiff

v.Robert Keith RAY, Defendant.

No. 10SA341.

Supreme Court of Colorado, En Banc.

April 25, 2011.As Modified on Denial of Rehearing June 20, 2011.

Carol Chambers, District Attorney, Eighteenth Judicial District, Ann B. Tomsic, Chief Deputy District Attorney, Centennial, Colorado, Attorneys for Plaintiff.

Collins, Liu & Assoc., L.L.P., Maria Liu, Greeley, Colorado, Mulligan & Mulligan, PLLC, Mary Clair Mulligan, Boulder, Colorado, Gehring Law Firm, Ltd., Christopher H. Gehring, Denver, Colorado, Attorneys for Defendant.John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Amicus Curiae Attorney General John Suthers.Chief Justice BENDER delivered the Opinion of the Court.

I.

In this original proceeding pursuant to C.A.R. 21, we consider whether the trial court struck the correct balance between, on the one hand, the defendant's right to discovery of key prosecution witnesses' addresses during post-conviction proceedings after the imposition of the death penalty, and, on the other hand, an extraordinary threat to witness safety in light of the fact that the defendant was sentenced to death for murdering a witness in a previous case. The prosecution petitioned for relief from the trial court's order that lifted a protective order and required the prosecution to disclose to Robert Ray's post-conviction counsel the addresses of thirteen witnesses, eight of whom are in the witness protection program. We issued a rule to show cause why the trial court's order should not be vacated.

Here, the trial court found that the prosecution demonstrated an extraordinary and compelling threat to witness safety based on Ray and his associates' murder of a key prosecution witness in a previous case, their threats to witnesses in this case, their culture of retaliation, and the possibility of their orchestrating retaliation from prison. Conversely, post-conviction counsel made a minimal showing of why the witnesses' addresses are material to post-conviction proceedings. Given the unique factual circumstances of this case, where Ray killed both a prosecution witness and an innocent bystander, we hold that post-conviction counsel's minimal showing of materiality did not overcome the prosecution's showing of an extraordinary and compelling threat. The trial court abused its discretion by lifting the protective order and requiring the disclosure of the witnesses' addresses. Hence, we now make the rule absolute and remand this case to the trial court for proceedings consistent with this opinion.

II.

The trial court ruling at issue in this original proceeding arises out of post-conviction proceedings concerning the imposition of the death sentence for Robert Ray, a drug dealer with connections to a street gang. Ray was convicted of first degree murder for killing Javad Marshall–Fields, a key prosecution witness, and his fiancée Vivian Wolfe. Marshall–Fields became a prosecution witness because he was a shooting victim of Ray's and a witness to the murder of Gregory Vann by Sir Mario Owens at Lowry Park in Aurora.

Owens shot and killed Vann as he tried to break up a fight during a free picnic and rap music contest that Vann had helped organize at Lowry Park. To facilitate Owens's escape, Ray shot Elvin Bell (Vann's brother) five times and Marshall–Fields twice. Both Bell and Marshall–Fields survived. Ray was initially charged with accessory to murder.¹

Leading up to Ray's Lowry Park trial, Ray's trial counsel provided him with discovery, from which Ray and Owens were able to discern the key prosecution witnesses against them, including Marshall–Fields and Askari Martin.² On several occasions, Ray offered Jamar Johnson $10,000 to kill Marshall–Fields and initially asked him to kill Martin. During a pretrial hearing for which Marshall–Fields and Martin were subpoenaed, Ray made a comment in a court-house elevator that snitches should die and that Martin would be dead before he testified. Even though Martin was unaware of these comments, he was so fearful that he failed to appear at the next court date, despite being under subpoena. After Martin failed to appear, Ray continued to ask Johnson to kill Marshall–Fields, but no longer requested that he kill Martin. Ray and his associates also conducted surveillance of Marshall–Fields, made a number of threats against him, and offered him money not to testify.

One week before Ray's accessory to murder trial was scheduled to begin, Owens and an associate, Perish Carter, pulled alongside Marshall–Fields and Wolfe's vehicle and Owens opened fire, killing both. Ray, who was out on bond, was not present at the shooting but instead went to a liquor store in order to create a video alibi by appearing in surveillance footage.³

Based on the difficulties law enforcement faced getting witnesses to cooperate due to fears of reprisal, the prosecution empanelled a special grand jury to compel witness testimony. The grand jury indicted Ray, Owens, and Carter. The prosecution placed a large number of witnesses into witness protection and relocated some out of state. For the other witnesses who did not wish to be placed in witness protection but were still fearful for their lives, the prosecution promised to keep their addresses from defense counsel and the defendants to secure their cooperation. The trial court issued protective orders preventing the disclosure of these witnesses' addresses. Prior to trial, the trial court created a procedure whereby defense counsel could call witnesses from the prosecution's office, without learning their phone numbers, to determine if they were willing to be interviewed.

A jury convicted Ray of, among other things, two counts of first degree murder for the killings of Marshall–Fields and Wolfe, conspiracy to commit first degree murder, solicitation to commit murder, intimidating a witness, and bribery of a witness. The jury returned a death sentence after finding several aggravating factors, including that Ray committed the murders to avoid prosecution.⁴

The trial court appointed post-conviction counsel in accordance with Colorado's statute providing for unitary review in death penalty cases. § 16–12–201 to –210, C.R.S. (2010). The trial court issued a minute order requiring the prosecution to provide the court and post-conviction counsel with a list of witnesses currently in the witness protection program, subject to a protective order that the list and any witnesses' addresses could not be shared with Ray or his family.

The prosecution filed a motion asking the court to extend to post-conviction proceedings all existing protective orders for eighteen witnesses enrolled in the witness protection program and for nine witnesses not enrolled in the witness protection program.⁵ The prosecution also asked the court to prohibit post-conviction counsel from determining the locations of these witnesses through independent investigation.

The trial court held six days of hearings to consider the prosecution's motion to continue the trial court's protective order. The trial court asked the prosecution to telephone the witnesses who were the subject of their motion, with post-conviction counsel present, to determine whether they were willing to speak with post-conviction counsel or to have their addresses disclosed. The prosecution did not contact either victims or victim family members. All of the witnesses at issue in this original proceeding who the prosecution was able to contact indicated that they did not wish to speak with post-conviction counsel. Some of these witnesses vehemently objected, while others were more equivocal, indicating that they might be willing to talk with post-conviction counsel at a later date.⁶

Many of these witnesses have previously testified, in some instances, numerous times. For example, some have testified before the grand jury, at preliminary hearings, and at all three trials for Ray, Owens, and Carter. The prosecution has also given post-conviction counsel the updated criminal histories for each witness.

At the onset of the hearings the trial court announced a framework in which it would decide whether to disclose the witnesses' addresses. The trial court required the prosecution to demonstrate an extraordinary or compelling threat to witness safety, in order to justify non-disclosure. The trial court then balanced this risk against the materiality of the witnesses' current addresses to post-conviction counsel. The court derived this approach by adhering to two of our cases: People v. Rodriguez, 786 P.2d 1079 (Colo.1989) (holding that the prosecution was required to demonstrate extraordinary or compelling circumstances to prevent the defendant's discovery of information that was possibly exculpatory, but not constitutionally material, during post-conviction review of a death sentence); and People v. District Court, 933 P.2d 22 (Colo.1997) (balancing the defendant's confrontation rights to know witnesses' addresses against witness safety).

Some evidence presented at the hearing, while contested, indicated that Ray, Owens, and their family members threatened witnesses, before they were charged with killing Marshall–Fields and Wolfe, throughout their trials, and after their convictions. By way of example, some evidence consisted of the following: (1) Ray and Owens wore T-shirts that said “stop snitching” (possibly before and after killing Marshall–Fields and Wolfe); (2) Marlena Taylor, who was a prosecution witness because she unwittingly came into possession of the guns believed to have been used in the murders that were in her boyfriend's car, received frightening phone calls from unidentified men asking her to give them the guns (Taylor is currently in the witness protection program and is subject to the court's disclosure order); and (3) Ray, who believed...