People v. Bachofer
| Decision Date | 24 January 2008 |
| Docket Number | No. 03CA1311.,03CA1311. |
| Citation | 192 P.3d 454 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Baruch J. BACHOFER, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Todd E. Mair, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge RUSSEL.
Defendant, Baruch J. Bachofer, appeals the judgment of conviction entered on jury verdicts finding him guilty of felony menacing, reckless endangerment, false imprisonment, and failure to leave premises. He also appeals the sentences imposed for menacing and failure to leave premises. We vacate those sentences, remand for resentencing, and otherwise affirm.
Bachofer engaged in a nine-hour standoff with police. During the standoff, he barricaded himself inside his motor home with his fifteen-year-old girlfriend, N.S., and fired shots at the officers.
Bachofer was tried on eighteen counts of attempted first degree murder (extreme indifference), five counts of attempted first degree murder (after deliberation), and one count each of first degree kidnapping, failure to leave premises, and sexual assault. In addition to the charged offenses, the court instructed the jury on the lesser offenses of reckless endangerment, felony menacing, and false imprisonment.
Bachofer's theory of defense combined a general denial with an assertion of self-defense:
Mr. Bachofer asserts that ... he did not kidnap [N.S.] or attempt to kill anyone. Following the detonation of the flash-bang device, the firing of multiple sniper rounds at his motor home and the shooting of tear gas into his motor home he believed that the police were trying to kill him and [N.S.]
Mr. Bachofer and [N.S.] pretended that she was a hostage in an attempt to deceive the police into letting him go.
Mr. Bachofer fired shots in order to tell the police to stay back. He was not acting with extreme indifference to human life and did not create a grave risk of death to anyone when he attempted to protect himself and [N.S.] from harm that he believed was imminent.
The jury acquitted Bachofer of attempted first degree murder, kidnapping, and sexual assault. It convicted him of seventeen counts of reckless endangerment, five counts of felony menacing, one count of false imprisonment, and one count of failure to leave premises.
The trial court sentenced Bachofer to forty-two years in prison, as follows: (1) an aggravated range term of six years for each of the five felony menacing counts, to be served consecutively; (2) a consecutive aggravated range sentence of twelve years for failure to leave premises; and (3) concurrent terms of six to twelve months on the remaining misdemeanor counts.
Before trial, Bachofer filed a motion to dismiss all charges. He asserted that the police had removed tarps from the windows of his motor home, thereby destroying evidence in violation of the due process principles announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court denied this motion.
Bachofer now contends that the trial court erred in denying his motion. We disagree.
To establish a due process violation for the failure to preserve exculpatory evidence, the defendant must show three things: (1) the evidence was destroyed by state action; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; and (3) the defendant was unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); People v. Braunthal, 31 P.3d 167, 173 (Colo.2001).
If the evidence was not apparently exculpatory when it was destroyed and was merely potentially useful, the defendant must show that the state agents acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); People v. Wyman, 788 P.2d 1278, 1279 (Colo.1990).
Here, we assume that (1) significant information was lost when the tarps were removed, and (2) the missing information might have been favorable to Bachofer because it could have provided a basis for impeaching the bullet-trajectory analysis offered by a prosecution witness. We nevertheless conclude that Bachofer suffered no due process violation. Bachofer did not show that the tarps were removed in bad faith, nor did he show that the placement of the tarps had an exculpatory value that was apparent when the tarps were removed.
Moreover, any potential exculpatory value was nullified by the jury's decision to acquit Bachofer of attempted first degree murder. An alternative bullet-trajectory analysis would not have been helpful in defending against the charges of felony menacing and reckless endangerment because it was undisputed that Bachofer shot in the general direction of the police. Nor would it have been helpful in defending against the charges of false imprisonment or failure to leave premises.
Before trial, Bachofer subpoenaed records from N.S.'s schools, juvenile centers, treatment facilities, and former employer. The trial court ruled that the subpoenas were too broad and quashed them under Crim. P. 17(c). The court nevertheless reviewed some records in camera to determine whether they contained any reference to Bachofer or the incident. After reviewing the records, the court declined to disclose any information.
Bachofer now argues that the trial court erred in refusing to order the disclosure of school records and medical records. We find no basis for reversal.
The parties present this issue: May the defendant obtain school records of a student who is a witness in a criminal case without the consent of the student or the student's parents? We conclude that the answer is yes.
This issue is governed, at least initially, by section 22-1-123, C.R.S.2007. This state statute ensures that Colorado schools comply with federal law — namely, the Family Educational Rights and Privacy Act of 1974 (FERPA), which is codified as 20 U.S.C. § 1232g. As pertinent here, the state statute provides: "A school district shall not release the education records of a student to any person, agency, or organization without the prior written consent of the parent or legal guardian of the student except as otherwise permitted in 20 U.S.C. sec. 1232g(b)." § 22-1-123(3), C.R.S.2007.
FERPA in turn employs "a carrot-and-stick approach" to discourage the unauthorized disclosure of confidential school records. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 68 (1st Cir.2002) (). FERPA generally contemplates that school records may be released only if the student's parents have consented in writing. 20 U.S.C. § 1232g(b)(1), (b)(2)(A). But it also lists several exceptions.
We consider two exceptions here.
FERPA contemplates that school records may be released in response to a grand jury subpoena or "any other subpoena issued for a law enforcement purpose." 20 U.S.C. § 1232g(b)(1)(J)(ii).
Bachofer argued at trial that a subpoena duces tecum, issued by a defendant in a criminal case, is a "subpoena issued for a law enforcement purpose" under this exception. We conclude that the trial court properly rejected this argument.
Because FERPA does not define "law enforcement purpose," we assign the term its plain and ordinary meaning. See People v. Yascavage, 101 P.3d 1090, 1094 (Colo.2004). And we conclude that a subpoena is issued for a law enforcement purpose if it is intended to advance the "detection and punishment of violations of the law." Black's Law Dictionary 901 (8th ed.2004); see also United States v. Bertie County Bd. of Educ., 319 F.Supp.2d 669, 671-72 (E.D.N.C.2004) ().
Because Bachofer's subpoenas were not intended to advance the detection or punishment of any legal violation, the trial court properly declined to order disclosure under this exception.
FERPA also contemplates the release of school records "in compliance with judicial order, or pursuant to any lawfully issued subpoena," if the student or parents have been notified. 20 U.S.C. § 1232g(b)(2)(B).
Colorado's appellate courts have not previously addressed the discoverability of school records under the combined operation of section 22-1-123(3) and § 1232g(b)(2)(B). But other courts have addressed this issue under FERPA and similar state statutes, and they have concluded that FERPA does not create a privilege against disclosure and that school records may be discovered under § 1232g(b)(2) upon a proper showing of need. See Zaal v. State, 326 Md. 54, 602 A.2d 1247, 1255-56 (1992) (); see also Catrone v. Miles, 215 Ariz. 446, 160 P.3d 1204, 1211-12 (Ct.App.2007) ().
We agree with these observations. Neither the federal nor the state statute erects an absolute privilege against disclosure. See § 1232g; § 22-1-123(3). Instead, the statutes protect the privacy rights of students and parents through a general rule of confidentiality that may be overcome in certain circumstances. Accordingly, we conclude that a court may order the release of confidential school records to a party in a criminal case upon a proper showing of need.
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