People v. Brown

• Decision Date: 10 June 2019
• Docket Number: Supreme Court Case No. 18SA237
• Citation: 442 P.3d 428
• Parties: In Re The PEOPLE of the State of Colorado, Plaintiff, v. Brandon D. BROWN, Defendant.
• Court: Colorado Supreme Court

442 P.3d 428

In Re The PEOPLE of the State of Colorado, Plaintiff,

v.Brandon D. BROWN, Defendant.

Supreme Court Case No. 18SA237

Supreme Court of Colorado.

June 10, 2019

Attorneys for Plaintiff: Beth McCann, District Attorney, Johanna G. Coats, Deputy District Attorney, Denver, Colorado

Attorneys for Defendant: Appeal to Justice, LLC, Amy D. Trenary, Broomfield, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 After being charged with first degree murder as an adult in district court, Brandon Brown exercised his statutory right to request a "reverse transfer" to juvenile court. In doing so, he asks us to address whether he may temporarily waive privilege as to certain information at the reverse-transfer hearing without suffering a continued waiver at trial.¹

¶2 We hold that he may not. Nothing in the reverse-transfer statute gives Brown the ability to make such a limited waiver. And, neither common law scope-of-waiver limitations nor constitutional principles regarding impermissibly burdening rights change that result. By disclosing otherwise privileged information in open court during a reverse-transfer hearing, Brown would waive privilege as to any such information at trial. Because we agree with the trial court's ruling to the same effect, we discharge our rule to show cause.

I. Facts and Procedural History

¶3 Brandon Brown was charged as an adult in district court for crimes alleged to have taken place in 2012, when he was seventeen years old. The district attorney charged Brown with one count of first degree murder, eight counts of attempted first degree murder, and one count of conspiracy to commit aggravated robbery. Brown exercised his statutory right to seek a reverse transfer, a process that could result in his case being transferred from district court, where he would be tried as an adult, to juvenile court, where he would face prosecution under the Children's Code. See § 19-2-517(3)(a), C.R.S. (2018) (outlining the procedures for transferring a case from district court to juvenile court).

¶4 Before the reverse-transfer hearing, however, Brown sought a protective order, requesting that the district court prohibit the prosecution from using at trial "[a]ny evidence presented at the reverse-transfer hearing, and/or in briefs related to the issue of reverse-transfer." In addition to this wide-ranging request, Brown specifically singled out:

• expert reports;

• medical, dental, mental health, and/or psychological evaluations, screenings, or treatment, and any records underlying such evaluations or records upon which such evaluations are based;

• school records;

• Department of Human Services records;

• records of dependency and neglect proceedings;

• confidential records maintained by agencies of the judicial department or executive branch; and

• any other confidential records.

¶5 The district court denied the request for the protective order altogether. It found that it was "unlikely that the type of evidence generally presented at a reverse transfer hearing would be relevant and admissible at a trial." But, in any event, it held that "neither case law nor statute" empowers a defendant at a reverse-transfer hearing to introduce privileged information without waiving privilege as to that information.

¶6 We granted Brown's petition for a rule to show cause pursuant to C.A.R. 21. He argues that the district court abused its discretion by refusing to issue the protective order.

II. Analysis

¶7 We first address why jurisdiction is appropriate under C.A.R. 21. Because this is a question of first impression as to which a remedy on appeal could prove inadequate, we choose to exercise our original jurisdiction. Second, we identify the standard of review. Third, we analyze whether Brown can partially waive privilege during the reverse-transfer hearing. We conclude that any disclosure of privileged information at the reverse-transfer hearing would constitute a waiver at trial.

A. Original Jurisdiction

¶8 We generally hear petitions under C.A.R. 21 that "raise issues of first impression" and "are of significant public importance." See People v. Johnson , 2016 CO 69, ¶ 7, 381 P.3d 316, 318 (quoting People v. Steen , 2014 CO 9, ¶ 8, 318 P.3d 487, 490 ). Additionally, we have discretion to exercise our original jurisdiction under C.A.R. 21 when "a remedy on appeal would prove inadequate." Id. at ¶ 8, 381 P.3d at 318 (quoting People v. Sisneros , 55 P.3d 797, 799 (Colo. 2002) ).

¶9 All three considerations apply here. Whether a defendant may partially disclose privileged information in a reverse-transfer hearing is a question of first impression with significant public importance, and the issue is likely to recur. Additionally, as a practical matter, the wrongful disclosure of privileged information is irremediable on appeal, as the privileged information will have been disclosed. See Sisneros , 55 P.3d at 799.

¶10 For all these reasons, we choose to exercise our original jurisdiction here.

B. Standard of Review

¶11 While we review a trial court's decision denying a protective order for abuse of discretion, Bond v. Dist. Court , 682 P.2d 33, 38 (Colo. 1984), we review questions of law, such as the interpretation of the reverse-transfer statute, de novo, Johnson , ¶ 9, 381 P.3d at 318 (citing Bostelman v. People , 162 P.3d 686, 689 (Colo. 2007) ).

C. Brown May Not Partially Waive Privilege

¶12 Brown asserts privilege as to numerous documents, evaluations, and testimony by some witnesses. And although the parties disagree as to whether some of this correspondence and other evidence is privileged information, that level of the analysis is potentially rendered moot by another: Even if all that Brown seeks to protect is privileged, would he waive any such privilege upon disclosure of the information during a reverse-transfer hearing? To answer this question, we first turn to the language of the reverse-transfer statute.

1. The Reverse-Transfer Statute

¶13 The plain language of the statute doesn't explicitly give Brown the ability to make a limited waiver of privilege.

¶14 The statute provides that "[a]fter a juvenile case has been charged by direct filing ... in district court, the juvenile may file in district court a motion to transfer the case to juvenile court." § 19-2-517(3)(a). After describing some procedural requirements (time to file, responses by the district attorney, and so on), the statute lists factors for a court to consider "[i]n determining whether the juvenile and the community would be better served by" adjudicating in juvenile or district court. See § 19-2-517(3)(a)–(b).

¶15 Among those factors are:

• "age ... and the maturity of the juvenile as determined by considerations of the juvenile's home, environment, emotional attitude, and pattern of living";

• "record and previous history of the juvenile in prior court-related matters";

• "current and past mental health status";

• "likelihood of the juvenile's rehabilitation by use of the sentencing options available in the juvenile and district courts"; and

• "previous[ ] commit[ment] to the department of human services."

§ 19-2-517(b)(IV), (V), (VI), (VII), (X).

¶16 In interpreting a statute, we give words and phrases their plain and ordinary meaning, read them in context, and construe them according to the rules of grammar and common usage. See Doubleday v. People , 2016 CO 3, ¶ 19, 364 P.3d 193, 196. Our primary task is to "ascertain and effectuate the intent of the General Assembly." Turbyne v. People , 151 P.3d 563, 567 (Colo. 2007). Statutes should be applied as written, and we do not add or subtract words. See State v. Medved , 2019 CO 1, ¶ 19, 433 P.3d 33, 37 ("[I]n interpreting a statute, we must accept the General Assembly's choice of language and not add or imply words that simply are not there." (quoting People v. Diaz , 2015 CO 28, ¶ 15, 347 P.3d 621, 625 )); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012) ("[An] absent provision cannot be supplied by the courts.").

¶17 While the enumerated factors might implicate certain potentially privileged information (or at least confidential information), nowhere does the statute grant Brown the right to disclose that information solely for the purposes of reverse transfer. The statute is completely silent as to limited disclosure. And it isn't our role to add such language.²

¶18 We therefore decline the invitation to effectively do so here.³

2. Waiving Privilege Extends from the Reverse-Transfer Hearing to Trial

¶19 Looking beyond the plain language of the statute, Brown argues that, as a matter of common law, waiver is "limited to the purposes for which the information is placed at issue." That "limited" purpose here, he contends, is the reverse-transfer hearing. As a result, any disclosure must be confined to that hearing. We disagree.

¶20 Both parties agree that privilege is waived when the "privilege holder ‘has injected his physical or mental condition into the case as the basis of a claim or an affirmative defense.’ " In re Alcon v. Spicer , 113 P.3d 735, 739 (Colo. 2005) (quoting Clark v. Dist. Court , 668 P.2d 3, 10 (Colo. 1983) ). However, Brown argues that "as the basis of a claim or an affirmative defense" means that he is only putting his physical and mental condition at issue with respect to the jurisdictional issue in the reverse-transfer hearing; he isn't simultaneously putting his physical and mental condition at issue as to the underlying alleged crimes. Brown emphasizes the language in Alcon that states that waivers "have always been limited by the circumstances of the case." Id.

¶21 But Alcon doesn't compel the result that Brown seeks. In Alcon , we noted that privilege holders only impliedly waive privilege as it relates to the specific condition that was placed at issue. Id. Alcon waived privilege "with respect to the injuries claimed in her lawsuit," but not her entire medical record. Id. at 740. In other words, the scope of the...