People v. Bueno

• Decision Date: 21 November 2013
• Docket Number: Court of Appeals No. 10CA2114
• Citation: 411 P.3d 62
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant, v. David BUENO, Defendant–Appellee.
• Court: Colorado Court of Appeals

411 P.3d 62

The PEOPLE of the State of Colorado, Plaintiff–Appellant,

v.David BUENO, Defendant–Appellee.

Court of Appeals No. 10CA2114

Colorado Court of Appeals, Div. V.

Announced November 21, 2013

Carol Chambers, District Attorney, L. Andrew Cooper, Chief Deputy District Attorney, George H. Brauchler, Deputy District Attorney, Centennial, Colorado, for Plaintiff–Appellant.

Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, Defendant–Appellee.

Opinion by JUDGE GRAHAM

¶ 1 The People of the State of Colorado appeal the trial court's order granting defendant, David Bueno, a new trial based upon newly discovered evidence. As a matter of first impression, we conclude the term "entry of judgment" in Crim. P. 33(c) means more than a "verdict or finding of guilt" and must include sentencing of the defendant. Accordingly, here, as a matter of law, defendant's Crim. P. 33(c) motion was timely because he had not been sentenced at the time he filed his motion. Because we further conclude that the trial court did not abuse its discretion in determining the prosecution in this case violated Crim. P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that defendant was entitled to a new trial pursuant to Crim. P. 33(c) because of this violation, we affirm.

I. Background

¶ 2 Defendant was charged with and convicted of first degree murder after a jury trial for the death of fellow inmate Jeffrey Heird at the Limon Correctional Facility (LCF). At trial, the prosecution relied heavily on an anonymous note found in a shower drain at LCF stating, "Killers are Bueno and [codefendant]." Part of defendant's theory at trial was that the prosecution failed to investigate alternative suspects, specifically white inmates at LCF.

¶ 3 Approximately fifteen months after defendant's trial but before sentencing, the prosecution "in an abundance of caution" provided discovery of a letter (ABN letter) and report to the defense in this case. The ABN letter was found by Nurse Linda Deatrich in the medical "kite" box at LCF approximately thirty-five minutes after Heird's body was discovered in his cell. The ABN letter states:

Let it be known to all, The Aryan

Nation along with the neo nazi skinheads

hereby decree that all men of the white

race who refuse to accept their proud

race will hereby be exterminated. We hereby

select two to begin the extermination process

M. Nowlin and A. "Cueball" Latner. To begin

with there are three to choose from

LU–1 Sorenson has out lived his worth

LU–2 "Santa Clause" Parrish is worthless

LU 6 Hollenbeck need to be taught a lesson

The list continues but for now these are to be done soon.

[Illegible signature]

[Backward swastika] ABN

Nurse Deatrich filed an employee incident report about the discovery of the ABN letter (Deatrich report).

¶ 4 Two days after the ABN letter was discovered, inmate David Hollenbeck, a listed target, suffered cardiac distress and was taken to Denver General Hospital, where he died. Hollenbeck was observed to have suffered blunt force trauma to his chest but an autopsy revealed his death was caused by a pulmonary embolism

.

¶ 5 Lieutenant Timothy Smelser, a gang intelligence officer at LCF, wrote a report about Hollenbeck which specifically referenced Heird's death and the discovery of the ABN letter (Smelser report). In Lieutenant Smelser's opinion, Heird's death and Hollenbeck's death were likely connected. The Smelser report was also not provided to the defense until more than fifteen months after defendant was convicted at trial.

¶ 6 It is undisputed that copies of the ABN letter and the Deatrich report were contained in the working file of Deputy District Attorney Robert Watson, the original prosecutor working on defendant's case. Thus, the prosecution had this information sometime in 2004 but did not provide it to defendant until July 2009. However, defense counsel were allowed to review records at LCF in May 2007, where the originals of the ABN letter and the Deatrich report are contained. Yet defense counsel did not discover either the ABN letter or the Deatrich report in 2007. Defendant's counsel learned of the ABN letter and the Deatrich report in June 2008, when counsel for a codefendant discovered the letter and report. But at the time of the material's discovery by the codefendant, defendant had already been convicted.

¶ 7 Defendant filed a motion for a new trial based upon Crim. P. 33(c) and the prosecution's "extraordinary violation of Brady v. Maryland ." In his brief in support of the motion, defendant requested a new trial because the ABN letter, the Deatrich report, and the Smelser report were not disclosed to the defense in violation of Crim. P. 16(I)(a)(2) and Brady . The court held hearings on defendant's motion and in a written order granted defendant a new trial pursuant to Crim. P. 33. The court concluded:

In People v. Alejandro Perez, co-defendant of [defendant], upon order from the trial court, the Prosecution was ordered to review the working file of Robert Watson.... Deputy District Attorney Jason Siers reported finding within the working file of former Deputy District Attorney Watson two pages (handwritten report of Linda [Deatrich] and handwritten letter) ... which were then provided to defense counsel in "an abundance of caution." (Siers Memo of 7/6/09.) The People began an immediate investigation as to whether these documents had previously been provided in discovery. These documents were disclosed to the defense July 6, 2009, approximately 15 months after [defendant's] trial.

....

It is important to note these two reports and the letter were in the possession of the District Attorney near the very beginning of the investigation into the death of Jeffrey Heird. These documents were never included in discovery provided by the District Attorney to the [d]efendant until some fifteen (15) months after [defendant's] trial. The originals of these documents were later discovered by District Attorney's Investigators in the Department of Correction's file at LCF.

Furthermore, on April 2, 2004, Tim Smelser, LCF gang intelligence officer, authored a report ... highlighting to the investigators the possible connections of the Jeffrey Heird death and the death of Hollenbeck. This report was not given in discovery until after the [Deatrich] report and the "ABN" letter were disclosed. Smelser testified he was responsible at the beginning of the investigation into Heird's murder to compile all relevant reports and information for the investigators. He further testified he gave his reports to all those assigned to investigate the Heird murder.

....

The defense theory from the beginning was that the murder of Heird was the work of other white inmates, possibly white supremacists. The "ABN" letter of March 28, 2004, coupled with the death of inmate Hollenbeck shortly after the murder of Heird, and Investigator Smelser's voicing his suspicions and concerns provides added credibility to the defense theory. This information was not in the possession of the [d]efendant prior to or during the trial on the merits.

The defense was never able to fully develop this theory of defense for [defendant] because the Prosecutors failed to timely disclose these relevant and possibly exculpatory documents and reports. These materials were in the District Attorney's possession at the very outset of the investigation of the Heird murder. The District Attorney does not get to decide which discovery is relevant for defense purposes....

The People argue this discovery, although provided when located in July 2009 by Deputy District Attorney Siers, was available to the defense in the files held at LCF. The originals of these reports were located by investigators for the District Attorney's office in monthly incident reports which were made available and had actually been reviewed by defense counsel and/or investigators in May 2007. At the time of the May 2007 review, the defense focus was on incidents in LCF involving the use of "shanks." The defense was given the opportunity to review and copy, if requested, documents at that time, but did not locate the documents in question. Despite this "opportunity" to locate, copy, and investigate the reports and the letter in May 2007, the Court is of the opinion the Prosecution failed to comply with its obligations under Rule 16, Part 1. This is simply because these materials were known to the Prosecution and in their possession. Apparently, someone from the District Attorney's office made the conscious decision this information was not to be included in discovery because it was not relevant. This information was found segregated from the balance of the working file held by former Deputy District Attorney Watson. The Trial Court cannot say with certainty the District Attorney acted in bad faith by withholding relevant and possibly exculpatory evidence. Deputy District Attorney Watson left the District Attorney's office before formal charges were filed or hearings conducted in this matter, and after which new Deputy District Attorneys were appointed. It is apparent to the Trial Court that a conscious decision was made at some point early in this case to keep the information from the [d]efendant by separating these documents from the balance of Watson's working file.

It is the opinion and finding of the Trial Court that the failure by the Prosecution to provide this discovery when it was in the District Attorney's possession and thought to have relevance to the Heird investigation at the outset is a violation requiring a severe sanction. This discovery, whether deemed admissible or not and if investigated, could have significantly impacted the outcome of the trial, a verdict which took almost four (4) days of deliberation and required the Court giving additional instructions to the jury after hearing they were at impasse. Evidence must be of character to probably bring about acquittal. People v. [Schei

...