People v. Herrera

• Decision Date: 02 February 2012
• Docket Number: No. 09CA0544.,09CA0544.
• Citation: 272 P.3d 1158,2012 COA 13
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Theodore Ramone HERRERA, Defendant–Appellant.
• Court: Colorado Court of Appeals

2012 COA 13

272 P.3d 1158

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

v.Theodore Ramone HERRERA, Defendant–Appellant.

No. 09CA0544.

Colorado Court of Appeals, Div. I.

Feb. 2, 2012.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge TAUBMAN.

¶ 1 Defendant, Theodore Ramone Herrera, appeals the trial court's judgment of conviction entered upon jury verdicts finding him guilty of two counts of sexual assault on a child and two counts of sexual assault-pattern of abuse. He also appeals the sentences imposed upon his convictions. We remand for further proceedings.

I. Background

¶ 2 In 2007, Herrera was accused of sexually abusing his male cousin, D.R., on several occasions when D.R. was about twelve years old and his younger female cousin, V.R., on five occasions when she was between the ages of eight and fourteen. Because Herrera was at least four years older than both victims during the multiple alleged incidents, he was charged with two counts of sexual assault on a child and two counts alleging that the assaults were part of a pattern of abuse.

¶ 3 Prior to Herrera's trial, he filed a motion under the rape shield statute, section 18–3–407, C.R.S.2011, requesting leave to admit evidence of V.R.'s prior allegations of sexual assault and a motion for discovery of any such evidence. After a pretrial hearing on the matter, the trial court ordered the People to disclose any information regarding known, false allegations of or investigations concerning sexual assault of V.R.

¶ 4 After the hearing, V.R.'s mother informed the prosecutor that V.R. had made prior allegations of sexual assault which were likely reported in her social services records. The prosecutor, believing “it was incumbent upon [him]” to try to obtain V.R.'s records after the mother's disclosure, retrieved records from three social services agencies. After reviewing them, he tendered them to the trial court with letters advising that, because such records may have contained information material to Herrera's defense, the trial court should conduct an in camera review of the records to determine whether they should be disclosed to Herrera.

¶ 5 At a separate hearing on this matter, the prosecutor again requested that the trial court review V.R.'s records in camera. However, the trial court stated that the request, and the accompanying burden to show the necessity of such a review, was Herrera's and ordered Herrera to file a separate motion for discovery of V.R.'s social services records. He timely filed such a motion, which the trial court denied because it failed “to present the sufficient evidentiary hypothesis to trigger the requested review.”

¶ 6 The People, through a second prosecutor, then filed a request for rehearing on the trial court's decision not to conduct an in camera review of the records. Herrera joined in the People's request. The trial court again denied the request. Its refusal to review V.R.'s records in camera is the primary focus of this appeal.

¶ 7 In November 2008, a jury trial was held at which both D.R. and V.R. testified. To show the jury how they appeared at the approximate time of the alleged sexual assaults, the People introduced two photographs of them as children at their first communion. The admissibility of these photographs is also at issue on appeal and presents a matter of first impression.

¶ 8 At the conclusion of trial, the jury convicted Herrera of all counts. The trial court sentenced him to two consecutive sentences of twelve years to life in prison, one sentence for each count of sexual assault of a child. Herrera also appeals the trial court's imposition of consecutive sentences.

II. In Camera Review of Social Services Records

¶ 9 Herrera contends that the trial court abused its discretion in denying the requests made by both him and the People to conduct an in camera review of V. R.'s social services records to determine whether they contained information material to his case that should have been disclosed prior to trial. Because the People made a requisite threshold showing that in camera review of the records was necessary and Herrera joined in this request, we conclude that the trial court abused its discretion, and we remand the case for in camera review of the records.

A. Standard of Review

¶ 10 We review for abuse of discretion a trial court's resolution of discovery issues, including its decision whether to review social services records in camera. People in Interest of A.D.T., 232 P.3d 313, 316 (Colo.App.2010).

¶ 11 A trial court abuses its discretion only when it acts in a manner that is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. People v. Hagos, 250 P.3d 596, 608 (Colo.App.2009).

B. Analysis

¶ 12 Section 19–1–307, C.R.S.2011, mandates that minors' abuse and neglect social services records remain confidential, subject to several exceptions. People v. Jowell, 199 P.3d 38, 42 (Colo.App.2008). Relevant here are three such exceptions which illustrate that “[t] he statute does not provide equal access to social services records.” Id.

¶ 13 Section 19–1–307(2)(a), C.R.S.2011, grants certain government agents, including prosecutors, open access to these records. In contrast, members of the public, including defendants in criminal cases, generally have no right of access to such records. Rather, a defendant only may access information contained in the records that a court has decided “is necessary for the resolution of an issue then pending before [the court].” § 19–1–307(2)(f) C.R.S.2011. Finally, however, courts themselves are limited to accessing social services records “upon ... finding that access to such records may be necessary for determination of an issue before [it],” and even then, only by means of an in camera review. Id.

¶ 14 Accordingly, disclosure to a criminal defendant of information in confidential social services records requires a two-part inquiry by the trial court. First, it must make a threshold determination whether to conduct an in camera review. Jowell, 199 P.3d at 43. Because a court may violate a defendant's due process rights by failing to conduct an in camera review of potentially material information, it “should approach this threshold inquiry liberally and conduct [such a] review whenever it reasonably appears that the records may contain discoverable information.” Id.; see A.D.T., 232 P.3d at 317; see also Exline v. Gunter, 985 F.2d 487, 490 (10th Cir.1993). If a court decides to undertake an in camera review, it must then determine what discoverable information in the records, if any, must be disclosed to the defendant. A.D.T., 232 P.3d at 316.

¶ 15 Either a prosecutor or a defendant may request court-ordered disclosure of social services records. The procedures by which each may request disclosure differ. See Jowell, 199 P.3d at 42–43.

¶ 16 A prosecutor is legally and ethically obligated to disclose to a criminal defendant evidence or information of which he or she learns that is favorable to the defendant and material to either guilt or punishment, including exculpatory and impeaching evidence. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see Crim. P. 16(I)(a)(2); Colo. RPC 3.8(d); see also Smith v. Cain, ––– U.S. ––––, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012) (reaffirming Brady). However, section 19–1–307 simultaneously constrains a prosecutor from disclosing to the defendant such information if it is contained in confidential dependency and neglect records. To adequately protect the rights of the defendant without violating the state's interest in the confidentiality of these sensitive records, a trial court should review any records that contain evidence a prosecutor reasonably believes to be exculpatory or impeaching. A.D.T., 232 P.3d at 316; Jowell, 199 P.3d at 43. Additionally, a court should also review records believed to contain inculpatory information that would materially assist a defendant in preparing a defense. Jowell, 199 P.3d at 43 (determining that such information is necessary for the resolution of court matters under section 19–1–307(2)(f)).

¶ 17 In contrast, a criminal defendant who lacks access by right to these confidential records reasonably bears a more sizeable burden in requesting the court to review and ultimately disclose information in the records. A defendant must identify relevant dependency and neglect records and request the trial court to review them in camera based upon his or her belief that information contained therein is necessary for determination of any issue pending before the court. § 19–1–307(2)(f). The request must be more than a mere fishing expedition. See A.D.T., 232 P.3d at 316. To establish necessity, the defendant must identify the type of information sought, and make an offer of proof establishing “an evidentiary hypothesis as to how the requested information would be relevant to the ... case.” People v. Turley, 870 P.2d 498, 502 (Colo.App.1993).

¶ 18 Herrera contends that the trial court erred in refusing to review V.R.'s social service records after the People initially requested an in camera review based upon their belief that the records contained exculpatory, impeaching, and inculpatory information. He contends that the trial court misconstrued the statutory scheme in shifting the burden to him to establish the necessity for review, and in ultimately refusing to review the records in camera based on its finding that he had failed to establish a sufficient evidentiary hypothesis.

¶ 19 No published Colorado appellate decision has addressed whether a defendant, by joining a prosecutor's request for in camera...