People v. Jimenez, No. 04CA1098.

Docket NºNo. 04CA1098.
Citation217 P.3d 841
Case DateOctober 16, 2008
CourtCourt of Appeals of Colorado
217 P.3d 841
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Anthony Lolin JIMENEZ, Defendant-Appellant.
No. 04CA1098.
Colorado Court of Appeals, Div. VI.
October 16, 2008.
Rehearing Denied December 31, 2008.

[217 P.3d 848]

John W. Suthers, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Michael J. Heher, Captain Cook, Hawaii, for Defendant-Appellant.

Opinion by Judge J. JONES.


Defendant, Anthony Lolin Jimenez, appeals the judgment of conviction entered on jury verdicts finding him guilty of second

217 P.3d 849

degree murder and accessory to a crime. Though defendant raises a host of issues on appeal, we perceive no reversible error, and therefore affirm.

I. Background

The following historical facts are supported by evidence presented at trial and are consistent with the jury's verdicts. Procedural facts are taken from the pleadings, court orders, and transcripts of proceedings.

On August 20, 2000, defendant, Michael Easton, Nick Olan, and three other individuals began a "camping trip." Over the next few days, they smoked marijuana and drank alcohol at the campsite. Easton testified that during the camping trip he and defendant stole from a Home Depot store twice and a Hobby Lobby store once, and burglarized a cabin, to get money to buy alcohol, marijuana, cigarettes, and "supplies." Olan was with them during one of the Home Depot thefts, the Hobby Lobby theft, and the cabin burglary, but defendant and Easton dropped him off near his house on August 23. By that day, defendant and Easton were the only members of the original group still camping at the campsite.

On August 24, defendant and Easton picked up a fifteen-year-old girl, J.B., whom they did not know, on a street in Colorado Springs. They took her to the campsite where they held her for two days. Easton testified that both he and defendant sexually assaulted J.B., and that defendant suggested they kill J.B. because she "knew too much." Defendant bound J.B. with duct tape, and he and Easton carried J.B. to a stream where they drowned her. Defendant and Easton then removed J.B.'s clothing and jewelry as well as the duct tape, put her body in a sleeping bag, and drove to a small ravine near Trail Creek Road in Teller County, where they left J.B.'s body.

Late on September 8, 2000, defendant went to the Pikes Peak Mental Health Center (PPMH), in Colorado Springs. He told a counselor that he was having "visions" of a teenage girl being sexually assaulted and murdered by two men, and that he wanted her to ask the police to come get him so he could show them where the girl's body was. The counselor called the Teller County Sheriff's Office.

After a sheriff's deputy arrived at PPMH, defendant told the deputy what he had told the counselor. Defendant offered to go with the officer to find the victim's body. He, the deputy, and a sheriff's office sergeant then searched the Trail Creek Road area. Defendant directed them to several sites where they found nothing, but eventually he directed them to the victim's body. The officers then handcuffed defendant, took him into custody, and transported him to the Teller County Sheriff's Office.

Another sheriff's office sergeant and a district attorney's office investigator questioned defendant at length on September 9 and, at defendant's request, took him to a campsite where he said he and Easton had camped. At about 6:30 p.m. that day, the sergeant and the investigator arrested defendant. After they booked him into jail, they took him to a hospital to give biological samples. After defendant gave the biological samples, he directed the sergeant and the investigator to where he and Easton had "picked up" the victim.

The next day, defendant again asked to speak with the sergeant and the investigator. Defendant then related additional details about his visions and the incident.

The People charged both defendant and Easton with first degree murder, kidnapping, sexual assault, and conspiracy. The prosecution indicated that the People intended to seek the death penalty against both men. Easton entered into a plea agreement with the People, in which he agreed to plead guilty to second degree murder and second degree kidnapping and to testify truthfully in defendant's trial in exchange for a stipulated sentence of seventy-three years in the custody of the Department of Corrections and dismissal of all other charges.

Defendant's first trial ended in a mistrial. Before defendant's second trial, the prosecution decided not to seek the death penalty.

Defendant's theory of defense at trial was that the victim had willingly gotten into the car with him, Easton, and Olan; he never

217 P.3d 850

participated in preventing the victim from going anywhere; he did not sexually assault her or know that Easton or Olan had done so; and although he was physically present during the events leading to the victim's death, he did not cause her death or intend to kill her.

The jury in the second trial found defendant guilty of the lesser included offense of second degree murder and the lesser nonincluded offense of accessory to a crime, but was unable to reach verdicts on the kidnapping, sexual assault, and conspiracy charges. The court sentenced defendant to forty-eight years in the custody of the Department of Corrections on the murder conviction and six years incarceration on the accessory conviction, to be served consecutively.

II. Alleged Violations of 42 U.S.C. § 290dd-2

Defendant contends that the prosecution obtained his patient records from PPMH in violation of 42 U.S.C. § 290dd-2 (2008) (the federal statute) and its related regulations, see 42 C.F.R. §§ 2.1-2.67, and improperly used them to investigate the case and as evidence in pretrial hearings and at trial. He further contends that because of the prosecution's allegedly illegal conduct in obtaining and using the records, his convictions must be reversed and all charges against him must be dismissed. We are not persuaded.

The federal statute provides that certain records of substance abuse treatment are to remain confidential, and may be disclosed only in certain specified circumstances. At issue are four categories of "records" allegedly covered by the federal statute: (1) defendant's statement to the counselor on the night of September 8 and 9, 2000 when he reported having "visions"; (2) the counselor's statements about defendant in her telephone call to the sheriff's office on the night of September 8 and 9; (3) the entirety of PPMH's file on defendant, which was provided to an investigator on September 12, 2000 pursuant to a release of medical records executed by defendant; and (4) nineteen pages from that file which the court determined were tantamount to a report of child abuse, therefore not covered by the federal statute, and therefore available for use by the prosecution. These categories of "records" are more specifically described as follows:

(1) Defendant's statements to the counselor. Defendant told the counselor he was having "visions" of a girl being raped and murdered by two men. He wanted to be evaluated to determine whether these "visions" were "from God" or "hallucinations." Defendant described the girl in his visions and described the murder in general terms. He said he thought her name began with "Jo" or "Je." When the counselor asked him whether he had recently used drugs or alcohol, he responded that he had not. He said he sometimes obtained medication from PPMH, that he was taking his medications regularly, and that he was seeing a psychiatrist more or less regularly. He repeatedly asked the counselor to call the police so he could lead them to the girl's body. The court found these statements were part of a report of child abuse and therefore not subject to the prohibitions on disclosure and use imposed by the federal statute.

(2) The counselor's statements to the police. As noted, at defendant's request, the counselor called the Teller County Sheriff's Office. She said that defendant was at PPMH saying he was having visions of a teenage girl being murdered about three days earlier, he could show the police where the victim's body was, and he wanted to meet the police so he could help them find the body, which he thought was in a creek bed somewhere in the Woodland Park area. The counselor also said defendant had been a "client" of PPMH "for quite a long time," and defendant had told her he had bipolar disorder, was taking medication for his disorder, was seeing a psychiatrist, and was keeping up with his treatment program. She indicated defendant appeared very anxious, but was "lucid." She also said she was calling at defendant's request. At the end of the telephone call, she said defendant was "pacing anxiously waiting for you guys to get here" and was "eager to see you." The court ruled that these statements also constituted a report of child abuse.

217 P.3d 851

(3) Defendant's PPMH file. The file included defendant's treatment records going back several years. Investigators obtained the file, which was in a sealed envelope, from PPMH on September 12, 2000 pursuant to a written release form signed by defendant. Three days later, the court issued an order sealing the file and ordering that it be turned over to the court. The prosecution immediately complied with the order.

(4) Nineteen pages from the PPMH file. These pages contained notes regarding defendant's conversations with PPMH personnel on the night of September 8 and 9, 2000. The court turned them over to the prosecution after determining they were a report of child abuse and therefore not privileged under the federal statute. However, the court redacted them before turning them over to the prosecution to delete any information not relevant to the report of child abuse.

Though defendant contends these "records" were used extensively by the prosecution throughout the case, the district court...

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42 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...itself.” (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246)), overruled on other grounds by Griego, 19 P.3d at 7-8; People v. Jimenez, 217 P.3d 841, 868 (Colo.App.2008) (“If an error is structural, it is not susceptible of harmless error or plain error review.” (citing People v. Dunlap, ......
  • People v. Houser, No. 09CA2147.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 18, 2013
    ...offense is reviewed for an abuse of discretion. People v. Rubio, 222 P.3d 355, 360 (Colo.App.2009) (citing People v. Jimenez, 217 P.3d 841, 870 (Colo.App.2008)). “To constitute an abuse of discretion, the opponent must show that the trial court's decision was manifestly arbitrary, unreasona......
  • People v. Cisneros, Court of Appeals No. 09CA2717
    • United States
    • Colorado Court of Appeals of Colorado
    • April 24, 2014
    ...decision to admit evidence of other acts for abuse of discretion. See Yusem v. People, 210 P.3d 458, 463 (Colo.2009) ; People v. Jimenez, 217 P.3d 841, 864 (Colo.App.2008). We will disturb its ruling on appeal only if the ruling was manifestly arbitrary, unreasonable, or unfair. Yusem, 210 ......
  • People v. Samuels, No. 06CA1560.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...doubt on the reliability of the judgment of conviction. People v. Miller, 113 P.3d 743, 750 (Colo. 228 P.3d 240 2005); People v. Jimenez, 217 P.3d 841, 869 "The Sixth Amendment's guarantee of effective assistance of counsel encompasses a defendant's right to conflict-free counsel." People v......
  • Request a trial to view additional results
42 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...itself.” (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246)), overruled on other grounds by Griego, 19 P.3d at 7-8; People v. Jimenez, 217 P.3d 841, 868 (Colo.App.2008) (“If an error is structural, it is not susceptible of harmless error or plain error review.” (citing People v. Dunlap, ......
  • People v. Houser, No. 09CA2147.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 18, 2013
    ...offense is reviewed for an abuse of discretion. People v. Rubio, 222 P.3d 355, 360 (Colo.App.2009) (citing People v. Jimenez, 217 P.3d 841, 870 (Colo.App.2008)). “To constitute an abuse of discretion, the opponent must show that the trial court's decision was manifestly arbitrary, unreasona......
  • People v. Cisneros, Court of Appeals No. 09CA2717
    • United States
    • Colorado Court of Appeals of Colorado
    • April 24, 2014
    ...decision to admit evidence of other acts for abuse of discretion. See Yusem v. People, 210 P.3d 458, 463 (Colo.2009) ; People v. Jimenez, 217 P.3d 841, 864 (Colo.App.2008). We will disturb its ruling on appeal only if the ruling was manifestly arbitrary, unreasonable, or unfair. Yusem, 210 ......
  • People v. Samuels, No. 06CA1560.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...doubt on the reliability of the judgment of conviction. People v. Miller, 113 P.3d 743, 750 (Colo. 228 P.3d 240 2005); People v. Jimenez, 217 P.3d 841, 869 "The Sixth Amendment's guarantee of effective assistance of counsel encompasses a defendant's right to conflict-free counsel." People v......
  • Request a trial to view additional results

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