People v. Jowell

• Decision Date: 24 January 2008
• Docket Number: No. 04CA1816.,04CA1816.
• Citation: 199 P.3d 38
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jody JOWELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

199 P.3d 38

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jody JOWELL, Defendant-Appellant.

No. 04CA1816.

Colorado Court of Appeals, Div. VI.

January 24, 2008.

Certiorari Denied August 20, 2008.

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Priscilla J. Gartner, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.

Defendant, Jody Jowell, was accused of sexually abusing his stepdaughter, T.C., between 1993 and 1998. He was tried before a jury and convicted of two counts of sexual assault on a child by a person in a position of trust, and one count of sexual assault on a child as part of a pattern of abuse. He was sentenced to sixteen years in prison.

Jowell now appeals the judgment of conviction. He contends that the trial court committed reversible error in failing to disclose social services records and in allowing the prosecution to elicit expert testimony.

We reject his contentions and affirm.

I. Social Services Records

Before trial, Jowell's defense counsel tried to obtain records held by social services agencies in Boulder, Mesa, and Saguache Counties. Counsel's efforts—along with the prosecutor's responses, the trial court's rulings, and the arguments on appeal—demonstrate significant confusion about discovery of social services records in Colorado.

We therefore begin with an overview of the governing law.

A. Governing Law

In general, discovery in criminal cases is governed by Crim. P. 16. This rule describes each party's obligations and imposes deadlines for the disclosure of certain items and information. Among other things, the rule requires the prosecutor to disclose "books, papers, documents, photographs or tangible objects held as evidence in connection with the case" within twenty days of the defendant's first appearance. Crim. P. 16(I)(a)(1)(IV), (b)(1). It also requires the prosecutor to disclose material exculpatory information in compliance with the due process principles identified in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Crim. P. 16(I)(a)(2); see In re Attorney C, 47 P.3d 1167, 1170-71 (Colo. 2002) (Rule 16 incorporates Brady's materiality standard).

But Rule 16 is not the only law that regulates discovery. For certain kinds of records and information, Rule 16's general guidance may be displaced by laws that create privileges or dictate special procedures. See, e.g., Dill v. People, 927 P.2d 1315, 1320-25 (Colo. 1996) (notes and records made during therapy sessions are not discoverable because they are protected by the statutory psychologist-client privilege).

Here we are concerned with records that are created and maintained by social services agencies. Some of these records—specifically, records and reports of child abuse or neglect—are protected by the rule of nondisclosure set forth in section 19-1-307(1)(a), C.R.S.2007: "Except as otherwise provided in this section and section 19-1-303, reports of child abuse or neglect and the name and address of any child, family, or informant or any other identifying information contained in such reports shall be confidential and shall not be public information." See Gillies v. Schmidt, 38 Colo.App. 233, 237, 556 P.2d 82, 86 (1976) (corresponding confidentiality provision of the former Child Protection Act, which regulated disclosure of "child abuse records and reports," applied to the "[e]ntire contents of a child abuse report and the records related thereto").

The legislature has provided specific exceptions to this rule of nondisclosure. Two of these exceptions are relevant to most criminal cases:

[O]nly the following persons or agencies shall be given access to child abuse or neglect records and reports:

(a) The law enforcement agency, district attorney, coroner, or county or district department of social services investigating a report of a known or suspected incident of child abuse or neglect ...;

...

(f) A court, upon its finding that access to such records may be necessary for determination of an issue before such court, but such access shall be limited to in camera inspection unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it....

§ 19-1-307(2)(a), (f), C.R.S.2007.

After considering both the plain language of the relevant provisions and the relationship between those provisions and Rule 16, the parties agree, and we conclude, that discovery of child abuse and neglect records is determined solely by the standards set forth in section 19-1-307, C.R.S.2007. See People v. Prophet, 42 P.3d 61, 62 (Colo.App.2001) (in substantive matters, statutes prevail over rules).

This conclusion yields certain consequences for the defendant, the prosecutor, and the court.

1. For the Defendant

The statute does not provide equal access to social services records. It contemplates that the prosecution may have full access while "investigating a report of a known or suspected incident of child abuse or neglect." § 19-1-307(2)(a). (We agree with the People that such investigation may continue after the filing of formal charges.) But it allows for defense access only if a court determines that disclosure "is necessary for the resolution of an issue," under subsection (2)(f). See State v. Gibson, 973 S.W.2d 231, 244 (Tenn.Crim.App.1997) (recognizing, under a similar statute, that the prosecution is allowed access to child abuse reports, while the defendant is not).

Therefore, the defendant cannot expect automatic disclosure of child abuse or neglect records that are "within the possession or control of the prosecuting attorney" under Crim. P. 16(I)(a)(1). Instead, the defendant must request an in camera review, identify the type of information sought, and explain why disclosure of that information "is necessary" under subsection (2)(f).

The trial court will not conduct an in camera review unless the defendant sets forth sufficient information to support a threshold finding that access to child abuse and neglect records "may be necessary for determination of an issue." § 19-1-307(2)(f); People v. Dist. Court, 743 P.2d 432, 436 (Colo.1987); People v. Frost, 5 P.3d 317, 323 (Colo.App.1999). To justify review, the defendant must show that child abuse and neglect records exist and may contain relevant information. Compare People v. Turley, 870 P.2d 498, 502 (Colo.App.1993) (in camera review was not required where defendant's offer failed to establish that social services records existed and failed to establish an evidentiary hypothesis as to how the requested information would be relevant), with Exline v. Gunter, 985 F.2d 487, 490 (10th Cir. 1993) (in camera review for Brady material was required where the defendant requested "anything in those [DSS] reports relating to credibility [of potential child witnesses]"); see also State v. Gagne, 136 N.H. 101, 612 A.2d 899, 901 (1992) ("[T]o trigger an in camera review of confidential or privileged records, the defendant must establish a reasonable probability that the records contain information that is material and relevant to his defense.").

To achieve the broadest possible disclosure, the defendant should explain the relevance and materiality of the information sought. See Pennsylvania v. Ritchie, 480 U.S. 39, 58 n. 15, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (specificity of the defendant's request may have a bearing on the trial court's assessment of materiality). If the court understands why information is sought, it can review the records with a more discerning eye and can better determine whether disclosure is necessary.

2. For the Prosecutor

The statute does not suspend the prosecutor's ethical obligation to disclose information that is materially favorable to the defendant. But neither does it exempt this information from the review procedures contemplated by subsection (2)(f). Therefore, if the prosecutor believes that a social services record contains material exculpatory information, he or she must ask the court to review the record in camera and to find that public disclosure "is necessary for the resolution of an issue," under subsection (2)(f). The prosecutor must act promptly to ensure that the resultant disclosure will be timely under the Colorado Rules of Professional Conduct 3.8(d). See Attorney C, 47 P.3d at 1171-72 (disclosure is untimely if it occurs after a critical stage of the proceeding).

The statute does not permit the prosecutor to offer records into evidence without first obtaining the court's approval. See § 19-3-307(4), C.R.S.2007 ("A written report from persons or officials required by this part 3 to report known or suspected child abuse or neglect shall be admissible as evidence in any proceeding relating to child abuse, subject to the limitations of section 19-1-307."). Therefore, if the prosecutor believes that a particular record contains admissible evidence, he or she must request an in camera review, identify relevant information, and explain why public disclosure of that information "is necessary." If the court determines that public disclosure is necessary, the information should be disclosed to the defense before trial.

3. For the Court

By supplanting the automatic disclosure provisions of Crim. P. 16(I)(a)(1), the statute places the trial court in the middle of procedural issues that would otherwise be handled by counsel alone. The burden is significant because in camera reviews may be time consuming and difficult.

As noted, the court may review social services records only if it finds that "access to such records may be necessary for determination of an issue." § 19-1-307(2)(f). The court should approach this threshold inquiry liberally and conduct an in camera review whenever it reasonably appears...