People v. Kilgore

• Citation: 455 P.3d 746
• Decision Date: 13 January 2020
• Docket Number: Supreme Court Case No. 19SA191
• Parties: In re The PEOPLE of the State of Colorado, Plaintiff, v. Joshua Edward KILGORE, Defendant.
• Court: Supreme Court of Colorado

455 P.3d 746

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

v.Joshua Edward KILGORE, Defendant.

Supreme Court Case No. 19SA191

Supreme Court of Colorado.

January 13, 2020

Attorneys for Plaintiff: Philip J. Weiser, Attorney General, Emily B. Buckley, Assistant Attorney General, Denver, Colorado

Attorneys for Defendant: Megan A. Ring, Public Defender, Anne Kathryn Woods, Deputy Public Defender, Durango, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 District courts enjoy ample discretion in managing cases before trial, but that discretion is not unfettered. In criminal cases, a district court may not rely on its case-management discretion to order disclosures that exceed the discovery authorized by Rule 16 of the Colorado Rules of Criminal Procedure. Nor may a court require disclosures that infringe on an accused's constitutional rights.

¶2 The district court in this case sua sponte ordered the parties to exchange exhibits thirty days before trial. The defendant, Joshua Edward Kilgore, protested, but the district court overruled his objection. Kilgore then filed a C.A.R. 21 petition, and we issued a rule to show cause. Because the district court's order finds no support in Rule 16 and arguably infringes on Kilgore's constitutional rights, we make the rule absolute.

I. Procedural History

¶3 The prosecution has charged Kilgore with two counts of felony sexual assault. At arraignment, Kilgore pled not guilty to the charges, and the district court scheduled the matter for a jury trial.

¶4 In the minute order it issued following the arraignment, the court indicated, among other things, that "exhibits [were] to be exchanged 30 days before trial" ("disclosure requirement" or "disclosure order"). The disclosure requirement was not prompted by a party's request and appears to have been part of the court's standard case-management practice. A couple of months later, Kilgore filed an objection, arguing that the disclosure requirement violated his attorney's confidentiality obligations, the attorney-client privilege, the attorney work-product doctrine, and his due process rights (including his right to make the prosecution meet its burden of proof, his right to a fair trial, and his right to the effective assistance of counsel). Further, noted Kilgore, Rule 16 neither requires him to disclose, nor entitles the prosecution to receive, his exhibits before trial.

¶5 Although acknowledging the difficulty of ruling in a vacuum, the court ultimately overruled Kilgore's objection. The court reasoned that requiring Kilgore to disclose his exhibits prior to trial would "foster[ ] efficiency and allow[ ] for a fair trial" without running afoul of his rights. Any exhibits not disclosed before trial, warned the court, would "not be used at trial."

¶6 Kilgore sought reconsideration of this ruling, but the court declined to alter it. Thereafter, Kilgore submitted a sealed motion detailing the specific reasons he opposed disclosing a particular exhibit.¹ Despite having this additional information, though, the court stood by its earlier ruling. It reiterated that "[t]rading trial exhibits such as the one discussed" in the sealed motion would "promote[ ] efficiency at trial." The court reminded Kilgore that failure to comply with its disclosure order would result in the exclusion of all his exhibits.

¶7 Kilgore then sought our intervention pursuant to C.A.R. 21, and we issued a rule to show cause.

II. Jurisdiction

¶8 Whether to exercise our original jurisdiction under C.A.R. 21 is a question solely within our discretion. People v. Tafoya , 2019 CO 13, ¶ 13, 434 P.3d 1193, 1195. However, our jurisprudence reflects that relief under C.A.R. 21 is "an extraordinary remedy that is limited in both purpose and availability." People in Interest of T.T. , 2019 CO 54, ¶ 16, 442 P.3d 851, 855–56 (quoting Villas at Highland Park Homeowners Ass'n v. Villas at Highland Park, LLC , 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151 ). In the past, we have exercised our jurisdiction when an appellate remedy would be inadequate, Fognani v. Young , 115 P.3d 1268, 1271 (Colo. 2005), when a party may otherwise suffer irreparable harm, People v. Turner , 109 P.3d 639, 641 (Colo. 2005), and when a petition raises "issues of significant public importance that we have not yet considered," Wesp v. Everson , 33 P.3d 191, 194 (Colo. 2001).

¶9 In invoking our original jurisdiction, Kilgore contends that a Rule 21 proceeding is the only adequate appellate remedy, that he will otherwise suffer irreparable harm, and that his petition raises an issue of first impression that is of significant public importance. We agree.

¶10 First, there is no other adequate remedy because we deal here with a pretrial ruling that may significantly impact Kilgore's ability to litigate the case on the merits and is not curable on direct appeal. More specifically, the disclosure order compels Kilgore to share with the prosecution some exculpatory evidence and his trial strategy. As such, any resulting detriment to Kilgore cannot be reversed on direct appeal. In Schultz v. GEICO Casualty Co. , we explained that when a discovery ruling "may significantly affect a party's ability to litigate the merits of a case and may cause damage ... that cannot be cured" on direct appeal, "it is appropriate to challenge" it "by way of an original proceeding." 2018 CO 87, ¶ 12, 429 P.3d 844, 846–47 (quoting Belle Bonfils Mem'l Blood Ctr. v. Dist. Court , 763 P.2d 1003, 1013 (Colo. 1988) ).

¶11 Second, though we ordinarily decline to exercise our original jurisdiction to review discovery orders, we have recognized that such an order can cause irreparable harm. See Ortega v. Colo. Permanente Med. Grp., P.C. , 265 P.3d 444, 447 (Colo. 2011). An immediate review is appropriate where, as here, "the damage that could result from disclosure would occur regardless of the ultimate outcome of an appeal from a final judgment." Id. As mentioned, the disclosure order forces Kilgore to reveal to the prosecution some exculpatory evidence and his trial strategy. And once that happens, any prejudice to Kilgore cannot be undone. As the old adage goes, "you can't unring a bell."

¶12 Finally, Kilgore correctly points out that we have never addressed whether a district court is vested with authority to order the disclosure of an accused's exhibits before trial. Moreover, given the constitutional rights potentially at play, the number of jury trials held every month throughout our state, and the prevalence of standard case-management orders, we view this as an issue of significant public importance that is likely to recur. Hence, we feel compelled to provide guidance.

III. Standard of Review

¶13 Appellate courts typically review a trial court's discovery order in a criminal case for abuse of discretion. People in Interest of E.G. , 2016 CO 19, ¶ 6, 368 P.3d 946, 948. But the specific discovery-related question we confront in this original proceeding is a legal one: Did the district court have authority to order Kilgore to disclose his exhibits before trial? Therefore, our review is de novo. People v. Chavez-Torres , 2019 CO 59, ¶ 11, 442 P.3d 843, 847.

IV. Analysis

¶14 Kilgore argues that the district court had no authority to compel him to disclose his exhibits before trial. He also asserts that the disclosure requirement infringes on his constitutional right to due process because it deprives him of his right to have the prosecution meet its burden of proof.²

¶15 "The right of discovery in criminal cases is not recognized at common law." E.G. , ¶ 11, 368 P.3d at 949 (quoting Walker v. People , 126 Colo. 135, 248 P.2d 287, 302 (1952) ). But in the twentieth century, there were many changes to the common law related to pretrial disclosure in criminal cases. Id. Perhaps none was greater than the Supreme Court's decision in the landmark case of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which gave birth to a defendant's constitutional right to the discovery of exculpatory information in the prosecution's possession. E.G. , ¶ 11, 368 P.3d at 949. Following Brady 's lead, legislatures and state courts enacted statutes and rules expanding "criminal discovery rights." Id. Despite this development, or perhaps because of it, "Colorado remains one of the few states that has never deviated from the traditional doctrine holding that courts lack power to grant discovery outside of those statutes or rules." Id. at ¶ 12, 368 P.3d at 949. Thus, under Colorado law, district courts have "no freestanding authority to grant criminal discovery beyond what is authorized by the Constitution, the rules, or by statute." Id. at ¶ 13, 368 P.3d at 950.

¶16 This case does not implicate discovery authorized by the Colorado Constitution or any of our statutes. Our focus is solely on the Colorado Rules of Criminal Procedure in general and Rule 16 specifically. After all, Rule 16, "Discovery and Procedure Before Trial," controls discovery in criminal cases.³ Our task, then, is to scrutinize Rule 16 to determine whether the district court was authorized to order Kilgore to disclose his exhibits before trial.

¶17 Part (I) of Rule 16 sets forth disclosures by the prosecution to the defendant; Part (II) of Rule 16 addresses disclosures by the defendant to the prosecution. In this case, we are concerned only with Part (II), which is divided into four sections. We explore each section in turn.

¶18 Subject to constitutional limitations, section (a) permits the prosecution to request and the court to require that the defendant provide nontestimonial identification evidence.

¶19 Section (b) covers medical and scientific reports. Subject to constitutional limitations, it grants the court authority to order the defendant to provide the prosecution discovery related to reports or statements of expert witnesses made in connection with the particular case and, where justified by the interests of justice, to disclose additional information...