People v. Lowe

• Decision Date: 30 July 2020
• Docket Number: Court of Appeals No. 16CA1894
• Citation: 486 P.3d 397
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian Douglas LOWE, Defendant-Appellant.
• Court: Colorado Court of Appeals

486 P.3d 397

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

v.Brian Douglas LOWE, Defendant-Appellant.

Court of Appeals No. 16CA1894

Colorado Court of Appeals, Division VII.

Announced July 30, 2020

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶ 1 Brian Douglas Lowe appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted murder in the second degree, two counts of first degree assault of a peace officer, two counts of resisting arrest, two counts of menacing, and prohibited use of a stun gun.

¶ 2 Lowe claims that the trial court erred by (1) refusing to disclose police personnel and internal investigation files; (2) allowing the prosecution's fingerprint comparison witness to be qualified as an expert; (3) relying upon Lowe's prior escape conviction in adjudicating him a habitual criminal; (4) failing to merge Lowe's two resisting arrest convictions; and (5) imposing consecutive sentences for his first degree assault convictions. We affirm in part, reverse in part, and remand with instructions.

I. Background

¶ 3 In May 2015, the El Paso County Sheriff's Office was asked to locate and apprehend Lowe after he escaped from parole supervision and a warrant for his arrest was issued.

¶ 4 Lieutenant Robert Shane Mitchell and Sergeant Keith Duda responded to a Hobby Lobby in Colorado Springs after the officers were informed that Lowe was there.¹ When the officers approached Lowe and informed him that he was under arrest, he was using the floral department's telephone. When Duda moved to handcuff Lowe, Lowe resisted. Mitchell attempted to use a taser on Lowe, but during the struggle, Lowe obtained the taser. Both officers testified that, during the scuffle, they saw Lowe holding a knife.² The altercation ended when Mitchell shot Lowe three times; Mitchell later testified that he feared Lowe was going to stab Duda, who had fallen to the ground during the struggle.

¶ 5 After a June 2016 jury trial, Lowe was found guilty as charged except the jury acquitted Lowe of two counts of second degree assault of a peace officer.³ Following the trial, a hearing was held where Lowe was adjudicated a habitual criminal. At the sentencing hearing, the court sentenced Lowe to two consecutive sixty-four-year prison terms in the Department of Corrections’ custody for the first degree assault convictions. Lowe was sentenced concurrently for his remaining convictions. Lowe appeals.

II. Disclosure of Mitchell's and Duda's Personnel Files

¶ 6 Lowe first argues that the trial court erred by refusing to disclose Mitchell's and Duda's personnel and internal investigation files. After conducting our own review of the files, we conclude that certain records from Mitchell's files should have been disclosed to Lowe.

A. Additional Background

¶ 7 Before trial, Lowe's counsel served a subpoena duces tecum on the El Paso County Sheriff's Office to produce "personnel and internal affairs files" for Duda and Mitchell, including any allegations of misconduct, mishandling evidence, dishonesty, and excessive use of force. The Sheriff's Office provided the court with Mitchell's and Duda's professional and personnel files for in camera review. The Sheriff's Office also provided the prosecution certain records regarding the officers’ use of force to release to the defense through discovery. Because part of that record involved the use of force on a juvenile, the Sheriff's Office asked the court to determine what portion of the record, if any, should be released with a protection order.

¶ 8 After conducting an in camera review, the court declined to release the files. The court ruled that none of the files were relevant to Lowe's case, finding that "[a]ny relevancy of the reviewed records from [the Sheriff's Office] is remote and speculative at best." The court also found that the officers’ privacy expectation outweighed Lowe's interest in disclosure; therefore, the court denied the release of any of Mitchell's or Duda's records.

B. Applicable Law and Standard of Review

¶ 9 There is no general constitutional right to discovery in a criminal case. People v. Dist. Court , 790 P.2d 332, 338 (Colo. 1990). However, the prosecution must provide to the defense any evidence that is favorable to the accused and material to the guilt or punishment of the accused. Brady v. Maryland , 373 U.S. 83, 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶ 10 Under Crim. P. 16, a criminal defendant is entitled to discovery of material and information in the possession or control of law enforcement. Crim. P. 16(1)(a)(3) ; see also People v. Gallegos , 644 P.2d 920, 924 (Colo. 1982) (recognizing that Crim. P. 16 embodies a broad standard of disclosure, where information that would be inadmissible at trial may still be relevant, as long as the content of the information is relevant to the defense's conduct). Specifically, the prosecution must disclose exculpatory evidence to the defense, meaning evidence that is material: "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." People v. White , 64 P.3d 864, 874 (Colo. App. 2002) (quoting People v. Wilson , 841 P.2d 337, 339 (Colo. App. 1992) ); see also People v. James , 40 P.3d 36, 49 (Colo. App. 2001) ("Exculpatory evidence includes evidence that bears on the credibility of a witness the prosecution intends to call at trial.").

¶ 11 At the same time, our supreme court has recognized that police officers have a right to privacy in their personnel files. See People v. Spykstra , 234 P.3d 662, 670 (Colo. 2010). To obtain disclosure of such files, a defendant must "make a greater showing of need." Id. Thus, a police officer's expectation of privacy may be overridden by "the state's compelling interest in the determination of the truth and safeguarding of the defendant's right to exculpatory evidence." People v. Walker , 666 P.2d 113, 122 (Colo. 1983) ; see also Martinelli v. Dist. Court , 199 Colo. 163, 174, 612 P.2d 1083, 1091 (1980) (holding that when a party seeks disclosure of confidential personal information, the trial court must conduct a balancing inquiry, asking whether disclosure is required to serve a "compelling state interest" despite a party's legitimate privacy expectation). When conducting an in camera review, a trial court may not draw a distinction between sustained and unsustained complaints. Walker , 666 P.2d at 122. And a defendant who is charged with assaulting a police officer is entitled to disclosure of complaints charging excessive use of force filed against that officer. Id. at 121-22.

¶ 12 When a defendant challenges a trial court's ruling denying access to records, we conduct an independent review of the records to determine whether any should have been disclosed. People v. West , 2019 COA 131, ¶ 31, 461 P.3d 591. But, we review a trial court's resolution of discovery issues for an abuse of discretion. People in Interest of A.D.T. , 232 P.3d 313, 316 (Colo. App. 2010).

¶ 13 If the trial court abused its discretion by failing to disclose certain documents, the proper remedy is to remand the case to the trial court with instructions to provide the documents to the parties. Zoll v. People , 2018 CO 70, ¶ 12, 425 P.3d 1120. On remand, the trial court must allow the defendant an opportunity to "demonstrate a reasonable probability that, had the documents been disclosed before trial, the result of the proceeding would have been different." Id.

C. Analysis

¶ 14 Lowe contends that the trial court erred by refusing to disclose any of Duda's and Mitchell's files. Because Duda's and Mitchell's testimony was the prosecution's only evidence that Lowe threatened the officers with a knife, and the officers’ credibility was central to Lowe's defense, he contends that he was prejudiced by the lack of disclosure. We agree in part.

¶ 15 After reviewing Duda's sealed personnel and internal investigation files, we agree with the trial court that Lowe's interest in obtaining exculpatory information does not outweigh Duda's privacy interest because Duda's files contain no relevant or material information. See White , 64 P.3d at 874. However, after reviewing Mitchell's sealed files, particularly reviewing for complaints against Mitchell charging excessive use of force and challenging Mitchell's credibility, see James , 40 P.3d at 49, we conclude that the following records relate to Mitchell's credibility and should have been disclosed:

(1) documentation from a professional misconduct investigation initiated in August 2000 based, in part, on an allegation that Mitchell falsified reports;

(2) documentation from a professional misconduct investigation based on an October 7, 2000, incident alleging that Mitchell failed to report the use of force and then embellished the facts of the incident, and the complaint was deemed sustained;

(3) documentation from an internal investigation based on an October 14, 2000, incident and citizen complaint, where it was determined that Mitchell made false statements and he failed to fully investigate an incident;

(4) documentation from an internal investigation initiated in 2001 based on a citizen complaint, where Mitchell's supervisors stated during a performance review that Mitchell incorrectly documented incident reports and embellished facts;

(5) documentation from an internal investigation initiated in 2004 for departure from the truth, and the allegation was deemed unfounded, see Walker , 666 P.2d at 122 ; and

(6) documentation from an internal investigation initiated in 2010 based on a citizen complaint, where it was alleged that Mitchell falsified information in an incident report and the allegation

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