People v. Palomo, No. 01SA68.

• Citation: 31 P.3d 879
• Decision Date: 10 September 2001
• Docket Number: No. 01SA68.
• Parties: The PEOPLE of the State of Colorado, Plaintiff, v. Cruz PALOMO, Defendant.
• Court: Supreme Court of Colorado

31 P.3d 879

The PEOPLE of the State of Colorado, Plaintiff, v. Cruz PALOMO, Defendant.

No. 01SA68.

Supreme Court of Colorado, En Banc.

September 10, 2001.

Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, CO, Mark Adams, District Attorney, Thirteenth Judicial District, Fort Morgan, CO, Attorneys for Plaintiff.

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy, Katherine Brien, Deputy State Public Defender, Denver, CO, Attorneys for Defendant.

Justice KOURLIS delivered the Opinion of the Court.

In this original proceeding pursuant to C.A.R. 21, we determine whether the district court properly exercised its discretion by granting the defendant's motion to recuse the Thirteenth Judicial District Attorney's Office (district attorney) and the Capital Crimes Unit of the Colorado Attorney General's Office (Capital Crimes Unit) from further participation in this case after finding an appearance of impropriety. We issued a rule directing the respondent, Cruz Palomo, to show cause why the district attorney and Capital Crimes Unit, should not be permitted to prosecute a criminal case against Palomo. We now make that rule absolute and conclude that the trial court had insufficient grounds for disqualification of the district attorney and the Capital Crimes Unit.

Specifically, we disagree that the files of Palomo contained medical records as described in the statute prohibiting the theft of medical records, and therefore infer no potentially criminal wrongdoing either of the personnel director or the district attorney's office as to those files. An employer's personnel records of employee drug tests and physical ability tests that are required as conditions of employment are not medical records for purposes of the theft statute. Further, the defendant has no standing to raise any privilege with respect to the personnel files of the victim, Flora Padilla. However, should the trial court sua sponte find impropriety by the personnel director or the district attorney's investigator in releasing those records, the court should consider appointment of a special prosecutor to pursue the theft charge and to determine the appropriateness of an offer of immunity to the personnel director and should also consider exclusion or limitation of the evidence at trial.

I.

This case arises out of the prosecution of Cruz Palomo (Palomo) for the murder of Flora Padilla (Padilla). Palomo and Padilla had worked together at the Excel Corporation meat packing plant in Fort Morgan, Colorado. Excel eventually fired Palomo. On the day of the murder, investigators from the district attorney's office and the Capital Crimes Unit spoke with Excel's assistant personnel manager to determine if he knew anything about, or had any records concerning, interactions between Palomo and Padilla.

During the conversation, the investigators asked for copies of Palomo's and Padilla's personnel files. The investigators told the personnel manager that if necessary, they could seek a subpoena or a search warrant for the files. The investigators testified at the hearing on the defense motion to disqualify the district attorney's office that they told the personnel manager that they did not want any medical or psychological files concerning Palomo or Padilla.

After conferring with Excel's corporate counsel, the personnel manager informed the investigators that Excel needed a written request for the records from the district attorney's office. The investigators provided a written request and the personnel manager released Palomo's and Padilla's personnel files.¹ The investigators then had the files copied for discovery purposes, and provided copies to defense counsel.

Contrary to the investigators' professed directions to delete any documents that might relate to medical or psychological issues, both files did contain the results of employment-required drug screening and physical ability tests. Padilla's personnel file also contained routine medical test results associated with work-related injuries and with a workers' compensation disability claim.

Once the district attorney filed first degree murder charges against Palomo, Palomo's defense counsel filed a motion to recuse the district attorney's office and the Capital Crimes Unit from further participation in the case. Palomo argued that by asking for and receiving the personnel files, the investigators, along with the Excel personnel manager, committed the offense of theft of medical records, in violation of section 18-4-412, 6 C.R.S. (2000).

Upon learning that he faced possible criminal charges, Excel's personnel manager, through counsel, indicated that if called to testify, he would invoke his right to remain silent. The district attorney offered immunity from prosecution for theft of medical records to the personnel manager, but retracted the offer the next day. The defense argued that the offer and withdrawal of immunity proved that the district attorney had an actual conflict in the case because the personnel director's testimony could implicate the district attorney's office in misconduct.

The district court found that the employment-required drug tests, the physical ability tests of both employees and the results of Padilla's personal medical tests constituted medical records under section 18-4-412. The district court further found that Palomo failed to show the commission of an actual impropriety by the district attorney's office and the Capital Crimes Unit. Nonetheless, the court found:

at least a prima facie showing by the defense that defendant's and others' rights very well may have been violated and as a result, there's not only just civil issues that are involved, but also issues of a criminal nature which, at this point, would affect and may effect witnesses that may be called to testify.

The court further held that there was arguably a claim that the investigators needed a search warrant to obtain Palomo's and Padilla's personnel records. Thus, the district court concluded that a colorable claim could be made that, by providing the files to the investigators without a warrant, the personnel manager committed the offense of theft of medical records.

The district court then characterized the proceedings as "tainted" and the prosecution as "compromised." It disqualified the district attorney's office and the Capital Crimes Unit and ordered appointment of a special prosecutor for the case.

II.

In general, Colorado requires that its district attorneys and attorney general prosecute criminal cases. Colo. Const. art. IV, § 1(1); id., art. VI, § 13; § 20-1-102(1)(a), 6 C.R.S. (2000). However, section 20-1-107, 6 C.R.S. (2000), provides that a judge may disqualify the district attorney from a case and appoint a special prosecutor if the district attorney "is interested or has been employed as counsel in any case which it is his duty to prosecute or defend." Although the statute does not define "interested," we have held that a court may properly disqualify a district attorney who has some involvement in the defendant's case that would "impair that office's ability to prosecute the case fairly." People ex rel. Sandstrom v. Dist. Court, 884 P.2d 707, 710 (Colo.1994). Specifically, we have focused on whether the members of the district attorney's office would stand to receive personal benefit or detriment from the outcome of a case in order to determine whether the office was "interested" in the case in such a way as to require disqualification. Id. at 711. Examples of such a level of "interest" would be a case in which attorneys in the office were material witnesses in a case, Pease v. Dist. Court, 708 P.2d 800, 802 (Colo.1985), or a case in which an attorney in the office had an attorney-client relationship with the defendant prior to the attorney's employment as a prosecutor. People v. Stevens, 642 P.2d 39, 40 (Colo.App. 1981).

An "appearance of impropriety" can also be the basis for disqualification. People v. Garcia, 698 P.2d 801, 806 (Colo 1985) (holding that a trial court may disqualify the district attorney where a member of his staff's testimony in a criminal case created an appearance of impropriety); People v. County Court, 854 P.2d 1341, 1344 (Colo.App. 1992) (holding that an appearance of impropriety existed where the deputy district attorney had an altercation with the defendant at the time of the defendant's arrest). An appearance of impropriety is "an interest in the litigation apart from [the district attorney's] professional responsibility of upholding the law." Sandstrom, 884 P.2d at 711 (quoting People v. Dist. Court, 189 Colo. 159, 162, 538 P.2d 887, 889 (Colo.1975)). In determining whether there is a legitimate appearance of impropriety, courts should not accept the most cynical view. McFarlan v. Dist. Court, 718 P.2d 247, 249 (Colo.1986).

The fundamental inquiry is "whether disqualification appears reasonably necessary to insure [sic] the integrity of the fact-finding process, the fairness or appearance of fairness of trial, the orderly or efficient administration of justice, or public trust or confidence in the criminal justice system." Garcia, 698 P.2d at 806 (internal quotation marks omitted). The court should strive to "shape a remedy which will assure fairness to the parties and the integrity of the judicial process." Id.

Trial courts have broad discretion in determining whether they should disqualify a district attorney from prosecuting a particular case. McFarlan, 718 P.2d at 249. A court commits an abuse of discretion if it makes a manifestly arbitrary, unreasonable or unfair decision. County Court, 854 P.2d at 1345. In reviewing the trial court's decision, the pertinent inquiry is whether the facts support the court's conclusion that the "public would perceive continued prosecution by the district attorney's office, under the particular...