People v. Trujillo

• Court: Colorado Supreme Court
• Writing for the Court: Eid
• Citation: People v. Trujillo, 144 P.3d 539 (Colo. 2006)
• Decision Date: 02 October 2006
• Docket Number: No. 05SA318.,05SA318.
• Parties: The PEOPLE of the State of Colorado, Plaintiff v. Timothy TRUJILLO, Defendant.

Page 539

144 P.3d 539

The PEOPLE of the State of Colorado, Plaintiff v. Timothy TRUJILLO, Defendant.

No. 05SA318.

Supreme Court of Colorado, En Banc.

October 2, 2006.

David S. Kaplan, Colorado State Public Defender Kevin Pauly, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner Cassandra Gomez.

Mitchell R. Morrissey, District Attorney, Second Judicial District, Evan W. Jones, Deputy District Attorney, Denver, Colorado, Attorneys for Plaintiff the People of the State of Colorado.

David F. Vela, Arvada, Colorado, Attorney for Respondent-Defendant Timothy Trujillo.

Justice EID delivered the Opinion of the Court.

In this original proceeding under C.A.R. 21, we review the trial court's order requiring Petitioner Cassandra Gomez's criminal defense counsel to produce portions of his case file for in camera review. The trial court based its ruling on its belief that Gomez impliedly waived the attorney-client privilege when she entered into a plea agreement. We issued a rule to show cause. Because we find that no implied waiver took place, we now make the rule absolute.

I. FACTS AND PROCEDURAL HISTORY

On December 8, 2003, an employee of an armored vehicle company was assaulted and robbed after picking up money and receipts from a restaurant in Denver, Colorado. Following an investigation, Petitioner Cassandra Gomez was charged with aggravated robbery and theft. After her arrest, Gomez provided oral and written statements to the Denver Police Department and the Federal Bureau of Investigation on at least three occasions. None of those statements mentioned the defendant here, Timothy Trujillo. Gomez and the district attorney subsequently engaged in plea negotiations regarding the charges, and the district attorney expressed interest in working with Gomez to locate other parties involved in the crime.

Based on statements from Gomez, police charged Daniel Dominguez with crimes relating to the robbery. Dominguez also engaged in plea discussions with the district attorney, which resulted in Dominguez providing an audiotaped and videotaped statement in May 2004. Dominguez identified Trujillo as one of the individuals who participated in the robbery. Dominguez has since retracted portions of his statement, including the identification of Trujillo, and his plea agreement was revoked.

Gomez also eventually entered into a plea agreement, under which she agreed to provide complete and truthful information to the district attorney regarding the robbery, and to testify against others involved in the crime, in exchange for pleading guilty to a lesser charge and receiving a sentence recommendation of eight years. Pursuant to that agreement, on July 1, 2004, Gomez provided a detailed videotaped statement regarding the robbery, and disclosed the names of others involved in committing the robbery, including Trujillo. Shortly after providing her videotaped statement, Gomez pleaded guilty to attempted aggravated robbery. Gomez later was sentenced to sixteen years of imprisonment with the understanding that the district attorney would stipulate to a reduced sentence of eight years following her trial testimony against Trujillo and other defendants.

On October 13, 2005, counsel for Trujillo served a subpoena duces tecum on the public defender representing Gomez, Kevin Pauly. The subpoena sought a copy of Pauly's file regarding his representation of Gomez. Trujillo's counsel intended to obtain documents showing any inconsistencies between what Gomez told Pauly and what she said in her recorded statement; documents regarding the plea negotiations among Gomez, Pauly, and the district attorney; and documents showing when and how Pauly and Gomez learned of Dominguez's statement. Particularly, Trujillo's counsel wanted to determine whether Gomez had an opportunity to review Dominguez's May 2004 statement before providing her own statement in July 2004 and wanted to locate information that might help Trujillo challenge Gomez's credibility.

Pauly filed a motion to quash the subpoena duces tecum, arguing that the requested information was protected by the attorney-client privilege. The trial court held a hearing on Pauly's motion on October 17, 2005. At the hearing, counsel for Trujillo argued that Gomez had waived the attorney-client privilege by disclosing information to a third party (the district attorney) and by agreeing to provide "truthful" testimony as part of her plea agreement, thereby placing her credibility at issue. Apparently agreeing with Trujillo's arguments, the court ordered Pauly to produce the requested materials for in camera review within forty-eight hours. Pauly then filed a second motion to quash—in effect, a motion for reconsideration—on October 19, 2005. The trial court stayed its prior order requiring in camera review, and held a second hearing on the motions to quash on October 25, 2005.

At the October 25 hearing, the trial court made detailed findings regarding the nature of the documents being requested and the reasons for their in camera production, as required by this Court's decision in People v. Madera, 112 P.3d 688 (Colo.2005). In Madera, we announced the following six-part framework that a trial court must apply before requiring in camera inspection of an attorney's case file:

Before granting a request for in camera inspection of an attorney's case file, the trial court must determine

(1) as precisely as possible, the information sought to be discovered,

(2) whether the information is relevant to a matter at issue,

(3) whether the information could be obtained by any other means,

(4) whether the information is privileged,

(5) if it is privileged, whether the privilege has been waived,

(6) if it is privileged, but has been waived, either explicitly or impliedly, the scope of the waiver.

Id. at 691.

In applying these factors, the trial court first defined the scope of the documents requested by Trujillo to include:

(1) documents regarding negotiations between Gomez, her counsel, and the district attorney, with "negotiations" defined to include discussions between only Gomez and Pauly; and

(2) documents reflecting when Gomez or her counsel became aware of Dominguez's statement. Second, the trial court concluded that the requested documents were relevant to the case, and in particular, relevant to Gomez's credibility. Third, the trial court found that Trujillo had exhausted other means of obtaining the requested documents. Fourth, the trial court noted that the requested documents are privileged.

With regard to the fifth factor, the court below noted that an implied waiver of the attorney-client privilege may be found when the defendant places the allegedly privileged communication at issue in the litigation. The court then held that Gomez had placed her attorney-client communications at issue by negotiating and entering into a plea agreement with the prosecution. Specifically, the court held that the waiver extended to negotiations regarding the stipulation, the sentence to which she agreed, and the information she told her attorney when she learned of Dominguez's statement:

My finding is that by accepting and negotiating this disposition with the prosecution, Ms. Gomez has done just that [placed the attorney-client communications at issue], so I find a waiver of the privilege as to the negotiations regarding the stipulations, as I've stated, and the sentence accepted by Ms. Gomez as well as the information relating to when she became aware of Mr. Dominguez' prior statement, if at all, and the content of that statement, the content of his statement, when she was aware of it and whether it was prior to the time she made her own statement.

Finally, the trial court concluded that the scope of Gomez's waiver was limited to the documents defined in the first factor.

At the conclusion of the October 25 hearing, having concluded that the Madera test for in camera review was satisfied, the trial court again ordered Pauly to produce portions of his file for in camera review. Pauly, on behalf of himself and Gomez, challenged the trial court's order by filing a C.A.R. 21 petition with the Court, and we issued a rule to show cause. We now make the rule absolute.

II. ANALYSIS

The court below found, and we agree, that the documents at issue are protected by the attorney-client privilege. "The attorney-client privilege applies to confidential matters communicated by or to the client in the course of obtaining counsel, advice, or direction with respect to the client's rights or obligations." Madera, 112 P.3d at 690 (citations and internal quotations omitted). Colorado has codified the attorney-client privilege as follows:

An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment . . . .

§ 13-90-107(1)(b), C.R.S. (2006). Thus the privilege is held by the client and may be waived only by the client. Losavio v. Dist. Court, 188 Colo. 127, 133, 533 P.2d 32, 35 (1975). The question we must resolve is whether, notwithstanding those protections, Gomez impliedly waived the attorney-client privilege when she entered into a negotiated plea agreement with the district attorney and promised to provide truthful testimony as part of that agreement.

A. In camera Review of Privileged Documents

The attorney-client privilege is not absolute. There are recognized exceptions to the privilege, and the privilege may be waived in certain circumstances. But the exceptions are simply that—exceptions. The burden of establishing a waiver or an exception lies with the party seeking to overcome the privilege. Wesp v. Everson, 33 P.3d 191, 198 (Colo.2001). In situations where it is unclear whether the privilege has actually been waived or an exception applies, a trial court may order in camera review to assess the nature of the privileged documents. See, e.g., Caldwell v. Dist....