People v. Zadra

• Decision Date: 24 October 2013
• Citation: 396 P.3d 34
• Docket Number: 10CA1207
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Michelle L. ZADRA, Defendant–Appellant.
• Court: Colorado Court of Appeals

396 P.3d 34

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

v.Michelle L. ZADRA, Defendant–Appellant.

Court of Appeals No. 10CA1207

Colorado Court of Appeals, Div. III.

Announced October 24, 2013

Rehearing Denied December 12, 2013

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Cox Baker & Page, LLC, Anne Whalen Gill, Castle Rock, Colorado, for Defendant–Appellant.

Opinion by JUDGE J. JONES

¶ 1Defendant, Michelle L. Zadra, appeals the judgment of conviction entered on jury verdicts finding her guilty of three counts of official misconduct, one count of false reporting, and seven counts of perjury.She also appeals her sentence.

¶ 2Defendant's contentions fail, with one exception.We conclude that two of defendant's perjury convictions violate the constitutional prohibition against double jeopardy.That is because three of the perjury convictions are based on substantially identical statements, given to the same interrogator at the same proceeding.Accordingly, we affirm defendant's convictions on all counts except counts 9 and 10; the convictions on those counts merge into the conviction on count 6.We also affirm the sentences, except for the sentences on counts 9 and 10, which we vacate; the total sentence of incarceration is therefore reduced from twenty-eight days to twenty-two.

I.Background

¶ 3Defendant served as a captain in the Gunnison County Sheriff's Office, where she supervised the county jail.According to the prosecution's evidence, a jail employee told inmate Joseph Stromayer that jail staff members had been listening to his telephone conversations with his attorney.Mr. Stromayer complained about the eavesdropping to defendant and to his attorney, Gary Fielder.Mr. Fielder filed a motion to dismiss charges against Mr. Stromayer, alleging that jail employees were monitoring attorney-client phone calls.Defendant testified at a hearing on the motion(Stromayer hearing) that she was the only jail employee with the ability to monitor inmates' phone calls and that she had never knowingly listened to a phone conversation between Mr. Stromayer and his attorney.

¶ 4 Subsequently, the Colorado Bureau of Investigation (CBI) launched an investigation into concerns about other matters at the Gunnison County jail.The scope of the investigation eventually expanded to include the alleged monitoring of inmate phone conversations and defendant's testimony at the Stromayer hearing about phone conversation monitoring.Agents interrogated defendant at least twice after she became a suspect.During the second interrogation, defendant confessed that she had not been forthright during her testimony at the Stromayer hearing.

¶ 5 About six months later, the People charged defendant with three counts of official misconduct, one count of false reporting, and nine counts of perjury based on her testimony at the Stromayer hearing.At the end of the trial, the district court dismissed two perjury counts.The jury convicted defendant of the remaining eleven counts.The court sentenced defendant to a term of twenty-eight days in jail (including three days on each of the perjury convictions, to be served consecutively), plus six years of supervised probation.

II.Discussion

¶ 6 On appeal, defendant contends that the district court erred by (1) denying her motions to dismiss the case as a discovery sanction; (2) denying her motion to suppress statements she made to CBI agents; (3) allowing conviction on insufficient evidence; (4) submitting improper verdict forms to the jury; (5) facilitating miscellaneous errors at trial; and (6) failing to merge the perjury convictions or to order the sentences thereon to be served concurrently.We address each contention in turn.

A.Discovery Violations

¶ 7Defendant first contends that the district court erred by denying her counsel's motions to dismiss the case as a sanction for the prosecution's discovery violations.We are not persuaded.

1.Background

¶ 8 Discovery did not proceed smoothly in this case.The prosecution produced roughly 2,000 pages, along with audio-visual material, less than a month before trial.Defendant's counsel moved for dismissal as a discovery sanction.

¶ 9The district court, in its written order on the motion, admonished the prosecutor for having failed to produce the recorded CBI interrogation of defendant until the morning of the suppression hearing: "This clearly violates the obligations of the District Attorney under Rule 16."Nevertheless, because defendant's counsel had known of the recording and had an opportunity to review it, the court concluded that it had "not been shown how there has been any prejudice and finds none."

¶ 10The court reset the trial date to allow the defense an additional two months to prepare, and in effect created a rebuttable presumption that discovery produced within a month of the original trial date would be excluded.

¶ 11The court rejected defendant's other claims of discovery violations, finding:

• No violation for failing to replace an uncertified transcript of the Stromayer hearing with a certified transcript, because the differences were minimal;

• No violation for the late endorsement of a telephone company employee as a witness, because that witness was simply replacing a previously designated employee from the predecessor corporation; and

• No violation for failing to produce recordings of the alleged attorney-client phone conversations, because the prosecutor was not authorized to release them until the court had ruled on the issue of privilege.

¶ 12Defendant's counsel again moved for dismissal as a discovery sanction on the eve of trial, based on the prosecution's delayed production of the recordings of attorney-client phone conversations.The court denied this second motion to dismiss, apparently because once the district court had allowed the prosecutor to release the recordings, the prosecutor had complied promptly with the court's order.

¶ 13 Another discovery dispute arose on the final day of trial during the testimony of CBI Agent Jack Haynes.Defendant's counsel objected that Agent Haynes seemed to be testifying from his knowledge of defendant's handwritten notes on details of phone conversations she had monitored, but that the prosecutor had not produced any such notes in discovery.The court denied defendant's counsel's oral and written motions to dismiss for the late production of the handwritten notes, but suspended Agent Haynes' testimony until he could retrieve the notes from his office.Counsel reviewed the notes before cross-examination concluded.The court also prohibited the prosecution from using defendant's notes as an exhibit—even though they apparently recorded details from attorney-client phone conversations, and even though the court allowed defendant's counsel to use the notes in cross-examination.¹

2.Standard of Review and Applicable Law

¶ 14We review a district court's ruling on discovery sanctions for an abuse of discretion, and we will not disturb that ruling on appeal unless it was manifestly arbitrary, unreasonable, or unfair.People v. Lee,18 P.3d 192, 196(Colo.2001);People v. Moore,226 P.3d 1076, 1092(Colo.App.2009)("Because of the multiplicity of considerations involved and the uniqueness of each case, great deference is owed to trial courts in this regard....").

¶ 15The district court has broad discretion in determining the proper sanction for a Crim. P. 16 violation.People v. Cevallos–Acosta,140 P.3d 116, 125(Colo.App.2005).Discovery sanctions serve the dual purposes of protecting the integrity of the truth-finding process and deterring prosecutorial misconduct.People v. Dist. Court,808 P.2d 831, 836(Colo.1991).A district court should account for these purposes by imposing the least severe sanction that will ensure full compliance with the court's discovery orders and protect the defendant's right to due process.Id. at 836–37.

¶ 16 Therefore, a district court determining appropriate sanctions for a discovery violation should consider (1) the reason for the delay; (2) any prejudice a party suffered because of the delay; and (3) the feasibility of curing any prejudice through a continuance or recess during trial.Lee,18 P.3d at 196.

¶ 17 Dismissal is a drastic sanction, typically reserved for willful misconduct.People v. Daley,97 P.3d 295, 298(Colo.App.2004)("In the absence of willful misconduct, dismissal as a sanction for a discovery violation is usually beyond the discretion of the trial court.");see alsoPeople v. Thurman,787 P.2d 646, 655(Colo.1990)(prosecution steadfastly refused to release informant information despite a courtorder);People v. Alberico,817 P.2d 573, 575–76(Colo.App.1991)(prosecution failed to share victim interviews that were materially inconsistent with victim's testimony at trial until after the prosecution's case-in-chief).

3.Analysis

¶ 18We assume for the purpose of this analysis that the prosecutor violated Crim. P. 16 in the two instances defendant identifies.But the district court did not find, and the record does not show, that the violations were willful.Rather, the record shows that the prosecutor shared the interrogation recording soon after obtaining it from investigators and was not even aware of the handwritten notes until Agent Haynes took the stand at trial.

¶ 19 Further, defendant's opening brief does not even allege, much less identify, any prejudice stemming from the late production of information, and her reply brief includes only a conclusory assertion that the prejudice should have been "obvious."

¶ 20We do not perceive any obvious prejudice that could have changed the outcome of the trial.Once the district court reset the trial date, defendant's counsel had more than sixty days to review the interrogation recording.With respect to the handwritten notes, defendant had written them and had given them to investigators; they were no surprise to...