Salazar v. People, 92SC755

Citation870 P.2d 1215
Decision Date14 March 1994
Docket NumberNo. 92SC755,92SC755
PartiesLester SALAZAR, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

Shand, McLachlan & Newbold, P.C., Michael E. McLachlan, Durango, for petitioner.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russell, First Asst. Atty. Gen., Matthew S. Holman, Asst. Atty. Gen., Criminal Enforcement Section, Denver, for respondent.

Justice SCOTT delivered the Opinion of the Court.

Lester Salazar stands convicted of attempted murder in the first degree and reckless endangerment after a jury trial. We granted certiorari to review People v. Salazar, No. 91CA0846, slip op. (Colo.App. Sept. 10, 1992) (not selected for official publication), to determine whether the court of appeals erred when it affirmed Salazar's conviction despite the prosecution's violations of the rules of discovery. Because the defendant was not prejudiced by the discovery violations, we affirm the conviction and the holding of the court of appeals.

I.

In August, 1990, petitioner, Lester Salazar (Salazar) attended a party in Durango, Colorado. He was accompanied by his brother, Brian Salazar (Brian) and their friend, Danny Herrera (Herrera). That night, Salazar, Brian, Herrera, and another friend, Wilfred Albo (Albo), left the party armed with a .22 caliber semi-automatic pistol, a .22 caliber automatic rifle and two shotguns. Sometime after leaving the party, Salazar and his companions got into a car driven by Chris Rohrer (Rohrer) with the intention of confronting the person who threatened Albo with a gun earlier that evening.

While riding in Rohrer's car, Albo identified the driver of an adjacent car, David Rael, as the person who threatened him. Rael, who was accompanied by Amy Barnes, his girlfriend, was driving in the same direction as Rohrer. As both vehicles approached the stoplight at 14th Street and Main Avenue in Durango, Salazar and his companions began shouting insults and profanities at Rael and Barnes. At the intersection, Rohrer's car pulled up alongside Rael's Buick. Amid the barrage of insults, Salazar, who was seated in the rear of Rohrer's car on the passenger side, asked if he should shoot at the people in the other car. At that time the light changed and both cars started in the same direction. After following for about two miles, Rohrer again pulled even with Rael's vehicle and at least two shots were fired from Rohrer's car.

Rohrer was one of several witnesses at the trial. He testified that as soon as he had pulled even with Rael's car, he heard a shot from Salazar's position in the back seat and the breaking of glass. Then, his testimony continued, as he slammed on his brakes he heard another shot, this one coming from the front passenger seat where Brian was seated holding a pistol. Rohrer testified that immediately after the second shot was fired, he turned his car around and drove away.

Both shots struck Rael's vehicle: one hit the base of the driver's side door, the other passed through the driver's side window narrowly missing Rael's head. Shortly thereafter, Salazar and Brian were arrested and both were charged with attempted first-degree murder, § 18-3-102(1)(a), 8B C.R.S. (1986), and reckless endangerment, § 18-3-208, 8B C.R.S. (1986). 1

After a four-day trial, the jury found Salazar guilty on both charges. Claiming that he was denied his right to a fair trial due to discovery violations occurring prior to and during trial, Salazar filed a motion for a new trial. In his motion, Salazar cited two specific violations: first, that the People failed to disclose exculpatory statements made by Brian to a prosecutorial investigator during the trial; and second, that the People failed to disclose to the defense or to provide the defense with a copy of a police report indicating that a pellet gun which had previously been examined by a defense investigator had been discovered on the floor of Rohrer's car. The trial court denied the motion and sentenced Salazar to sixteen years in the custody of the Department of Corrections. On appeal, Salazar again argued that he was prejudiced by the alleged discovery violations noted in his motion for new trial, and also contended that he was prejudiced by the untimely disclosure of a ballistics report prepared by the People's expert prior to trial. The court of appeals affirmed Salazar's convictions, finding no prejudice in the alleged discovery violations.

II. The alleged discovery violations

A. The ballistics report

The first alleged discovery violation involves the People's untimely disclosure of a ballistics report prepared by an expert for the prosecution. The report in question was prepared by ballistics expert, Lucien Haag, who the People retained to prove their argument that Salazar fired the shot which narrowly missed hitting the driver of the other vehicle. The People theorized that Salazar's shot passed through the driver's side window, narrowly missing the driver's head; hit the front windshield, cracking the windshield but not perforating it; then slid down behind the dashboard, decimating itself in the process so that the largest remaining piece of lead was no larger than the head of a pin. The bullet from Brian's pistol, the People theorized, was shot towards the ground and ended up lodged near the bottom of the driver's side door of Rael's vehicle. On January 4, 1991, Haag performed velocity tests with the .22 caliber pistol allegedly fired by Brian and the .22 caliber rifle allegedly fired by Salazar. Two days later, on January 6, he prepared a written report based on the results of those velocity tests. Three days later, on January 9, he was endorsed as a witness for the state. On January 10, 1991, Salazar was given a brief "overview report" discussing the tests performed by Haag and prepared by an officer of the Durango Police Department. This overview report stated that the "complete results of [Haag's] tests ... will be arriving in the near future." Salazar then filed a motion to strike Haag's endorsement and for a continuance based on the disclosure of this "undetailed and new" evidence just thirty days prior to trial. 2 The trial court scheduled a hearing on Salazar's motion for January 18, 1991. On January 17, 1991, one day prior to the scheduled hearing, defense counsel went to the police station to view the driver's side door of the victim's vehicle which was allegedly struck by a bullet fired by Brian. While at the station, defense counsel first learned that the police were in possession of Haag's report. Defense counsel obtained Haag's report that afternoon.

At the January 18 hearing on the motion to strike Haag's endorsement and for a continuance, Salazar argued that Haag's endorsement was untimely and that, as a consequence, he was entitled to a continuance. Salazar argued the continuance was necessary so that defense counsel could review Haag's report, decide whether to devise other testing to counter Haag's work, discuss the financial ramifications of any defense effort to counter such a report, and, if necessary, hire an expert to prepare a defense to Haag's anticipated testimony. The trial court denied the motion, finding that the endorsement of Haag was timely and was not prejudicial in that defense counsel had adequate time to perform his own tests and to prepare a defense.

On appeal, Salazar argued that he was prejudiced by the late disclosure of Haag's report. Emphasizing Salazar's failure to contact Haag after Haag was endorsed but before Salazar received Haag's report, the court of appeals found no abuse of discretion in the trial court's denial of Salazar's motion for a continuance or in the court's admission of Haag's report and testimony. 3 Salazar, No. 91CA0846, slip op. at 4.

B. Brian's statements to the People's investigator

The second claimed discovery violation arises from statements made by Brian Salazar, the defendant's brother, to the People's investigator. During the trial, the district attorney interviewed Brian in response to Salazar's trial testimony that after he (Salazar) fired his gun once "in the air," he heard two additional shots which he attributed to Brian. A district attorney investigator, Charles Bower, conducted the interview. According to Bower, Brian stated that he fired one shot only at the victim's car. 4 When Bower asked Brian if he was sure, Brian responded affirmatively. Bower then relayed this information to the prosecutor in the courtroom. About forty minutes later, the prosecutor requested that Bower ask Brian if there was any possibility that his one shot could have struck the window to the car door. Bower testified that Brian responded negatively to this question, and when Bower asked if he was sure, Brian turned around, pointed his finger down towards the ground, and said "no, it was just like that, down." 5 Subsequently, in a tape-recorded interview occurring after the trial and conducted by an investigator for the defense, Brian presented a different version of his response to Bower's question. Brian said that he told Bower "it was possible, it was very possible" that he (Brian) fired a second shot. Later, at the hearing on Salazar's motion for a new trial, Brian testified that when Bower asked if it was possible that he had fired two shots, he said "[t]o tell the truth, I don't know. It may be, maybe not, I don't know."

In denying the motion for a new trial, the trial court rejected Salazar's argument that Brian's statements should have been disclosed to the defense. The trial court held that Brian's statement was not credible and that even if it was believed it merely presented the possibility, not the probability, that a third shot was fired, and therefore lacked probative value. The court of appeals also rejected Salazar's contention, finding that the People were under no duty pursuant to Crim.P. 16(I)(a)(1)(I) to disclose...

To continue reading

Request your trial
24 cases
  • People v. Robles
    • United States
    • Colorado Court of Appeals
    • March 31, 2011
    ...“spirit” of that rule.1 We review the district court's resolution of discovery issues for an abuse of discretion. See Salazar v. People, 870 P.2d 1215, 1218 (Colo.1994); People in Interest of A.D.T., 232 P.3d 313, 316 (Colo.App.2010); People v. Denton, 91 P.3d 388, 391 (Colo.App.2003). A co......
  • Crosby v. Watkins
    • United States
    • U.S. District Court — District of Colorado
    • January 28, 2009
    ...of prejudice to a defendant, a conviction will not be reversed solely because of noncompliance with discovery rules. Salazar v. People, 870 P.2d 1215 (Colo.1994); People v. Graham, 678 P.2d 1043 (Colo.App. 1983), cert. denied, 467 U.S. 1216 [104 S.Ct. 2660, 81 L.Ed.2d 366] (1984). A "mistri......
  • People v. Mucklow
    • United States
    • Colorado Supreme Court
    • December 26, 2000
    ...information and the information not disclosed would have altered the outcome of the underlying criminal proceeding. See Salazar v. People, 870 P.2d 1215, 1221 (Colo.1994)(holding that a prosecuting attorney has both a statutory and a constitutional obligation to disclose to the defense any ......
  • People v. Zadra
    • United States
    • Colorado Court of Appeals
    • October 24, 2013
    ...had listened to an attorney-client phone conversation. Absent a showing of prejudice, there is no reversible error. See Salazar v. People, 870 P.2d 1215, 1220 (Colo.1994) ("Failure to comply with discovery rules is not reversible error absent a demonstration of prejudice to the defendant.")......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT