v.

• Decision Date: 15 October 2018
• Docket Number: Supreme Court Case No. 16SC552
• Citation: 2018 CO 82
• Court: Colorado Supreme Court
• Parties: Petitioner: Nicholas Javier Zapata, v. Respondent: The People of the State of Colorado.

2018 CO 82

Petitioner: Nicholas Javier Zapata, v. Respondent: The People of the State of Colorado.

Supreme Court Case No. 16SC552

Supreme Court of the State of Colorado

October 15, 2018

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE

Physician-Patient Privilege—Psychologist-Client Privilege—Competency Evaluations—Res Gestae.

In this case, the trial court declined to give the defendant access to, or to review in camera, competency reports regarding another defendant in a factually related but separate case. Over objection, the trial court also admitted uncharged misconduct evidence as res gestae.

The supreme court holds that competency reports are protected by the physician-patient or psychologist-client privilege and that the examinee did not waive the privilege as to the defendant when he put his competency in dispute in his own case. The supreme court also holds that the defendant's confrontation right is not implicated and that the defendant did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court pursuant to due process or Crim. P. 16.

The supreme court further holds that any error in admitting the uncharged misconduct evidence as res gestae was harmless given the strong evidence of the defendant's guilt.

Accordingly, the supreme court affirms the judgment of the court of appeals.

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 13CA2155

Judgment Affirmed

en banc

Attorneys for Petitioner:

Megan Ring, Public Defender

Joseph P. Hough, Deputy Public Defender

Denver, Colorado

Attorneys for Respondent:

Cynthia H. Coffman, Attorney General

Gabriel P. Olivares, Assistant Attorney General

Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court.

JUSTICE HART specially concurs, and JUSTICE GABRIEL joins in the special concurrence.

JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS joins in the dissent.

¶1 One afternoon several years ago, the petitioner, Nicholas Zapata, and Jose Murillo entered a Littleton convenience store. Murillo darted behind the checkout counter, where he used a knife to attack the clerk, the only other person in the store. Zapata watched the attack from the other side of the counter. Perhaps to everyone's surprise, the victim quickly managed to subdue Murillo with a hammer that happened to be located behind the counter. With that unexpected turn of events, Zapata fled.

¶2 The People charged Zapata with attempted first degree murder and other crimes. At trial, the People asserted that Zapata orchestrated the attack. They painted a picture of a jealous and controlling Zapata, seeking revenge on behalf of his ex-girlfriend, S.M. S.M. worked in the convenience store and had confided in Zapata several weeks earlier that her boss, the store owner and father of the victim, had sexually harassed her. The People argued that Zapata convinced Murillo to do his dirty work in seeking revenge, but at the store, they confused the son for his father. The jury convicted Zapata of attempted second degree murder and first degree assault.

¶3 Zapata seeks a new trial because the trial court declined to give him access to, or to review in camera, certain competency reports regarding Murillo (who suffered brain damage as a result of the hammer blows). Zapata alleges the reports might contain exculpatory information about the criminal offenses of which he now stands convicted. He also argues that the trial court committed reversible error when it admitted "res gestae" evidence of Zapata's earlier threatening behavior toward S.M.

¶4 A division of the court of appeals affirmed Zapata's convictions, concluding as follows: Murillo's competency reports were privileged and no waiver justifieddisclosure in Zapata's case; Zapata failed to make a particularized showing that the reports contained exculpatory information; and any error in admitting the res gestae evidence was harmless. People v. Zapata, 2016 COA 75, ¶¶ 22-30, 39, ___ P.3d ___.

¶5 We hold that Murillo's competency reports are protected by the physician-patient or psychologist-client privilege and Murillo did not waive the privilege as to Zapata when he put his competency in dispute in his own case. We further conclude that Zapata did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court. Finally, we conclude that any error in the admission of res gestae evidence was harmless given the strong evidence of Zapata's guilt.

¶6 Thus, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶7 Before the assault in question, Zapata and Murillo boarded a light rail train in downtown Denver. Video surveillance footage shows the two stepping off the train seconds apart at the downtown Littleton station and walking side-by-side away from the station. About that time, Zapata texted S.M.: "Don[']t be there." He sent S.M. the same warning twice more in the next thirty minutes. S.M. responded to each message with confusion, asking what and where Zapata was talking about.

¶8 A short time after getting off the train, Zapata and Murillo entered Littleton Neighborhood Food and Gas. The victim, the son of the store owner, was there alone, working as a clerk. Murillo headed straight behind the counter and attacked the victim with a steak knife. The victim fought back first by yanking Murillo's shirt over hishead, and then by grabbing a hammer from a nearby tool box and using it to repeatedly strike Murillo in the head.

¶9 Zapata stayed on the other side of the counter and watched. A videotape of the incident that was admitted into evidence reveals that some variation of the words, "Get him, get him, get him good" were muttered, although at trial, the parties disputed whether Zapata or Murillo said the words. As Murillo groaned, Zapata backed up, turned around, and walked out of the store. The victim eventually subdued his assailant, Murillo, by battering him into unconsciousness with the victim's improvised weapon.

¶10 The People charged Zapata and Murillo, separately, with attempted first degree murder and other crimes. The People's theory was that Zapata, upon learning that the store owner had sexually harassed S.M., sought revenge. According to the People's version of events, Zapata and Murillo mistook the victim for his father. Zapata countered that there was no shared plan; rather, "Murillo was a loose cannon," addicted to drugs.

¶11 In the proceedings against Murillo, Murillo's counsel questioned his competency to stand trial. The fight had left Murillo with brain damage. Murillo's competency was evaluated twice, once by court order and another time at his own request. The record does not reveal what type of mental health professional examined Murillo. Regardless, Murillo eventually withdrew his claim of incompetency and entered plea negotiations with the prosecution. Murillo agreed to plead guilty to the lesser charge of conspiracy to commit second degree murder; in exchange, he would testify against Zapata.

¶12 Zapata sought access to records of any statements regarding the attack made by Murillo during his competency evaluations. Zapata alleged there was potentially exculpatory material in the competency reports, contending that Murillo could have made inconsistent statements to the competency evaluators that would provide impeachment material. Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing "[w]aiver of privilege" as to competency evaluations), and Crim. P. 16.

¶13 Initially, the trial court ruled that Zapata was entitled to the reports. Murillo's counsel, however, objected on the grounds that the reports were privileged. At a hearing on the matter, the prosecution acknowledged that it had examined at least one of the competency reports during plea negotiations in Murillo's case, noting that there were "maybe two lines about the actual incident in this competency evaluation, and there is nothing in the competency evaluation that is not in the proffer that we've already discovered anyway."

¶14 Ultimately, the trial court denied Zapata's request for access to the competency reports, reasoning that they are privileged and the statute outlining who may receive information regarding a defendant's competency evaluation—the judge, defense counsel, and prosecution in the defendant's case—doesn't include a codefendant in a separate case. Zapata's attorney then requested that the court review the material in camera. The court denied that request as well.

¶15 The People also sought to introduce evidence that Zapata knew about the alleged sexual harassment of S.M. and evidence from a week before the convenience storeincident when Zapata allegedly sent a series of harassing, threatening, and profanity-ridden texts to S.M. The People argued the evidence was res gestae because "[Zapata's] jealousy and desire to resume his relationship with [S.M.], coupled with [the sexual harassment], form a crucial part of the overall narrative of this case," and the evidence regarding how obsessive Zapata was about S.M. was relevant to "why he would choose to take such an extreme action against the store owner." Zapata protested, arguing that S.M. was expected to testify at trial about his connection to the store and that Zapata's actions weeks before the attack bore no relevance to the attack at the convenience store and were unduly prejudicial. The trial court admitted the evidence as res gestae, reasoning that the evidence was necessary to explain "why this particular store, this particular store clerk," and stating that otherwise, "we're starting in the middle of the story."

¶16 On the first day of...