Zoll v. People

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 September 10, 2018
8
9 2018 CO 700
1 No. 15SC163, Zoll v. People—Disclosure—In Camera Review—Critical Stage.
2
3 The supreme court holds that when an appellate court determines that the trial
4 court erred in failing to disclose certain documents from a file reviewed in camera, the
5 proper remedy is to remand the case to the trial court with instructions to provide the
6 improperly withheld documents to the parties and to afford the defendant an
7 opportunity to demonstrate that there is a reasonable probability that, had the
8 documents been disclosed before trial, the result of the proceeding would have been
9 different. The supreme court also holds that, even if the court of appeals erred in
0 determining that replaying a small portion of a recording in the courtroom during
1 deliberations was not a critical stage of the proceeding that required the defendant’s
2 presence, any error in failing to secure the defendant’s attendance was harmless beyond
3 a reasonable doubt.
1
2
3 The Supreme Court of the State of Colorado
4 2 East 14th Avenue • Denver, Colorado 80203
5 2018 CO 706 Supreme Court Case No. 15SC163
7 Certiorari to the Colorado Court of Appeals
8 Court of Appeals Case No. 11CA2316
9 Petitioner:
0 Matthew J. Zoll,
1 v.
2 Respondent:
3 The People of the State of Colorado.
4 Judgment Affirmed in Part and Reversed in Part
5 en banc
6 September 10, 2018
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8
9 Attorneys for Petitioner:
0 Megan Ring, Public Defender
1 Tracy C. Renner, Deputy Public Defender
2 Denver, Colorado
3
4 Attorneys for Respondent:
5 Cynthia H. Coffman, Attorney General
6 Melissa D. Allen, Senior Assistant Attorney General
7 Denver, Colorado
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9
0
1
2
3
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5
6
7 JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 A jury found petitioner, Matthew Zoll, guilty of second degree assault on a peace
officer, criminal impersonation, and two counts of resisting arrest. The trial court
subsequently adjudicated Zoll a habitual criminal and sentenced him to eighteen years
in the Department of Corrections. Zoll appealed, and a division of the court of appeals
affirmed his convictions in a unanimous, unpublished opinion. We granted certiorari to
determine: (1) the proper remedy when an appellate court concludes that the trial court
incorrectly failed to disclose certain documents from a responding officer’s personnel
file; and (2) whether replaying a 911 recording1 for the jury in the courtroom during
deliberations is a critical stage of the proceeding requiring the defendant’s presence.2
¶2 We hold that the court of appeals erred in assessing whether the nondisclosure of
documents in a responding officer’s personnel file affected the outcome of the trial.
1The recording is actually of police radio communications. However, because the
parties refer to it as a “911 recording,” we do the same here for the sake of consistency.
2 Specifically, we granted certiorari on the following issues:
1. Whether an appellate court, having concluded that records relating to a police
officer’s credibility should have been disclosed prior to trial, must remand the
case to the trial court to determine whether a new trial is required.
2. Whether the court of appeals applied an incorrect legal standard for
determining whether a new trial is required.
3. Whether the court of appeals erred in concluding that replaying a 911
recording for the jury during deliberations was not a critical stage of the
proceedings requiring petitioner’s presence.
Because the first two issues go hand-in-hand, we address them together.
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Instead, the court of appeals should have remanded the case to the trial court with
directions to disclose the improperly withheld documents to the parties and to afford
Zoll an opportunity to demonstrate that there is a reasonable probability that, had the
documents been disclosed to him before trial, the result of the proceeding would have
been different. We further hold that, even if replaying the 911 recording for the jury in
the courtroom during deliberations could be deemed a critical stage of the proceeding,
Zoll’s absence was harmless beyond a reasonable doubt. Therefore, we decline to
address whether the court of appeals correctly decided that Zoll’s absence did not occur
during a critical stage of the proceeding. Accordingly, we reverse in part, affirm in
part—albeit on different grounds—and remand to the court of appeals with instructions
to return the case to the district court for further proceedings consistent with this
opinion.
I. Facts and Procedural History
¶3 Deputy Mitchell was on patrol around 2:00 a.m. when he discovered a car
parked in a construction area. He became suspicious, so he pulled up behind it. Inside
he found Zoll in the passenger seat and Zoll’s friend in the driver’s seat. He chatted
with them, took their names, and walked back to his patrol car to check the information
provided. Zoll, who had no form of identification and had given a false name, was
acting nervous and looking back in the direction of the patrol car. As Deputy Mitchell
returned with his gun drawn to talk to Zoll, things quickly went south, although the
jury heard different versions of what occurred. According to Deputy Mitchell, Zoll
opened his door and attacked him; but according to Zoll’s friend, Zoll tried to flee and
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struggled with the deputy in the process. Zoll was subsequently charged with multiple
crimes, including assault on a peace officer.
¶4 Not surprisingly, whose story held water became a central issue in the case.
Before trial, Zoll served a subpoena on Deputy Mitchell’s employer to obtain
information from the deputy’s disciplinary file. Zoll specifically requested records
related to any internal affairs investigations, criminal charges, and complaints that
might indicate a “departure from the truth.” Deputy Mitchell’s employer tendered the
records requested to the trial court which, in turn, reviewed them in camera to protect
the deputy’s privacy. The trial court performed a balancing test, weighing the deputy’s
expectation of privacy against Zoll’s interest in defending himself, and then disclosed
four sets of documents. As mentioned, following a jury trial, Zoll was convicted of
assault on a peace officer, two counts of resisting arrest, and criminal impersonation.
¶5 On appeal, Zoll asked a division of the court of appeals to review the disciplinary
records subpoenaed in case the trial court had missed something. The division did so
and concluded that the trial court should have disclosed one additional set of
documents, which related to an August 2010 incident (the “August 2010 documents”).
However, it declined to reverse, holding that the undisclosed records “did not affect the
outcome of the trial and was harmless beyond a reasonable doubt.”
¶6 Zoll also contended that his presence was constitutionally required when, at the
jury’s request, the trial court replayed a 911 recording in the courtroom during
deliberations. Shortly after receiving the jury’s request, the trial court asked the
Sheriff’s deputies to escort Zoll, who was in custody, back into the courtroom so that he
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could be present when the 911 recording was replayed. After waiting approximately
twenty minutes, defense counsel announced that he was “fine with waiving” Zoll’s
appearance. The trial court accepted counsel’s purported waiver, ordered the jury
brought in, and replayed the 911 recording outside Zoll’s presence. Zoll urged the
division to reverse his convictions, arguing this was a critical stage of the criminal
proceeding that he had a constitutional right to attend. The division disagreed. It
concluded that replaying the recording was not a critical stage of the proceeding
requiring Zoll’s presence.
II. Analysis
¶7 Zoll avers that the court of appeals erred in assessing whether the nondisclosure
of the August 2010 documents affected the outcome of the trial. Rather, asserts Zoll, the
court of appeals should have remanded the case to the trial court with instructions to
disclose the improperly withheld documents to the parties and to give Zoll an
opportunity to show that a reasonable probability exists that, had the documents been
disclosed to him before trial, the result of the proceeding would have been different.
Zoll further maintains that replaying the 911 recording during deliberations was a
critical stage of the proceeding at which he had a constitutional right to be present. We
address each contention in turn.
A. Proper Remedy for Trial Court’s Erroneous Failure to
Disclose Documents Following In Camera Review
¶8 We have not had occasion to address the proper remedy when, following an in
camera review, the trial court provides the parties access to some, but not all, of the
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documents that should be disclosed. In determining that a remand was not necessary,
the court of appeals relied on People v. Kyle, 111 P.3d 491 (Colo. App. 2004). There, the
defendant claimed that the trial court erred in denying him access to records of the child
sexual assault victim maintained by the Department of Human Services (“DHS”) and a
treatment facility. Id. at 503. A division of the court of appeals disagreed, noting that
the defendant received a copy of certain notes from the victim’s psychotherapist related
to the allegations of sexual abuse brought against him. Id. Although the division
acknowledged that the trial court neither disclosed nor reviewed the rest of the
documents, it concluded, based on its own in camera review, that reversal was not
required because “none of those documents would have changed the outcome of any
pretrial proceeding or defendant’s trial.” Id. at 504.
¶9 Kyle relied exclusively on Exline v. Gunter, 985 F.2d 487 (10th Cir. 1993), for the
proposition that when a trial court errs in failing to conduct an in camera review of
DHS records, “reversal is not required if an appellate court can conclude, upon review
of the records, that the information in the files would probably not have changed the
outcome of the defendant’s trial, or if the nondisclosure was harmless beyond a
reasonable doubt.” Kyle, 111 P.3d at 504. But nothing in Exline supports this statement.
In Exline, a federal habeas corpus proceeding, the United States Court of Appeals for
the Tenth Circuit agreed with the federal district court’s finding that the defendant’s
right to due process was violated by the state trial court’s failure to conduct an in
camera review of certain DHS records related to the child sexual assault victim. 985
F.2d at 488–89. The court, therefore, declined to disturb the district court’s decision to
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hold in abeyance the habeas corpus petition until the state trial court conducted an in
camera review of the DHS records. Id. As the court explained, the state trial court had
yet to determine whether the records contained information that probably would have
changed the outcome of the defendant’s trial. Id. at 491. Thus, neither the appellate
court nor the federal district court in Exline assessed whether the nondisclosure of
documents affected the outcome of the trial or was harmless beyond a reasonable
doubt; rather, that determination was left to the state trial court in the first instance on
remand.
¶10 Six years after Kyle was decided, a different division of the court of appeals
addressed a similar issue in People in Interest of A.D.T., 232 P.3d 313 (Colo. App. 2010).
In A.D.T., A.D.T. appealed her adjudications for acts which, if committed by an adult,
would have constituted unlawful sexual contact and harassment. Id. at 315. The
division concluded that the juvenile court erred in failing to review in camera eight of
the nine DHS files of the victim, as well as by failing to disclose certain documents from
the file it did review. Id. The question remained, however, as to “whether the failure to
disclose such documents previously entitle[d] A.D.T. to a new trial.” Id. at 320. The
division concluded that the juvenile court had to consider the issue first on remand:
[B]ecause A.D.T. bears the burden of establishing prejudice, see [People v.
Jowell, 199 P.3d 38, 47 (Colo. App. 2008)], the court shall disclose the
pertinent documents to the parties and give A.D.T. an opportunity to
demonstrate a reasonable probability that, had these records been
disclosed to her, the result of the proceeding would have been different.
See People v. Hustead, 74 Cal. App. 4th 410, 87 Cal. Rptr. 2d 875, 884–85
(1999) (adopting such a procedure on similar facts, and holding, “On
remand, the appellant will have an opportunity to determine if he would
have been able to present any additional evidence at trial as a result of any
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discoverable information.”); see also United States v. McGowan, 423 F.2d
413, 418–19 (4th Cir. 1970) (in a case involving grand jury minutes, the
court opined that once it had determined that certain of those minutes
should have been disclosed to the defense, the appropriate procedure was
for defense counsel to review those minutes to determine what in them
was “useful”); Commonwealth v. French, 531 Pa. 42, 611 A.2d 175, 179–80
(1992) (the question of prejudice resulting from the trial court’s erroneous
failure to order the production of certain witness statements to the
defendant should not be determined without first permitting defense
counsel to view the statements in question with the eye of an advocate
and to argue to the trial court their impeachment value).
Id. at 318.
¶11 We agree with the division’s approach in A.D.T. and adopt it now. It is the
defendant’s burden to show prejudice as a result of a trial court’s erroneous
nondisclosure, and an appellate court cannot review the improperly withheld
documents with an advocate’s eye. As the Pennsylvania Supreme Court recognized in
French, “[m]atters contained in a witness’s statement may appear innocuous to some,
but have great significance to counsel viewing the statements from the perspective of an
advocate for the accused about to cross-examine a witness.” 611 A.2d at 179 (quoting
Commonwealth v. Grayson, 353 A.2d 428, 429 (Pa. 1976)). This is particularly so where,
as here, the case turns on the witnesses’ credibility and the undisclosed information
relates directly to the credibility of the prosecution’s primary witness. Of course,
defense counsel is also in the most suitable position to evaluate whether additional
evidence may have been discovered before trial as a result of the undisclosed
information. Hustead, 87 Cal. Rprt. 2d at 884–85.
¶12 Thus, we hold that when an appellate court determines that the trial court erred
in failing to disclose certain documents from a file reviewed in camera, the proper
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remedy is to remand the case to the trial court with instructions to provide the
documents to the parties and to afford the defendant an opportunity to demonstrate a
reasonable probability that, had the documents been disclosed before trial, the result of
the proceeding would have been different. On remand, the trial court, in its discretion,
should determine the manner in which to allow the defendant to attempt to make the
requisite showing of prejudicial error. A.D.T., 232 P.3d at 318, 320. If the trial court
concludes there is a reasonable probability that the result of the trial would have been
different, then it must grant the defendant a new trial. Id. at 321. On the other hand, if
the trial court finds no such reasonable probability exists, then it may leave in place its
judgment of conviction, subject to the defendant’s right to appeal. Id.
¶13 Because the division here failed to remand the case to the district court consistent
with the holding in A.D.T. and, instead, assessed whether the nondisclosure of the
August 2010 documents affected the outcome of the proceeding, we reverse its
judgment. We disapprove the holding in Kyle to the extent it is inconsistent with this
opinion.
B. Zoll’s Absence as 911 Recording Was Replayed During
Deliberations
¶14 Zoll next claims that the court of appeals erred in determining that replaying the
911 recording in the courtroom during deliberations was not a critical stage of the
proceeding that required his presence. We conclude that, even if Zoll is correct, any
error by the trial court in accepting the purported waiver of his appearance was
harmless beyond a reasonable doubt.
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1. Standard of Review
¶15 “Whether a trial court violated a defendant’s right to be present is a
constitutional question that is reviewed de novo.” People v. Guzman-Rincon, 2015
COA 166M, ¶ 29, 369 P.3d 752, 758; see also People v. Bergerud, 223 P.3d 686, 693 (Colo.
2010) (de novo standard applies to review of a waiver of a constitutional right). The
effectiveness of a waiver of the right to be present is likewise reviewed de novo. People
v. Price, 240 P.3d 557, 560 (Colo. App. 2010).
¶16 We have clarified that if a constitutional trial error was not preserved, the claim
is subject to plain error analysis, not harmless error analysis. People v. Miller, 113 P.3d
743, 749–50 (Colo. 2005). In Miller, we explained “that constitutional harmless error
analysis is reserved for those cases in which the defendant preserved his claim for
review by raising a contemporaneous objection.” Id. at 749. Thus, only where an error
in the denial of a defendant’s right to be present was preserved through a
contemporaneous objection will we review for constitutional harmless error. People v.
Payne, 2014 COA 81, ¶ 7, 361 P.3d 1040, 1042.
¶17 The People urge us to apply plain error analysis, arguing that the trial court’s
alleged error was not preserved because no contemporaneous objection was lodged
when the 911 recording was replayed outside Zoll’s presence. As the People note, not
only was there no objection, defense counsel specifically informed the trial court that he
waived his client’s appearance for the publication of the 911 recording during
deliberations. However, we reject the People’s position and apply harmless error
analysis because Zoll did not have an opportunity to contemporaneously object to the
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publication of the 911 recording during deliberations or to his counsel’s purported
waiver, as was Zoll’s right. See People v. Curtis, 681 P.2d 504, 511 (Colo. 1984); People
v. Wingfield, 2014 COA 173, ¶ 19, 411 P.3d 869, 873; Crim. P. 51 (“[I]f a party has no
opportunity to object to a ruling or order, the absence of an objection does not thereafter
prejudice him.”). Zoll was not in the courtroom when the trial court decided, and both
counsel agreed, to replay the 911 recording for the jury. Nor was he in the courtroom
when his counsel’s purported waiver occurred.
¶18 Unlike the plain error standard, which holds that the error must have been “so
clear-cut [and] so obvious” that the trial judge should have been able “to avoid it
without the benefit of objection,” People v. Pollard, 2013 COA 31M, ¶ 39, 307 P.3d 1124,
1133, under harmless error analysis, we evaluate whether the trial court’s error “was
harmless beyond a reasonable doubt,” Luu v. People, 841 P.2d 271, 275 (Colo. 1992)
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). More than fifty years ago, the
United States Supreme Court “recognized that most constitutional errors can be
harmless.” Id. at 273 (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).
Harmless error review analyzes the basis on which “the jury actually rested its verdict.”
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (quoting Yates v. Evatt, 500 U.S. 391, 404
(1991)). The inquiry “is not what effect the constitutional error might generally be
expected to have upon a reasonable jury, but rather what effect it had upon the guilty
verdict in the case at hand.” Id. Stated differently, the question “is not whether, in a
trial that occurred without the error, a guilty verdict would surely have been rendered,
but whether the guilty verdict actually rendered in this trial was surely unattributable
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to the error.” Id. For an error to be constitutionally harmless, the reviewing court
“must be confident beyond a reasonable doubt that the error did not contribute to the
guilty verdict.” Bernal v. People, 44 P.3d 184, 200 (Colo. 2002). If a review of the entire
record demonstrates “a reasonable possibility that the error might have contributed to
the conviction,” the error cannot be harmless and we must reverse. Hagos v. People,
2012 CO 63, ¶ 11, 288 P.3d 116, 119 (quotation, alteration, and emphasis omitted).
2. Relevant Law
¶19 Both the United States Constitution and the Colorado Constitution “guarantee
the right of a criminal defendant to be present at all critical stages of the prosecution.”
People v. White, 870 P.2d 424, 458 (Colo. 1994). “The constitutional right to presence is
rooted to a large extent in the Confrontation Clause of the Sixth Amendment, . . . but . . .
[that] right is protected by the Due Process Clause in some situations where the
defendant is not actually confronting witnesses or evidence against him.” United States
v. Gagnon, 470 U.S. 522, 526 (1985).
¶20 Whether grounded in the Sixth Amendment or the Fourteenth Amendment, the
right to presence “is not absolute.” Luu, 841 P.2d at 273. A defendant has the right to
be present “whenever his presence has a relation, reasonably substantial, to the fullness
of his opportunity to defend against the charge.” Kentucky v. Stincer, 482 U.S. 730, 745
(1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06 (1934)). In other words,
the defendant’s presence is only required “to the extent that a fair and just hearing
would be thwarted by his absence.” Id. (quoting Snyder, 291 U.S. at 108).
Consequently, the right to be present is not constitutionally guaranteed when the
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defendant’s presence would be useless or when the benefit of the defendant’s presence
would be “but a shadow.” Id. (quoting Snyder, 291 U.S. at 106–07).
¶21 A defendant may waive the right to be present at critical stages of criminal
proceedings. Wingfield, ¶ 19, 411 P.3d at 873. But defense counsel cannot waive this
right on the defendant’s behalf. Id. (citing Curtis, 681 P.2d at 511).
3. Application
¶22 Even if the trial court erred in replaying the 911 recording during deliberations in
Zoll’s absence, we are satisfied that any error was harmless beyond a reasonable doubt.
For multiple reasons, we conclude that there is no reasonable possibility that Zoll’s
absence might have contributed to his convictions.
¶23 First, only a small portion of the 911 recording was played during deliberations.
The record reflects that what was replayed for the jury was approximately three
minutes in duration.
¶24 Second, the portion of the 911 recording published during deliberations had been
played for the jury already in Zoll’s presence without objection. Hence, during Zoll’s
absence, the jury simply heard a second time the recording it had previously heard in
his presence.
¶25 Third, Zoll’s counsel was present as the 911 recording was replayed. Thus, while
Zoll was not in attendance, his representative was in the courtroom.
¶26 Fourth, the 911 recording was replayed under the watchful eye of the trial judge,
and there is no allegation that counsel, the jury, or anyone else engaged in improper
conduct as the recording was replayed. Nor is there any indication that an irregularity
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took place while the 911 recording was replayed, or that the 911 recording was tainted
or vulnerable to manipulation.
¶27 Finally, the part of the trial during which the 911 recording was replayed did not
include any dialogue, much less a substantive discussion, between the judge and the
parties. There was no need for the trial court to consult with Zoll about any issue or for
Zoll to provide feedback to his counsel about any matter. Indeed, Zoll’s own counsel
did not believe Zoll’s appearance was necessary. It was defense counsel who,
unprompted, advised the trial court that he waived Zoll’s appearance for the
publication of the 911 recording during deliberations. In so doing, counsel admitted
that Zoll’s appearance was not needed because “[a]ll we’re going to do is play the tape”
and “Zoll’s heard the tape once” already during the trial. Zoll’s counsel then aptly
acknowledged that “a lot of times the jury will listen” to admitted recordings during
deliberations “without any of the parties present.”
¶28 Zoll nevertheless contends that reversal is required because of the negative
psychological impact his absence may have had on the jury. More specifically, Zoll
asserts that the jury may have become biased or prejudiced against him because it may
have inferred from his absence that he did not take the case seriously. We are
unpersuaded by Zoll’s speculation.
¶29 Significantly, although the jury found Zoll guilty of multiple charges, it acquitted
him of the charge of attempting to disarm a peace officer. If, as Zoll surmises, the jury
had such a negative reaction to his absence that its verdicts were influenced by bias or
prejudice, it presumably would have found him guilty of all the charges. That the jury
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found him not guilty of one charge and guilty of the remaining charges suggests that it
did not disregard the trial court’s instructions, including the instruction to make
decisions “by applying the rules of law” provided “to the evidence presented at trial”
without being influenced by “sympathy” or “prejudice.” See People v. McKeel, 246
P.3d 638, 641 (Colo. 2010) (“We presume that jurors follow the instructions that they
receive.”); People v. Ibarra, 849 P.2d 33, 39 (Colo. 1993) (When the defendant fails to
present “evidence of jury bias,” we presume “that the jury understood and heeded the
trial court’s instructions.”). Nor is there any basis to believe that all twelve jurors were
so significantly impacted by Zoll’s absence that they violated the oath they took at the
beginning of the trial to “well and truly try the case” and to “render a true verdict
according to the evidence.”
¶30 On the record before us, we are confident beyond a reasonable doubt that Zoll’s
absence in no way contributed to the guilty verdicts. Therefore, we conclude that any
error by the trial court was harmless.
¶31 We feel compelled to emphasize that the better practice would have been for the
trial court to wait until Zoll was brought into the courtroom. Even when defense
counsel offers to waive the defendant’s appearance from what may seem like a
noncritical stage of the proceeding, the most prudent and sound course of action is for
the trial court to wait until the defendant is present. We sympathize with the trial
courts because we are keenly aware of the burdensome dockets and severe time
demands they face. But, as the old adage goes, “haste makes waste.”
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III. Conclusion
¶32 We hold that the court of appeals erred in assessing whether the nondisclosure of
certain documents from Deputy Mitchell’s personnel file affected the outcome of the
trial. Instead, the court of appeals should have remanded the case to the district court
with directions to provide the parties the improperly withheld documents and to afford
Zoll an opportunity to demonstrate that there is a reasonable probability that, had he
received the documents before trial, the outcome of the proceeding would have been
different. We further hold that, even if the court of appeals erred in determining that
replaying the 911 recording during deliberations was not a critical stage of the
proceeding that required Zoll’s presence, any error in failing to secure Zoll’s attendance
was harmless beyond a reasonable doubt. Therefore, we reverse in part, affirm in part
on different grounds, and remand to the court of appeals with instructions to return the
case to the district court for further proceedings consistent with this opinion.
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