In Re People v. Kilgore

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ADVANCE SHEET HEADNOTE
January 13, 2020
2020 CO 6
No. 19SA191, In Re People v. Kilgore—Criminal Law—Discretion in Ordering
Disclosure.
In this original proceeding, the supreme court considers whether the district
court was authorized to order the defendant to disclose his exhibits before trial.
The court concludes that it was not. Because the district court’s order finds no
support in Crim. P. 16 and arguably infringes on the defendant’s constitutional
rights, the court makes the rule absolute.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 6
Supreme Court Case No. 19SA191
Original Proceeding Pursuant to C.A.R. 21
La Plata County District Court Case No. 18CR644
Honorable Suzanne Fairchild Carlson, Judge
________________________________________________________________________
In Re
Plaintiff:
The People of the State of Colorado,
v.
Defendant:
Joshua Edward Kilgore.
________________________________________________________________________
Rule Made Absolute
en banc
January 13, 2020
________________________________________________________________________
Attorneys for Plaintiff:
Philip J. Weiser, Attorney General
Emily B. Buckley, Assistant Attorney General
Denver, Colorado
Attorneys for Defendant:
Megan A. Ring, Public Defender
Anne Kathryn Woods, Deputy Public Defender
Durango, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 District courts enjoy ample discretion in managing cases before trial, but
that discretion is not unfettered. In criminal cases, a district court may not rely on
its case-management discretion to order disclosures that exceed the discovery
authorized by Rule 16 of the Colorado Rules of Criminal Procedure. Nor may a
court require disclosures that infringe on an accused’s constitutional rights.
¶2 The district court in this case sua sponte ordered the parties to exchange
exhibits thirty days before trial. The defendant, Joshua Edward Kilgore, protested,
but the district court overruled his objection. Kilgore then filed a C.A.R. 21
petition, and we issued a rule to show cause. Because the district court’s order
finds no support in Rule 16 and arguably infringes on Kilgore’s constitutional
rights, we make the rule absolute.
I. Procedural History
¶3 The prosecution has charged Kilgore with two counts of felony sexual
assault. At arraignment, Kilgore pled not guilty to the charges, and the district
court scheduled the matter for a jury trial.
¶4 In the minute order it issued following the arraignment, the court indicated,
among other things, that “exhibits [were] to be exchanged 30 days before trial”
(“disclosure requirement” or “disclosure order”). The disclosure requirement was
not prompted by a party’s request and appears to have been part of the court’s
standard case-management practice. A couple of months later, Kilgore filed an
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objection, arguing that the disclosure requirement violated his attorney’s
confidentiality obligations, the attorney-client privilege, the attorney work-
product doctrine, and his due process rights (including his right to make the
prosecution meet its burden of proof, his right to a fair trial, and his right to the
effective assistance of counsel). Further, noted Kilgore, Rule 16 neither requires
him to disclose, nor entitles the prosecution to receive, his exhibits before trial.
¶5 Although acknowledging the difficulty of ruling in a vacuum, the court
ultimately overruled Kilgore’s objection. The court reasoned that requiring
Kilgore to disclose his exhibits prior to trial would “foster[] efficiency and allow[]
for a fair trial” without running afoul of his rights. Any exhibits not disclosed
before trial, warned the court, would “not be used at trial.”
¶6 Kilgore sought reconsideration of this ruling, but the court declined to alter
it. Thereafter, Kilgore submitted a sealed motion detailing the specific reasons he
opposed disclosing a particular exhibit.1 Despite having this additional
information, though, the court stood by its earlier ruling. It reiterated that
“[t]rading trial exhibits such as the one discussed” in the sealed motion would
1 Without objection, Kilgore included this motion under seal in this original
proceeding.
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“promote[] efficiency at trial.” The court reminded Kilgore that failure to comply
with its disclosure order would result in the exclusion of all his exhibits.
¶7 Kilgore then sought our intervention pursuant to C.A.R. 21, and we issued
a rule to show cause.
II. Jurisdiction
¶8 Whether to exercise our original jurisdiction under C.A.R. 21 is a question
solely within our discretion. People v. Tafoya, 2019 CO 13, ¶ 13, 434 P.3d 1193, 1195.
However, our jurisprudence reflects that relief under C.A.R. 21 is “an
extraordinary remedy that is limited in both purpose and availability.” People in
Interest of T.T., 2019 CO 54, ¶ 16, 442 P.3d 851, 855–56 (quoting Villas at Highland
Park Homeowners Ass’n v. Villas at Highland Park, LLC, 2017 CO 53, ¶ 22, 394 P.3d
1144, 1151). In the past, we have exercised our jurisdiction when an appellate
remedy would be inadequate, Fognani v. Young, 115 P.3d 1268, 1271 (Colo. 2005),
when a party may otherwise suffer irreparable harm, People v. Turner, 109 P.3d 639,
641 (Colo. 2005), and when a petition raises “issues of significant public
importance that we have not yet considered,” Wesp v. Everson, 33 P.3d 191, 194
(Colo. 2001).
¶9 In invoking our original jurisdiction, Kilgore contends that a Rule 21
proceeding is the only adequate appellate remedy, that he will otherwise suffer
4
irreparable harm, and that his petition raises an issue of first impression that is of
significant public importance. We agree.
¶10 First, there is no other adequate remedy because we deal here with a pretrial
ruling that may significantly impact Kilgore’s ability to litigate the case on the
merits and is not curable on direct appeal. More specifically, the disclosure order
compels Kilgore to share with the prosecution some exculpatory evidence and his
trial strategy. As such, any resulting detriment to Kilgore cannot be reversed on
direct appeal. In Schultz v. GEICO Casualty Co., we explained that when a
discovery ruling “may significantly affect a party’s ability to litigate the merits of
a case and may cause damage . . . that cannot be cured” on direct appeal, “it is
appropriate to challenge” it “by way of an original proceeding.” 2018 CO 87, ¶ 12,
429 P.3d 844, 846–47 (quoting Belle Bonfils Mem’l Blood Ctr. v. Dist. Court, 763 P.2d
1003, 1013 (Colo. 1988)).
¶11 Second, though we ordinarily decline to exercise our original jurisdiction to
review discovery orders, we have recognized that such an order can cause
irreparable harm. See Ortega v. Colo. Permanente Med. Grp., P.C., 265 P.3d 444, 447
(Colo. 2011). An immediate review is appropriate where, as here, “the damage
that could result from disclosure would occur regardless of the ultimate outcome
of an appeal from a final judgment.” Id. As mentioned, the disclosure order forces
Kilgore to reveal to the prosecution some exculpatory evidence and his trial
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strategy. And once that happens, any prejudice to Kilgore cannot be undone. As
the old adage goes, “you can’t unring a bell.”
¶12 Finally, Kilgore correctly points out that we have never addressed whether
a district court is vested with authority to order the disclosure of an accused’s
exhibits before trial. Moreover, given the constitutional rights potentially at play,
the number of jury trials held every month throughout our state, and the
prevalence of standard case-management orders, we view this as an issue of
significant public importance that is likely to recur. Hence, we feel compelled to
provide guidance.
III. Standard of Review
¶13 Appellate courts typically review a trial court’s discovery order in a criminal
case for abuse of discretion. People in Interest of E.G., 2016 CO 19, ¶ 6, 368 P.3d 946,
948. But the specific discovery-related question we confront in this original
proceeding is a legal one: Did the district court have authority to order Kilgore to
disclose his exhibits before trial? Therefore, our review is de novo. People v.
Chavez-Torres, 2019 CO 59, ¶ 11, 442 P.3d 843, 847.
IV. Analysis
¶14 Kilgore argues that the district court had no authority to compel him to
disclose his exhibits before trial. He also asserts that the disclosure requirement
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infringes on his constitutional right to due process because it deprives him of his
right to have the prosecution meet its burden of proof.2
¶15 “The right of discovery in criminal cases is not recognized at common law.”
E.G., ¶ 11, 368 P.3d at 949 (quoting Walker v. People, 248 P.2d 287, 302 (Colo. 1952)).
But in the twentieth century, there were many changes to the common law related
to pretrial disclosure in criminal cases. Id. Perhaps none was greater than the
Supreme Court’s decision in the landmark case of Brady v. Maryland, 373 U.S. 83
(1963), which gave birth to a defendant’s constitutional right to the discovery of
exculpatory information in the prosecution’s possession. E.G., ¶ 11, 368 P.3d at
949. Following Brady’s lead, legislatures and state courts enacted statutes and
rules expanding “criminal discovery rights.” Id. Despite this development, or
perhaps because of it, “Colorado remains one of the few states that has never
deviated from the traditional doctrine holding that courts lack power to grant
discovery outside of those statutes or rules.” Id. at ¶ 12, 368 P.3d at 949. Thus,
under Colorado law, district courts have “no freestanding authority to grant
2Before us, Kilgore does not renew his claims that the disclosure order violated
his attorney’s confidentiality obligations, the attorney-client privilege, and the
attorney work-product doctrine. We limit our discussion accordingly.
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criminal discovery beyond what is authorized by the Constitution, the rules, or by
statute.” Id. at ¶ 13, 368 P.3d at 950.
¶16 This case does not implicate discovery authorized by the Colorado
Constitution or any of our statutes. Our focus is solely on the Colorado Rules of
Criminal Procedure in general and Rule 16 specifically. After all, Rule 16,
“Discovery and Procedure Before Trial,” controls discovery in criminal cases.3
Our task, then, is to scrutinize Rule 16 to determine whether the district court was
authorized to order Kilgore to disclose his exhibits before trial.
¶17 Part (I) of Rule 16 sets forth disclosures by the prosecution to the defendant;
Part (II) of Rule 16 addresses disclosures by the defendant to the prosecution. In
this case, we are concerned only with Part (II), which is divided into four sections.
We explore each section in turn.
¶18 Subject to constitutional limitations, section (a) permits the prosecution to
request and the court to require that the defendant provide nontestimonial
identification evidence.
3 The prosecution maintains that Rule 16 does not apply here because the
disclosure requirement covers “trial exhibits” that will be presented to the jury,
not “pretrial discovery.” This is a distinction without a difference. Information
provided in pretrial discovery is often presented to the jury. Indeed, a paramount
reason for pretrial discovery is to avoid surprises at trial.
8
¶19 Section (b) covers medical and scientific reports. Subject to constitutional
limitations, it grants the court authority to order the defendant to provide the
prosecution discovery related to reports or statements of expert witnesses made in
connection with the particular case and, where justified by the interests of justice,
to disclose additional information related to such discovery.
¶20 Unlike sections (a) and (b), section (c) is self-executing; it imposes certain
automatic obligations on the defendant in every criminal case without the need of
a request from the prosecution or an order from the court. Subject to constitutional
limitations, under section (c), “Nature of Defense,” the defendant “shall disclose
to the prosecution the nature of any defense, other than alibi.” Crim. P. 16(II)(c).
Additionally, pursuant to section (c), the defendant “shall . . . disclose the names
and addresses of persons whom the defense intends to call as witnesses at trial.”
Id.
¶21 Section (d) is also self-executing, but it is limited in scope. It requires certain
disclosures when the defendant endorses the defense of alibi, a defense not
relevant in this case.
¶22 Thus, while Rule 16(II) requires Kilgore to make certain pretrial disclosures
to the prosecution, it does not mention trial exhibits. But does the conspicuous
omission of trial exhibits from Rule 16(II) mean that the district court lacked
authority to require Kilgore to disclose his trial exhibits?
9
¶23 Our decisions in Richardson v. District Court, 632 P.2d 595 (Colo. 1981), and
E.G. are instructive. In Richardson, the district court granted the prosecution’s
motion for discovery of Richardson’s non-expert witnesses’ statements. 632 P.2d
at 596. Setting aside the district court’s order, we observed that Rule 16(II)(c) “was
carefully drafted” and “makes no mention of defense witnesses’ statements.” Id.
at 599. We explained that this omission, “far from being an oversight,” reflects a
deliberate determination “to prevent the impairment of constitutional rights that
arguably could result from a rule permitting the court to enlarge the categories of
prosecutorial discovery on the basis of an ad hoc evaluation of each case.” Id.
Therefore, we concluded that “the trial court’s authority to grant
discovery . . . must be limited to the categories expressly set forth in the rule.” Id.
¶24 Consistent with Richardson, in E.G. we held that the trial court erred in
granting E.G.’s discovery motion for access to a home because “nothing in
Crim. P. 16(I)(a)–(c) grants the trial court authority to order access to a private
home that is not subject to the court’s jurisdiction” or in the government’s
possession. ¶ 15, 368 P.3d at 950. We recognized that a different provision in the
rule, Crim. P. 16(I)(d)(1), gives the court discretion to grant a reasonable request
by the defense for disclosure of relevant material and information not covered by
sections (a), (b), or (c) in Part (I). Id. at ¶ 16, 368 P.3d at 950. But we reasoned that
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this provision did not empower the court to require the disclosure at issue because
a court cannot require disclosure of something over which it has no authority. Id.
¶25 Applying Richardson and E.G., we hold that the district court was devoid of
authority to require Kilgore to disclose his exhibits to the prosecution before trial
because nothing in Rule 16(II) permitted the court to do so. Therefore, the court
erred in ordering the parties to exchange exhibits thirty days prior to trial.4
¶26 We are not persuaded otherwise by the prosecution’s reliance on the district
court’s inherent discretion to manage cases and to ensure the judicial process
functions efficiently. Such discretion cannot expand the contours of Rule 16(II).
Nor do we agree with the prosecution that Rule 16(II)’s silence regarding exhibits
means that the district court was free to impose the disclosure requirement. The
prosecution actually has it backwards. It posits that a district court has authority
4 The prosecution’s reliance on Rules 16(III)(d) and 16(IV)(e) is misplaced. Both
provisions are inapposite: the former because it addresses protective orders
related to discovery already authorized by other provisions in Rule 16, see
Crim. P. 16(III)(d); the latter because there is neither a basis to believe the trial in
this case is “likely to be protracted or otherwise unusually complicated” nor a
“request by agreement of the parties,” Crim. P. 16(IV)(e). Even if Rule 16(IV)(e)
were pertinent here, it would be of no assistance to the prosecution. That
provision simply allows the court to hold pretrial conferences “to consider,”
among other things, issues related to “[m]arking . . . documents and other
exhibits” for identification; “[e]xcerpting or highlighting exhibits”; and “[w]aivers
of foundation as to such documents.” Id. It does not permit an order requiring
disclosure of the defendant’s exhibits before trial.
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to order any discovery that is not specifically prohibited by Rule 16. But Rule 16
is not a rule of prohibition. It delineates what discovery is required or permitted,
not what discovery is prohibited. As Richardson and E.G. make clear, a district
court has authority to order only discovery that is specifically authorized by Rule
16. See E.G., ¶ 16, 368 P.3d at 950–51; Richardson, 632 P.2d at 599. Thus, an omission
from Rule 16 signifies something a district court lacks authority to order, not
something it has authority to order.
¶27 The disclosure order is concerning for an additional reason—it arguably
infringes on Kilgore’s constitutional rights. The district court, at a minimum,
potentially infringed on Kilgore’s right to due process because his compliance with
the disclosure order may help the prosecution meet its burden of proof.
¶28 “Our Anglo-American system of criminal jurisprudence has as a nucleus the
requirement that the prosecution in a criminal case must establish the guilt of the
accused by proof beyond a reasonable doubt.” People v. Hill, 512 P.2d 257, 258
(Colo. 1973). This tenet is now “so universally accepted and applied” that it has
become an organic component “of our understanding of the term ‘due process of
law.’” Id. (quoting People v. Dist. Court, 439 P.2d 741, 743 (Colo. 1968)).
¶29 The disclosure order compels Kilgore to reveal exculpatory evidence and to
tip his hand vis-à-vis his investigation and the theory of his defense. In effect, it
forces Kilgore to share with the prosecution his trial strategy
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—i.e., how he plans to defend against the charges brought against him. This is
problematic. Gaining access to Kilgore’s exhibits prior to trial may help the
prosecution meet its burden of proof. Put differently, the disclosure requirement
rests on shaky constitutional ground because it improperly risks lessening the
prosecution’s burden of proof.5
¶30 Of course, it hardly bears stating that today’s decision should not be
understood as sanctioning “[t]rial by ambush, or the old fox-and-hounds approach
to litigation,” which we’ve repeatedly condemned as “not promot[ing] accuracy
or efficiency in the search for truth.” People v. Small, 631 P.2d 148, 158 (Colo. 1981)
(quoting People v. Dist. Court, 531 P.2d 626, 628 (Colo. 1975)). Discovery in criminal
cases “is not a one-way street” that runs in the direction of the defendant. Id. For
that reason, Part (II), an entire part of Rule 16, is devoted to disclosures by the
defendant to the prosecution.6 In our view, the provisions in Rule 16(II)
5Kilgore also argues that the disclosure requirement affects his right to a fair trial,
his right to present a defense, and his right to the effective assistance of counsel.
We do not address these claims because they hinge on the anticipated exclusion of
all his exhibits in the event he fails to comply with the disclosure requirement.
6In compliance with Part (II) of Rule 16, Kilgore has shared with the prosecution
the names and addresses of the witnesses he intends to call at trial. The
prosecution is free to interview all of these endorsed witnesses with an eye toward
discerning what exhibits Kilgore intends to introduce at trial.
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adequately ensure that the prosecution is not ambushed at trial without infringing
on a defendant’s constitutional rights.
V. Conclusion
¶31 For the foregoing reasons, we conclude that the district court erred in
ordering Kilgore to disclose his exhibits before trial. Therefore, we make the rule
to show cause absolute.
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