County District Court No. 12CR1224 Honorable Marilyn Leonard
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Joseph
Paul Hough, Deputy State Public Defender, Denver, Colorado,
1 Defendant, Nicholas Javier Zapata, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
attempted second degree murder and first degree assault. We
2 Defendant's ex-girlfriend told him that she had been
sexually harassed by the owner of the convenience store where
she worked in Littleton. She also told defendant that the
store owner had touched her crotch, buttocks, and breasts.
However, she did not tell defendant everything that had
happened because she "was worried about any actions that
[defendant] would take." Nevertheless, defendant was
"mad" and "upset" about what she had told
3 One evening, defendant sent her text messages telling her,
"Don't be there." Approximately thirty minutes
later, defendant and Jose Murillo walked into the convenience
store. Defendant and Mr. Murillo had known each other for six
months. The evidence indicated that defendant and Mr. Murillo
had taken the light rail together from downtown Denver to
Littleton, and then they walked together from the light rail
station to the convenience store.
4 Mr. Murillo quickly walked behind the counter and stabbed
the store owner's son with a knife. The prosecution's
theory was that defendant and Mr. Murillo mistakenly believed
that the person behind the counter was the store owner who
had sexually harassed and assaulted defendant's
5 A struggle ensued between Mr. Murillo and the store
owner's son. Defendant, who was the only other person in
the store, watched the struggle from the other side of the
counter. On the high-quality surveillance video, someone can
be heard saying, "Get him, get him, get him good."
When the store owner's son began hitting Mr. Murillo in
the head with a hammer, Mr. Murillo said, "[H]elp
me." Defendant quickly left the store and fled. Mr.
Murillo suffered permanent brain damage from the fight.
6 The People charged defendant with conspiracy to commit
first degree murder, attempted first degree murder, and first
degree assault. The People charged Mr. Murillo in a separate
7 Mr. Murillo pleaded guilty in his case and testified at
defendant's trial. He testified that because of his brain
damage, he did not remember the convenience store attack. But
he also testified that he had known defendant for six months
before the attack; the convenience store surveillance video
showed him and defendant; they were not there to rob the
store; and he was testifying because defendant had left him
at the store to die.
8 The defense theory at trial, and what defendant told
detectives during pretrial interviews, was that defendant
went to the convenience store hoping to see his
ex-girlfriend, and that he did not know that Mr. Murillo was
going to attack the person behind the counter. The defense
also emphasized that Mr. Murillo regularly used heroin at
9 The jury found defendant guilty of attempted second degree
murder and first degree assault.
10 On appeal, defendant contends that the district court
erred by (1) not requiring the prosecution to disclose
statements Mr. Murillo allegedly made during competency
evaluations in his separate case; and (2) admitting evidence,
as res gestae, of defendant's prior controlling and
threatening behavior toward his ex-girlfriend, her new
boyfriend, and her mother.
11 We first address defendant's contention that the
district court erred by not requiring the prosecution to
disclose statements Mr. Murillo allegedly made during
competency evaluations in his separate case. Defendant
alternatively argues that the district court erred by failing
to review the competency evaluations in camera before making
12 In the case against Mr. Murillo, Mr. Murillo's counsel
raised the issue of Mr. Murillo's competency, and ...