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People v. Zapata

Court of Appeals of Colorado, Third Division

May 19, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Nicholas Javier Zapata, Defendant-Appellant.

         Arapahoe County District Court No. 12CR1224 Honorable Marilyn Leonard Antrim, Judge

          Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          J. JONES JUDGE

         ¶ 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 affirm.

         I. Background

         ¶ 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 him.

         ¶ 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 ex-girlfriend.

         ¶ 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 case.

         ¶ 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 that time.

         ¶ 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.

         II. Competency Report

         ¶ 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 its decision.

         A. Further Background

         ¶ 12 In the case against Mr. Murillo, Mr. Murillo's counsel raised the issue of Mr. Murillo's competency, and ...


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