Matthew J. Zoll, Petitioner
v.
The People of the State of Colorado. Respondent
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 11CA2316
Attorneys for Petitioner: Megan Ring, Public Defender Tracy
C. Renner, Deputy Public Defender Denver, Colorado.
Attorneys for Respondent: Cynthia H. Coffman, Attorney
General Melissa D. Allen, Senior Assistant Attorney General
Denver, Colorado.
OPINION
SAMOUR
JUSTICE.
¶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appeals affirmed his convictions in a unanimous, unpublished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 recording[1] 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. 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 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 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 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 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 ...