Zoll v. People

          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 Zoll appealed, and a division of the court of appeals affirmed his convictions in a unanimous, unpublished opinion.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 ...