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Zapata v. People

Supreme Court of Colorado, En Banc

October 15, 2018

Nicholas Javier Zapata, Petitioner
v.
The People of the State of Colorado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA2155

          Attorneys for Petitioner: Megan Ring, Public Defender Joseph P. Hough, Deputy Public Defender Denver, Colorado.

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Gabriel P. Olivares, Assistant Attorney General Denver, Colorado.

          OPINION

          HOOD JUSTICE.

         ¶1 One afternoon several years ago, the petitioner, Nicholas Zapata, and Jose Murillo entered a Littleton convenience store. Murillo darted behind the checkout counter, where he used a knife to attack the clerk, the only other person in the store. Zapata watched the attack from the other side of the counter. Perhaps to everyone's surprise, the victim quickly managed to subdue Murillo with a hammer that happened to be located behind the counter. With that unexpected turn of events, Zapata fled.

         ¶2 The People charged Zapata with attempted first degree murder and other crimes. At trial, the People asserted that Zapata orchestrated the attack. They painted a picture of a jealous and controlling Zapata, seeking revenge on behalf of his ex-girlfriend, S.M. S.M. worked in the convenience store and had confided in Zapata several weeks earlier that her boss, the store owner and father of the victim, had sexually harassed her. The People argued that Zapata convinced Murillo to do his dirty work in seeking revenge, but at the store, they confused the son for his father. The jury convicted Zapata of attempted second degree murder and first degree assault.

         ¶3 Zapata seeks a new trial because the trial court declined to give him access to, or to review in camera, certain competency reports regarding Murillo (who suffered brain damage as a result of the hammer blows). Zapata alleges the reports might contain exculpatory information about the criminal offenses of which he now stands convicted. He also argues that the trial court committed reversible error when it admitted "res gestae" evidence of Zapata's earlier threatening behavior toward S.M.

         ¶4 A division of the court of appeals affirmed Zapata's convictions, concluding as follows: Murillo's competency reports were privileged and no waiver justified disclosure in Zapata's case; Zapata failed to make a particularized showing that the reports contained exculpatory information; and any error in admitting the res gestae evidence was harmless. People v. Zapata, 2016 COA 75, ¶¶ 22-30, 39, ___ P.3d ___.

         ¶5 We hold that Murillo's competency reports are protected by the physician-patient or psychologist-client privilege and Murillo did not waive the privilege as to Zapata when he put his competency in dispute in his own case. We further conclude that Zapata did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court. Finally, we conclude that any error in the admission of res gestae evidence was harmless given the strong evidence of Zapata's guilt.

         ¶6 Thus, we affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶7 Before the assault in question, Zapata and Murillo boarded a light rail train in downtown Denver. Video surveillance footage shows the two stepping off the train seconds apart at the downtown Littleton station and walking side-by-side away from the station. About that time, Zapata texted S.M.: "Don[']t be there." He sent S.M. the same warning twice more in the next thirty minutes. S.M. responded to each message with confusion, asking what and where Zapata was talking about.

         ¶8 A short time after getting off the train, Zapata and Murillo entered Littleton Neighborhood Food and Gas. The victim, the son of the store owner, was there alone, working as a clerk. Murillo headed straight behind the counter and attacked the victim with a steak knife. The victim fought back first by yanking Murillo's shirt over his head, and then by grabbing a hammer from a nearby tool box and using it to repeatedly strike Murillo in the head.

         ¶9 Zapata stayed on the other side of the counter and watched. A videotape of the incident that was admitted into evidence reveals that some variation of the words, "Get him, get him, get him good" were muttered, although at trial, the parties disputed whether Zapata or Murillo said the words. As Murillo groaned, Zapata backed up, turned around, and walked out of the store. The victim eventually subdued his assailant, Murillo, by battering him into unconsciousness with the victim's improvised weapon.

         ¶10 The People charged Zapata and Murillo, separately, with attempted first degree murder and other crimes. The People's theory was that Zapata, upon learning that the store owner had sexually harassed S.M., sought revenge. According to the People's version of events, Zapata and Murillo mistook the victim for his father. Zapata countered that there was no shared plan; rather, "Murillo was a loose cannon," addicted to drugs.

         ¶11 In the proceedings against Murillo, Murillo's counsel questioned his competency to stand trial. The fight had left Murillo with brain damage. Murillo's competency was evaluated twice, once by court order and another time at his own request. The record does not reveal what type of mental health professional examined Murillo. Regardless, Murillo eventually withdrew his claim of incompetency and entered plea negotiations with the prosecution. Murillo agreed to plead guilty to the lesser charge of conspiracy to commit second degree murder; in exchange, he would testify against Zapata.

         ¶12 Zapata sought access to records of any statements regarding the attack made by Murillo during his competency evaluations. Zapata alleged there was potentially exculpatory material in the competency reports, contending that Murillo could have made inconsistent statements to the competency evaluators that would provide impeachment material. Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing "[w]aiver of privilege" as to competency evaluations), and Crim. P. 16.

         ¶13 Initially, the trial court ruled that Zapata was entitled to the reports. Murillo's counsel, however, objected on the grounds that the reports were privileged. At a hearing on the matter, the prosecution acknowledged that it had examined at least one of the competency reports during plea negotiations in Murillo's case, noting that there were "maybe two lines about the actual incident in this competency evaluation, and there is nothing in the competency evaluation that is not in the proffer that we've already discovered anyway."

         ¶14 Ultimately, the trial court denied Zapata's request for access to the competency reports, reasoning that they are privileged and the statute outlining who may receive information regarding a defendant's competency evaluation-the judge, defense counsel, and prosecution in the defendant's case-doesn't include a codefendant in a separate case. Zapata's attorney then requested that the court review the material in camera. The court denied that request as well.

         ¶15 The People also sought to introduce evidence that Zapata knew about the alleged sexual harassment of S.M. and evidence from a week before the convenience store incident when Zapata allegedly sent a series of harassing, threatening, and profanity-ridden texts to S.M. The People argued the evidence was res gestae because "[Zapata's] jealousy and desire to resume his relationship with [S.M.], coupled with [the sexual harassment], form a crucial part of the overall narrative of this case," and the evidence regarding how obsessive Zapata was about S.M. was relevant to "why he would choose to take such an extreme action against the store owner." Zapata protested, arguing that S.M. was expected to testify at trial about his connection to the store and that Zapata's actions weeks before the attack bore no relevance to the attack at the convenience store and were unduly prejudicial. The trial court admitted the evidence as res gestae, reasoning that the evidence was necessary to explain "why this particular store, this particular store clerk," and stating that otherwise, "we're starting in the middle of the story."

         ¶16 On the first day of trial, before jury selection, defense counsel objected to any testimony by S.M. regarding physical altercations between S.M. and Zapata that had occurred in the six months before the convenience store attack. The People argued that any such testimony would also be res gestae evidence. The trial court agreed, ruling to allow the testimony.

         ¶17 S.M. testified at trial that she had asked Zapata to help her fill out a complaint with the U.S. Equal Employment Opportunity Commission because of the store owner's alleged harassment. S.M. testified that she told Zapata that the store owner had made sexual overtures and touched her inappropriately. S.M. also testified that Zapata was controlling and wanted to know where she was at all times and that they would physically fight when she talked to other men. She testified that about a week before the attack, Zapata sent her a series of fifty or so text messages threatening her and her family when he learned she was seeing someone else. The threatening and explicit text messages were admitted into evidence at trial.

         ¶18 Murillo testified at trial that he had known Zapata for six months, had no memory of the attack, and had never been to Littleton or seen the victim or the store owner before the attack.

         ¶19 The jury convicted Zapata of attempted second degree murder (a lesser-included offense) and first degree assault, acquitting him of conspiracy to commit murder in the first degree. The court sentenced Zapata to twenty-one years in prison for each count, to run concurrently.

         ¶20 Zapata appealed. In relevant part, he contended that there are two sources of reversible error by the trial court: (1) the failure to provide the competency reports to him, or at least conduct an in camera review of the reports, and (2) the admission of res gestae evidence from the months leading up to the attack showing that Zapata was controlling, obsessive, and physically abusive toward S.M.

         ¶21 A division of the court of appeals affirmed Zapata's conviction. The division held that Murillo's competency reports were protected under the psychologist-client privilege and the privileged material was discoverable only in Murillo's case, not Zapata's. Zapata, ¶¶ 22-29. The court of appeals also concluded that Zapata had not made a "particularized showing that the statements Mr. Murillo allegedly made during the competency evaluations somehow exculpated [the] defendant, or were inconsistent with the information in Mr. Murillo's proffer." Id. at ¶ 30.

         ¶22 Without addressing whether it was error to admit the evidence of res gestae, the division also held that any error was harmless. Id. at ¶ 39. In reaching this conclusion the division reasoned that "the evidence supporting the prosecution's theory was compelling," and the evidence corroborating the defendant's theory was weak. Id. at ¶¶ 40-41.

         ¶23 Zapata petitioned this court for review of the same issues. We granted certiorari.[1]

         II. Standard of Review

         ¶24 The issues regarding the competency reports are issues of law, insomuch as they require us to interpret statutes governing privilege in the context of criminal discovery. We review issues of law de novo. People v. Rediger, 2018 CO 32, ¶ 18, 416 P.3d 893, 898 (statutory interpretation); People v. Kailey, 2014 CO 50, ¶ 12, 333 P.3d 89, 93 (interaction of psychologist-patient privilege with other statutes).

          ¶25 We review evidentiary rulings, such as the admission of res gestae evidence, for abuse of discretion. See People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial court abuses its discretion "when its ruling is manifestly arbitrary, unreasonable, or unfair." Id.

         III. Analysis

         ¶26 We begin by considering whether Zapata was entitled to examine, or to have the court examine, the competency reports regarding Murillo. We first conclude that competency reports, completed by either a psychiatrist or licensed psychologist per the competency statute, are protected by the physician-patient or psychologist-client privilege. Next, we discuss whether Murillo waived that privilege. Based on the language of the competency statute, we conclude that any statutory waiver was limited and does not extend to Zapata's case. We then address Zapata's constitutional and Crim. P. 16 arguments. After determining that Zapata's confrontation right is not implicated, we examine whether due process or Crim. P. 16 required the disclosure or in camera review of the reports. We conclude that Zapata did not make a sufficient showing that Murillo's reports contained material evidence.

         ¶27 Finally, we consider whether the trial court committed reversible error by admitting evidence of Zapata's controlling and threatening behavior toward S.M. as res gestae evidence. We conclude, after observing that there was strong evidence of Zapata's guilt, that any error in admitting the res gestae evidence was harmless.

         A. Competency Reports

         ¶28 First, Zapata asserts that Murillo's competency reports should have been provided to him or reviewed in camera.

         1. The Competency Reports Are Privileged

         ¶29 Zapata argues that Murillo's competency reports are not privileged. We disagree. First, we observe that Zapata likely forfeited this argument, abandoned it on appeal, or both. At the motions hearing, Zapata's counsel appeared to assume that the reports were privileged and argued only that the privilege was waived. Likewise, on appeal, Zapata focused his argument on waiver. Regardless, we conclude that competency reports are protected by the psychologist-client or physician-patient privilege.

         ¶30 In addressing these privileges, we must first consider whether a psychologist or physician was involved. Court-ordered and defendant-requested competency evaluations must be conducted by a "competency evaluator." § 16-8.5-101(5), C.R.S. (2018) (defining "[c]ourt-ordered competency evaluation"); § 16-8.5-106, C.R.S. (2018) (allowing a defendant "to be examined by a competency evaluator of his or her own choice"). And "competency evaluator" means a licensed psychologist (with certain qualifications) or a psychiatrist. § 16-8.5-101(2). The record does not include, under seal or otherwise, copies of the reports. Thus, the record does not reveal the identity or professional status of the competency evaluator(s) who conducted the evaluations at issue here. But there is no indication of any failure to comply with section 16-8.5-101(2). Therefore, we assume that either a psychologist or a psychiatrist conducted the evaluations at issue here. We examine the requirements for privilege as to each type of professional.

         ¶31 Communications between a client and licensed psychologist implicate the psychologist-client privilege statute, section 13-90-107(1)(g), C.R.S. (2018). Under this statute, "[a] licensed psychologist . . . shall not be examined without the consent of the licensee's . . . client as to any communication made by the client to the licensee . . . or the licensee's . . . advice given in the course of professional employment." § 13-90-107(1)(g). Here, the only portion of the psychologist-client privilege that would be at issue is that which addresses communications made by the client to the licensed psychologist. We acknowledge that the psychologist offers no "advice" (in the clinical sense) to the defendant in this context.

         ¶32 Because psychiatrists are licensed physicians, their communications with patients implicate the physician-patient statute, section 13-90-107(1)(d). Under this statute, "[a] physician . . . shall not be examined without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient . . . ." § 13-90-107(1)(d).

         ¶33 Both privileges prohibit both testimonial disclosures and "pretrial discovery of information within the scope of the privilege." Clark v. Dist. Court, 668 P.2d 3, 8 (Colo. 1983). This includes "files or records derived or created in the course of the treatment." People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002) (psychologist-patient privilege).

         ¶34 Because the competency evaluation statute required licensed psychologists or psychiatrists to conduct the competency evaluations at issue here, the reports are privileged if (1) Murillo was a patient or client of the evaluator, (2) the evaluator "attended" to Murillo in conducting the evaluation, and (3) the information acquired in attending to Murillo was necessary to enable the evaluator to act for Murillo. We conclude that all three requirements are met. (We take it as a given that a licensed psychologist would be acting "in the course of professional employment" in evaluating a defendant's competency.)

         ¶35 First, we observe that the question of whether the evaluator "attended to" Murillo in conducting the evaluation is closely connected to the question of whether Murillo was the evaluator's patient or client. Merriam-Webster defines "attend," as relevant here, as "to look after" or "to visit professionally especially as a physician."[2] Attend, Merriam-Webster's Online Dictionary, https://merriam-webster.com/ dictionary/attend [https://perma.cc/7L72-R75S]. Physicians certainly "visit" their patients "professionally." Thus, we begin by examining whether Murillo was a patient or client of the evaluator.

         ¶36 The privilege statute does not define "patient" or "client." Black's Law Dictionary simply defines "patient" as "[a] person under medical or psychiatric care." Patient, Black's Law Dictionary (10th ed. 2014). While criminal defendants undergoing competency evaluations typically are not patients or clients in a "fee-for-service" sense, competency evaluations are utilized for diagnostic and treatment purposes. The competency evaluator is, at least in part, performing a role typical of a physician or psychologist in a physician-patient or psychologist-client relationship. In a "[c]ourt-ordered competency evaluation," the examination of the defendant is "directed to developing information relevant to a determination of the defendant's competency to proceed at a particular stage of the criminal proceeding." § 16-8.5-101(5). A defendant is "[c]ompetent to proceed" if he:

do[es] not have a mental disability or developmental disability that prevents [him] from having sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents [him] from having a rational and factual understanding of the criminal proceedings.

§ 16-8.5-101(4). If the defendant is incompetent to proceed, the court has discretion to determine how to restore the defendant to competency. See § 16-8.5-111, C.R.S. (2018). Any course of action by the court, however, must contemplate using the competency evaluation as a starting point for treatment to restore competency. In sum, the competency evaluator examines the defendant to determine whether the defendant is incompetent and thus needs treatment to address a mental or developmental disability that prevents the defendant from consulting reasonably with his lawyer and understanding the proceedings. Because the competency evaluator is, in part, performing a role typical of a physician-patient or psychologist-client relationship, we conclude that Murillo was a client or patient of the evaluator and the evaluator "attended to" Murillo in conducting the evaluations.

         ¶37 Now we turn to whether the information acquired in attending Murillo was necessary to enable the evaluator to act for him. In general, "before ruling on [a] claim of privilege . . ., the trial court [must] determine[] whether the particular information . . . sought . . . [is] in fact necessary for treatment." People v. Reynolds, 578 P.2d 647, 649 (Colo. 1978). An evaluator may question the defendant about the offense and its surrounding circumstances - and thus would "acquire that information" in the parlance of the privilege statute -"[t]o aid in forming an opinion as to the competency of the defendant." § 16-8.5-105(3).

         ¶38 And acquiring that information enables the evaluator to act for the defendant. Competency evaluations, even when court ordered, are conducted, at least in substantial part, for the defendant's benefit. The U.S. Supreme Court has "repeatedly and consistently recognized that 'the criminal trial of an incompetent defendant violates due process.'" Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v. California, 505 U.S. 437, 453 (1992)). Thus, these evaluations benefit defendants by protecting their due process rights. Because forming an opinion as to the defendant's competence is done for the defendant's benefit, information utilized in forming such an opinion is necessary for the evaluator to act for the defendant.

         ¶39 Thus, we conclude that competency reports are privileged. While the plain language justifies this conclusion, we further note that the purpose of these privileges is to encourage forthrightness between clients and patients and their psychologists and psychiatrists. See People v. Dist. Court, 719 P.2d 722, 724 (Colo. 1986) (psychologist-client privilege); Cmty. Hosp. Ass'n v. Dist. Court, 570 P.2d 243, 244 (Colo. 1977) (physician-patient privilege). Given the weighty due process rights at stake, we surely want to encourage such forthrightness between defendants and the professionals evaluating their competency.

         ¶40 Because competency reports are privileged, they may not be revealed absent Murillo's consent or waiver. Murillo has not consented. Thus, Murillo's competency reports are privileged unless the privilege has been waived. We next address whether the privilege was waived under section 16-8.5-104.[3]

         2. The Competency Statute Waives Privilege Only as to the ...


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