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
...