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In re People

Supreme Court of Colorado, En Banc

June 10, 2019

In Re The People of the State of Colorado, Plaintiff,
v.
Brandon D. Brown. Defendant,

          Original Proceeding Pursuant to C.A.R. 21 District Court, City and County of Denver, Case No. 17CR20001 Honorable Kenneth M. Laff, Judge.

          Attorneys for Plaintiff: Beth McCann, District Attorney Johanna G. Coats, Deputy District Attorney Denver, Colorado

          Attorneys for Defendant: Appeal to Justice, LLC Amy D. Trenary Broomfield, Colorado

          COATS CHIEF JUSTICE does not participate.

          OPINION

          HOOD, JUSTICE.

         ¶1 After being charged with first degree murder as an adult in district court, Brandon Brown exercised his statutory right to request a "reverse transfer" to juvenile court. In doing so, he asks us to address whether he may temporarily waive privilege as to certain information at the reverse-transfer hearing without suffering a continued waiver at trial.[1]

         ¶2 We hold that he may not. Nothing in the reverse-transfer statute gives Brown the ability to make such a limited waiver. And, neither common law scope-of-waiver limitations nor constitutional principles regarding impermissibly burdening rights changes that result. By disclosing otherwise privileged information in open court during a reverse-transfer hearing, Brown would waive privilege as to any such information at trial. Because we agree with the trial court's ruling to the same effect, we discharge our rule to show cause.

         I. Facts and Procedural History

         ¶3 Brandon Brown was charged as an adult in district court for crimes alleged to have taken place in 2012, when he was seventeen years old. The district attorney charged Brown with one count of first degree murder, eight counts of attempted first degree murder, and one count of conspiracy to commit aggravated robbery. Brown exercised his statutory right to seek a reverse transfer, a process that could result in his case being transferred from district court, where he would be tried as an adult, to juvenile court, where he would face prosecution under the Children's Code. See § 19-2-517(3)(a), C.R.S. (2018) (outlining the procedures for transferring a case from district court to juvenile court).

         ¶4 Before the reverse-transfer hearing, however, Brown sought a protective order, requesting that the district court prohibit the prosecution from using at trial "[a]ny evidence presented at the reverse-transfer hearing, and/or in briefs related to the issue of reverse-transfer." In addition to this wide-ranging request, Brown specifically singled out:

• expert reports;
• medical, dental, mental health, and/ or psychological evaluations, screenings, or treatment, and any records underlying such evaluations or records upon which such evaluations are based;
• school records;
• Department of Human Services records;
• records of dependency and neglect proceedings;
• confidential records maintained by agencies of the judicial department or executive branch; and
• any other confidential records.

         ¶5 The district court denied the request for the protective order altogether. It found that it was "unlikely that the type of evidence generally presented at a reverse transfer hearing would be relevant and admissible at a trial." But, in any event, it held that "neither case law nor statute" empowers a defendant at a reverse-transfer hearing to introduce privileged information without waiving privilege as to that information.

         ¶6 We granted Brown's petition for a rule to show cause pursuant to C.A.R. 21. He argues that the district court abused its discretion by refusing to issue the protective order.

         II. Analysis

         ¶7 We first address why jurisdiction is appropriate under C.A.R. 21. Because this is a question of first impression as to which a remedy on appeal could prove inadequate, we choose to exercise our original jurisdiction. Second, we identify the standard of review. Third, we analyze whether Brown can partially waive privilege during the reverse-transfer hearing. We conclude that ...


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