People v. Burlingame

434 P.3d 794

The PEOPLE of the State of Colorado, Plaintiff-Appellant,

v.Jasmine BURLINGAME, Defendant-Appellee.

Court of Appeals No. 16CA2198

Colorado Court of Appeals, Division IV.

February 7, 2019

Beth McCann, District Attorney, Katherine A. Hansen, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE NIETO^*

¶1 The People appeal the trial court’s dismissal of charges against defendant, Jasmine Burlingame, based on outrageous government conduct. We reverse and remand with directions.

I. Background

¶2 Defendant alleged that after a night out drinking with a coworker, she went with him to his home. She reported that later that evening she was raped by his roommate. She submitted to a Sexual Assault Nurse Examiner exam where samples were taken from various places on her body. Police investigators contacted the coworker and the roommate, both of whom volunteered DNA samples which the investigators then compared with the samples taken from defendant’s body. The results of the DNA test conclusively showed that it could not have been the roommate who had sexual contact with defendant, but rather that it was the coworker.

¶3 Upon learning this, two prosecutors, an investigator from the prosecutor’s office, and a police detective decided to interview defendant. Defendant was experiencing car trouble, so they visited her at home. They brought a video camera to record the interview and set defendant up on a folding chair in the camera’s frame. Out of the frame sat defendant’s mother, other female friends and family, the prosecutors, and the investigators.

¶4 On the video recording, the police detective informed defendant that the DNA proved that it was the coworker, not the roommate, who had sexual contact with her, contrary to what she said had happened. Defendant became visibly upset and began to cry. The prosecutors informed her that they would have to drop the charges against the man she claimed raped her, and they asked her if there was anything else she would like to tell them. Defendant made statements such as "I don’t know what to say," and "I don’t understand how that is possible." She stated that she had blacked out a lot of the incident, so her memory was less than clear.

¶5 After several more minutes of discussion, defendant, in tears, told the investigators and prosecutors to leave, and they did.

¶6 Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

¶7 The trial court held a hearing where defendant argued, as is relevant here, that the videotape of the interview should be suppressed, and that the case should be dismissed because the government’s conduct was outrageous. Defendant had also subpoenaed one of the prosecutors who was present for the interview to testify at the hearing, which the trial court allowed, denying the prosecution’s motion to quash the subpoena. During the hearing, the prosecutor, invoking the work product privilege, objected to evidence that might have shed light on the decision-making process that led the district attorney’s office to the decisions to interview and file charges against the defendant.

¶8 In an oral ruling, the trial court dismissed the case based on a finding of outrageous government conduct. It did not rule on the request to suppress the videotape.

II. Analysis

¶9 The People assert on appeal that the trial court erred in concluding that there was outrageous government conduct warranting dismissal of the charges against defendant. We agree.

¶10 Trial courts determine whether there has been outrageous government conduct by "reviewing the totality of the facts in a given case." People v. McDowell , 219 P.3d 332, 336 (Colo. App. 2009). We review a trial court’s dismissal of a case based on a finding of outrageous government conduct for an abuse of discretion. Id. A trial court abuses it discretion when its ruling is manifestly arbitrary or unreasonable. People v. Medina , 51 P.3d 1006, 1011 (Colo. App. 2001), aff’d sub nom. Mata-Medina v. People , 71 P.3d 973 (Colo. 2003). It is an abuse of discretion if the court misinterprets or misapplies the law. People v. Douglas , 2016 COA 59, ¶ 54, 411 P.3d 1026.

¶11 However, we note that outrageous government conduct has always been recognized as a violation of due process. See Bailey v. People , 630 P.2d 1062, 1068 (Colo. 1981) ; McDowell , 219 P.3d at 336 ; Medina , 51 P.3d at 1011. We review due process violations de novo. See, e.g. , Quintano v. People , 105 P.3d 585, 592 (Colo. 2005) ; People in Interest of C.J. , 2017 COA 157, ¶ 25, 410 P.3d 839. We need not resolve this conflict because we conclude the trial court abused its discretion.

¶12 "Outrageous governmental conduct is conduct that violates fundamental fairness and is shocking to the universal sense of justice." Medina , 51 P.3d at 1011. Instances where trial courts have found outrageous government conduct in Colorado are vanishingly rare, and the threshold for such a finding appears to be exceedingly high. In fact, we found only one such case where a Colorado appellate court upheld a finding of outrageous government conduct. People v. Auld , 815 P.2d 956, 959 (Colo. App. 1991) (upholding the dismissal of charges based on a finding of outrageous government conduct because the prosecution filed fake charges against an undercover agent and therefore "dup[ed the] court into becoming an accomplice" to their nefarious actions).

¶13 We understand the trial court’s ruling to be based on (1) the fact that the interview was videotaped; (2) the fact that the prosecutors repeatedly used the work product privilege to block any evidence showing why they chose to videotape the interview or to explain their decision-making process in filing the charges; and (3) a violation of the Victim Rights Act, sections 24-4.1-301 to - 305, C.R.S. 2018. The court’s oral ruling is sparse, and it cites no legal authority for support. We conclude that the trial court’s findings of fact do not support its conclusion that the government’s conduct was outrageous.

¶14 First, the trial court did not cite authority or explain why videotaping the interview with defendant was improper other than the judge’s personal experience and his conclusion, without evidentiary support, that this was an extraordinary and unprecedented action by the police and the prosecutors. However, given the state’s authority to investigate suspected criminal conduct, we fail to see how this fact alone can constitute outrageous conduct. See Medina , 51 P.3d at 1012.

¶15 Second, the prosecution’s persistent, but largely proper, use of the work product privilege cannot form a basis for a finding of outrageous governmental conduct no matter how frustrating it may have been to the trial court. The trial court could and did use the lack of evidence caused by the objections to find that the state’s sole purpose in videotaping the interview was to collect evidence against the defendant. But, as the trial court recognized, the objections were largely proper, and again we fail to see how making a proper objection to questions can constitute outrageous conduct.

¶16 Third, the trial court found a violation of the Victim Rights Act without identifying the specific section violated. We presume the finding relates to section 24-4.1-302.5(1)(a), C.R.S. 2018, which states that victims have "[t]he right to be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process." However, the videotape shows that during the interview the defendant was treated with respect and was not harassed or abused. The large police presence might have been intimidating, but that was mitigated by the respectful treatment and the interview taking place in the defendant’s home with her family and friends present. In any event, under the circumstances shown by this record, this was at most a procedural violation that cannot support a finding of outrageous conduct. See McDowell , 219 P.3d at 336 (intentionally withholding Miranda warnings to obtain statements and then giving the warnings and repeating the questions did not constitute outrageous conduct); Medina , 51 P.3d at 1012 (egregious violations of a defendant’s Fifth Amendment rights did not constitute outrageous conduct).

¶17 Finally, even considered together, these circumstances cannot be fairly said to "violate[ ] fundamental fairness" or to be "shocking to the universal sense of justice." Medina , 51 P.3d at 1011. Because the trial court’s findings of fact are not supported by the record, we conclude they were arbitrary and thus an abuse of discretion.

¶18 At the heart of our decision is our conclusion that while the government’s behavior might be considered poor judgment or even legal error, the conduct did not rise to the level of outrageous governmental conduct.

¶19 Therefore, we reverse the district court’s order dismissing the case and remand with directions to reinstate the charges and to consider the motions still pending before it, including whether the interview should be suppressed because the totality of the circumstances surrounding it constituted psychological coercion.

JUDGE HAWTHORNE concurs.

JUDGE TOW specially concurs.

JUDGE TOW, specially concurring.

¶20 I agree with my colleagues that the district court here abused its discretion in finding that the government’s conduct in this case violated defendant’s due process rights, and thus erred in dismissing the charges. However, I write separately to urge the Colorado Supreme Court to revisit the standard of review in such cases.

¶21 The Colorado Supreme Court first acknowledged the concept of outrageous government conduct in People v. Vandiver , 191 Colo. 263, 552 P.2d 6 (1976). There, in addressing the defense of entrapment, the court observed...