The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 7, 2019

No. 16CA2198, People v. Burlingame — Constitutional Law — Due Process; Criminal Law — Outrageous Government Conduct

A division of the court of appeals concludes that the trial

court’s factual findings do not support a finding of outrageous

government conduct. As a result, the division instructs the trial

court to reinstate the charges and remands the case to the trial

court for consideration of the remaining issues. The special

concurrence addresses the question of what should be the correct

standard of review. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA2198 City and County of Denver District Court No. 15CR4899 Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Jasmine Burlingame,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE NIETO* Hawthorne, J., concurs Tow, J., specially concurs

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

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶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

1 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

2 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,

(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.

A

trial court abuses it discretion when its ruling is manifestly

3 arbitrary or unreasonable. People v. Medina,

, 1011

(Colo. App. 2001), aff’d sub nom. Mata-Medina v. People,

(Colo. 2003). It is an abuse of discretion if the court

misinterprets or misapplies the law. People v. Douglas,

, ¶ 54.

¶ 11 However, we note that outrageous government conduct has

always been recognized as a violation of due process. See Bailey v.

People,

(Colo. 1981); McDowell,

; Medina, 51 P.3d at 1011. We review due process violations de

novo. See, e.g., Quintano v. People,

(Colo. 2005);

People in Interest of C.J.,

, ¶ 25. 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

4 conduct. People v. Auld,

(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,

5 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

6 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,

(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

7 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.

8 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,

,

(1976). There, in addressing the defense of

entrapment, the court observed that “[a]bsent outrageous conduct

by the officers violating fundamental standards of due process, the

focus remains on the defendant.”

,

. Five

years later, the supreme court went a bit further and appeared to

accept at least the possibility that outrageous government conduct

may be a defense to a criminal prosecution in certain

circumstances. See Bailey v. People,

(Colo.

1981) (noting the consistency between the above-quoted statement

in Vandiver and Justice Powell’s concurring opinion in Hampton v.

United States,

(1976), “in which he refused to

9 join the plurality in declaring that ‘no matter what the

circumstances, neither due process principles nor our supervisory

power could support a bar to conviction in any case where the

Government is able to prove predisposition’”).

¶ 22 In People in Interest of M.N.,

(Colo. 1988), the

supreme court reviewed a trial court’s application of this defense.

In M.N., the trial court had dismissed three juvenile delinquency

petitions after finding that an undercover police officer had induced

the minors to commit the charged crimes, and that the officer’s

actions constituted outrageous government conduct that deprived

the juvenile of due process. Id. at 1127. A plurality of the supreme

court said that “[t]he question whether circumstances are

demonstrated which would bar prosecution under due process

principles is for the court.” Id. at 1129 (quoting United States v.

Szycher,

(10th Cir. 1978)). The plurality

continued, “[t]he district court was therefore acting within its

discretion when it ruled on the outrageous governmental conduct

issue.”

Noting that it was “clear that the district court erred in

holding that the testimony at the hearing established that the

defendant had made a showing of outrageous governmental

10 conduct,” the plurality held “that the district court’s holding as a

matter of the law that the charges must be dismissed as a result of

due process violations arising from outrageous governmental

conduct was erroneous and constituted an abuse of discretion.” Id.

at 1129-30.

¶ 23 Divisions of this court have applied the abuse of discretion

standard announced in M.N. See People v. McDowell,

(Colo. App. 2009); People v. Medina,

, 1011 (Colo.

App. 2001), aff’d sub nom. Mata-Medina v. People,

(Colo. 2003).

¶ 24 I believe the language in M.N. establishing the standard of

review as an abuse of discretion was not supported by the authority

on which it relied and was (and remains) inconsistent with the

standard of review of due process claims in every other context.

¶ 25 First, upon close analysis, it is not even clear whether the

court in M.N. actually reviewed the matter for an abuse of

discretion. The court did not recite what test is applied to

determine whether a trial court abuses its discretion. Rather, it

quickly concluded that the trial court had erred, without applying

any particular test.

11 ¶ 26 Moreover, even if the review conducted in M.N. was for an

abuse of discretion, there is no clear explanation as to why such

review would be applicable. In fact, the invocation and application

of abuse of discretion review was not supported by citation to

Szycher, or any other case. The court in M.N. correctly quoted the

Tenth Circuit’s decision in Szycher, which held that the question

whether due process was violated was “for the court.” 761 P.2d at

1129 (quoting Szycher,

). But the context of that

statement in the federal case is informative.

¶ 27 There, the outrageous government conduct claim was closely

intertwined with an entrapment defense. Szycher,

.

The jury had been permitted to consider (and had rejected) the

entrapment defense, while the court had ruled on the outrageous

government conduct claim. The Tenth Circuit panel opined that

“the trial judge was correct in deciding this issue himself. The

question whether circumstances are demonstrated which would bar

prosecution under due process principles is for the court.”

In

other words, the Tenth Circuit was addressing whether the trial

court appropriately removed consideration of this particular defense

12 from the jury’s purview, not whether the decision by the trial court

was a discretionary one.

¶ 28 Nor does abuse of discretion review necessarily flow from the

mere premise that the question is one “for the court.” The

characterization of an issue as one “for the court” rather than “for

the jury” generally means it is not a factual but rather a legal

determination. An appellate court generally reviews a trial court’s

legal conclusions de novo. See, e.g., Westin Operator, LLC v. Groh,

(reviewing de novo a trial court’s ruling

granting summary judgment on the legal question of whether there

was a duty); Peper v. St. Mary’s Hosp. & Med. Ctr.,

(Colo. App. 2008) (observing that immunity “is a question of

law for the court to decide” and applying de novo review) (citation

omitted); Boulder Plaza Residential, LLC v. Summit Flooring, LLC,

(Colo. App. 2008) (applying de novo review to

the construction of a contract, which “is a question of law for the

court”); Bd. of Cty. Comm’rs v. City of Aurora,

(Colo. App. 2002) (noting that interpretation of the Municipal

Annexation Act “is a question of law for the court to decide, and our

review is therefore de novo”).

13 ¶ 29 Indeed, had the supreme court looked to the federal courts for

guidance on the standard of review, it would not have found any

support for applying an abuse of discretion review. I could find no

cases that had been decided when M.N. was announced applying an

abuse of discretion review; to the contrary, those cases that had

stated a standard of review had reviewed the matter de novo. See,

e.g., United States v. Citro,

(9th Cir. 1988);

United States v. Valona,

(7th Cir. 1987).

¶ 30 In the intervening years, the Tenth Circuit has clearly said

that outrageous government conduct claims are reviewed de novo.

United States v. Pedraza,

(10th Cir. 1994). In

doing so, the trial court’s factual findings are reviewed under the

clearly erroneous standard. United States v. McKissick,

(10th Cir. 2000). In other words, these rulings are

reviewed as mixed questions of law and fact.

¶ 31 As for state courts, none aside from the Colorado Supreme

Court has clearly established abuse of discretion as the standard of

review in this area. Indeed, the California Court of Appeals is the

only other state court that employs abuse of discretion review in

this area, and that judicial body has a split of authority on the

14 point. Compare People v. Uribe,

(Cal.

Ct. App. 2011) (reviewing de novo), with People v. Velasco-Palacios,

(Cal. Ct. App. 2015) (reviewing for an

abuse of discretion). Of the other states that have considered the

issue, many take the same approach as the federal courts,

reviewing it as a mixed question of law and fact. See State v.

Williamson,

(Ariz. Ct. App. 2015); State v. Simmons,

(Mo. Ct. App. 2012); State v. Laurence,

(R.I. 2004); State v. Valentine,

(Wash. 1997); State v. Houston,

(W. Va. 1996).

Other states have held that the ultimate question of whether

government conduct violated a defendant’s right to due process is

reviewed de novo, without mention of any deferential review of the

trial court’s factual findings. See Todd v. State,

(Ark. Ct. App. 2012); State v. Nelson,

(Kan. 1991);

State v. Fitzpatrick,

(Mont. 2012); State v.

Hoverson,

(N.D. 2006); State v. Hudson,

, ¶ 8.

¶ 32 Even within Colorado, abuse of discretion review is generally

not the applicable standard in areas of constitutional inquiry.

15 Rather, Colorado’s appellate courts apply the “mixed question of law

and fact” in such scenarios. For example, “[w]e defer to a trial

court’s findings of credibility and historical facts so long as they are

supported by the record. But we review de novo the legal

determination of whether an individual is in custody for Miranda

purposes.” People v. Sampson,

(citation

omitted). The same standard is used when reviewing “whether a

seizure violated constitutional prohibitions against unreasonable

searches and seizures.” People v. Funez-Palagua,

.

And the “mixed question of law and fact” review standard has been

applied in a different due process context. Bernal v. People,

(Colo. 2002) (reviewing whether a pretrial identification

procedure violated the defendant’s right to due process by creating

a very substantial likelihood of misidentification).

¶ 33 In still other due process contexts, our appellate courts have

reviewed de novo whether a defendant’s right to due process was

violated. In Quintano v. People, the supreme court reviewed de novo

whether the defendant’s due process rights were denied when the

prosecution failed to elect the particular act on which it relied for

conviction.

(Colo. 2005). In People v.

16 Calderon, a division of this court reviewed de novo a claim that the

defendant’s due process rights were violated when his probation

was revoked without his having received notice of the probation

conditions.

. And in People v. Nave, another

division of this court applied de novo review to the question whether

the defendant’s due process rights were violated as a result of lost

or destroyed evidence.

(Colo. App. 1984).

¶ 34 The due process claims in Quintano, Calderon, and Nave

generally are not the type of claims that will present significant

factual disputes. Thus, a pure de novo analysis makes sense in

those circumstances. However, a claim of outrageous government

conduct will necessarily involve factual findings by the trial court.

Indeed, the plurality in M.N. observed that such a claim must “be

tested by an appraisal of the totality of facts in a given case.” 761

P.2d at 1129 (quoting United States v. Spivey,

, 149

n.2 (10th Cir. 1975)). Consequently, in my view, the appropriate

standard of review of outrageous government conduct claims is to

defer to the trial court’s factual findings unless clearly erroneous,

and then review de novo the ultimate conclusion as to whether the

defendant’s right to due process was violated.

17 ¶ 35 I do not deny that often, as here, one can reach the same

result after reviewing for an abuse of discretion. Nevertheless,

applying such a deferential standard of review to an issue of

constitutional magnitude is an extreme outlier. This anomaly

engenders confusion and risks creating inconsistencies and

disparities in our due process jurisprudence. For these reasons, I

urge the supreme court to look anew at this important question.

18