In Re: People v. Tippet, Joseph

539 P.3d 547, 2023 CO 61

• Court: Supreme Court of Colorado
• Decided: December 11, 2023
• Docket: 23SA111
• Status: Published

Opinion

The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2023 CO 61

Supreme Court Case No. 23SA111 Original Proceeding Pursuant to C.A.R. 21 Fremont County District Court Case No. 23CR5000 Honorable Kaitlin B. Turner, Judge

In Re Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Joseph James Tippet.

Rule Discharged en banc December 11, 2023

Attorneys for Plaintiff: Linda Stanley, District Attorney, Eleventh Judicial District Mark Hurlbert, Deputy District Attorney Cañon City, Colorado

Attorneys for Defendant: Megan A. Ring, Public Defender Adam Robert Tunink, Deputy Public Defender Salida, Colorado

Attorneys for Respondent Fremont County District Court: Shannon Stevenson, Solicitor General Joseph A. Peters, Senior Assistant Attorney General Joseph G. Michaels, Assistant Solicitor General Allison S. Block, Assistant Attorney General Fellow Denver, Colorado

Attorneys for Amicus Curiae Colorado District Attorneys’ Council: Kevin E. McReynolds, Senior Appellate Deputy District Attorney Golden, Colorado

Arnold J. Hanuman Denver, Colorado

Attorneys for Amicus Curiae Office of the Colorado Attorney General: Natalie Hanlon Leh, Chief Deputy Attorney General Jillian J. Price, Deputy Attorney General Denver, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which JUSTICE HOOD, JUSTICE GABRIEL, and JUSTICE HART joined. JUSTICE SAMOUR, joined by CHIEF JUSTICE BOATRIGHT and JUSTICE MÁRQUEZ, dissented.

2 JUSTICE BERKENKOTTER delivered the Opinion of the Court.

¶1 In this original proceeding, we consider whether the district court abused

its discretion by (1) granting Joseph James Tippet’s motion seeking discovery

sanctions against the Eleventh Judicial District Attorney’s Office based on a

pattern of neglect, and (2) reducing the charge against Tippet from first degree

murder to second degree murder.1 We granted the People’s petition to review that

order by issuing a rule to show cause. We conclude that the district court did not

abuse its discretion by determining that the District Attorney’s Office engaged in

an ongoing, significant pattern of discovery violations across multiple cases, or, in

light of the specific circumstances of this case, by reducing the charge against

Tippet as a deterrent sanction.

¶2 Accordingly, we discharge the rule to show cause.

I. Facts and Procedural History

¶3 The People allege that, on January 6, 2023, Tippet shot and killed his father.

Tippet was taken into custody that evening and ultimately charged with first

degree murder. § 18-3-102(1)(A), C.R.S. (2023).

1 The People’s petition presents the following issue:

1. As a remedy for late discovery, does a trial court have authority to lower the charges after discovery has been provided and prior to scheduling of the preliminary hearing?

3 ¶4 At his first appearance on January 18, the parties discussed defense motions

D-9 and D-10. In motion D-9, Tippet asked the magistrate to order the prosecution

to comply with Rule 16 of the Colorado Rules of Criminal Procedure, which

requires it to make certain material and information in its possession or control

available “as soon as practicable” but not later than twenty-one days after a

defendant’s first appearance. Crim. P. 16(I)(b)(1). Tippet also sought, in motion

D-10, an order requiring the memorialization and disclosure of all law

enforcement conversations with potential victims and witnesses. Defense counsel

noted that while Rule 16 was self-executing and the People’s obligation was to

produce information as soon as practicable, he was concerned because he had yet

to receive any discovery from the People. His concerns were greatly exacerbated,

he added, given what he described as a pattern of discovery violations by the

District Attorney’s Office in other recent cases.

¶5 The prosecutor assigned to the case did not appear, but the deputy covering

for her assured the court that the People understood their discovery obligations.

¶6 The magistrate granted motion D-9, subject to an exception for privileged

communications. The magistrate also granted motion D-10, ordering:

Not later than January 28, 2023,2 the prosecution shall discover to the Defense all materials and information within its possession or control

2 While the magistrate set the Rule 16 discovery deadline for January 28, 2023, the

deadline for Rule 16(I)(a)(1) disclosures, falling twenty-one days from the

4 as to items defined in Colorado Rules of Criminal Procedure, Rule 16, Part I, (a) (1) (I), (IV), (VII) and (VIII). The term possession or control includes those defined items that are in the possession of the investigating agencies[,] and it is the responsibility of the prosecution to discover those items in the possession of the agencies regardless of whether the prosecution maintains those items in its actual possession. . . .

The prosecution shall instruct the investigating officers to retain and turn over to the prosecution all notes of interviews with witnesses for discovery to the Defense.

The magistrate set the matter over to March 8 for a pretrial conference.

¶7 Forty-seven days later, on March 6—vexed about the state of discovery in

the case—Tippet filed a motion to dismiss the first degree murder charge as a

sanction for the prosecution’s violation of the magistrate’s orders. Tippet argued

that the prosecution had only produced 148 pages of discovery and some

body-worn camera footage by the discovery deadline. He acknowledged that the

prosecution produced twenty-eight additional pages of discovery after the

deadline, but in his view, this production only proved that the prosecution

continued to fall down on its Rule 16 obligations. All the late-discovered

materials, Tippet asserted, including his interrogation and the autopsy report,

were created before the discovery deadline, and therefore should have been

turned over by that date.

“defendant’s first appearance at the time of or following the filing of charges” fell on February 8, 2023. Crim. P. 16(I)(b)(1). We use February 8, 2023, to calculate periods of delay throughout this opinion.

5 ¶8 Tippet contended that these violations were part of an ongoing pattern and

practice by the District Attorney’s Office of neglecting its discovery obligations.

To illustrate his point, the motion identified nearly thirty other cases in which the

District Attorney’s Office faced pattern discovery sanctions by various judges

sitting in the Eleventh Judicial District during the preceding two years.

¶9 Tippet argued that, without the requisite discovery, his attorney was unable

to investigate the first degree murder charge or prepare to cross-examine Tippet’s

accusers. In short, Tippet—who remained in custody—asserted he was being

denied his right to effective assistance of counsel. Only a significant deterrent

sanction, like reducing his charge to second degree murder, would suffice, he

urged, because the discovery violations in his case, along with the District

Attorney’s Office’s ongoing pattern of neglect of its discovery obligations,

demonstrated a need for the Office to modify its discovery practices.

¶10 The next day, March 7, Tippet filed another motion to dismiss the first

degree murder charge, this time identifying additional discovery violations. The

prosecution, he asserted, still had not produced: (1) 911 call recordings;

(2) computer-aided dispatch event reports (“CAD reports”) and notes from the

various investigating law enforcement agencies, including the Fremont County

Sheriff’s Office, the Cañon City Police Department, the Colorado State Patrol, the

Salida Police Department, and the Chaffee County Sheriff’s Office; and (3) two

6 hours of video footage alleging to show Tippet at his prior employer before the

alleged offense.

¶11 The parties were set to appear before the magistrate the next day, March 8,

for a pretrial conference. At first, the People failed to appear. Midway through, a

third deputy district attorney, Deputy Little, appeared by WebEx, and explained

that a fourth deputy was now responsible for the case but that she was in training

that day and would not appear.

¶12 During the pretrial conference, the parties discussed the status of the

prosecution’s discovery and Tippet’s motions to dismiss. Deputy Little made no

representations about his office’s compliance with the court’s discovery orders.

The magistrate advised the parties that “since the Defense [was] seeking dismissal

as a sanction, [his] inclination [wa]s to refer this to the District Court for a ruling

on that,” though he indicated he wasn’t going to set anything at that time.

¶13 The parties next appeared before the magistrate on March 22, forty-two

days after the Rule 16(I)(b)(1) disclosure deadline. Discovery issues again

dominated the hearing. Defense counsel represented that he had only received

190 pages of discovery as of that date, far less than he would expect in a first degree

murder case. And he asserted that the ongoing discovery issues were making it

impossible for him to effectively represent Tippet and to prepare for his

preliminary hearing.

7 ¶14 Deputy Little appeared for the People. He countered that discovery did not

have to be completed prior to a preliminary hearing and that the prosecution had

been responsive, stressing that “[a]nytime somebody says, this is what’s lacking,

we go and get it.” And, in any event, he observed, regardless of any late discovery,

the preliminary hearing’s outcome was essentially a foregone conclusion because

the People had discovered Tippet’s recorded confessions.

¶15 The magistrate was unmoved by the prosecution’s arguments. He explicitly

reminded the prosecution (1) that its belief about the timing of discovery was

erroneous, (2) that discovery under Rule 16(I)(a)(1) was due within twenty-one

days of Tippet’s first appearance, and (3) “we are far beyond that” deadline. The

magistrate set the matter over for seven days—until March 29—and explained that

if the People had not turned over all the discovery required under the rule by then,

he would set the matter for a sanctions hearing with District Court Judge Turner.

The magistrate also admonished the People: “[Y]ou have to do your job. You

simply have to do it. And there is a pattern of this office not doing it.” (Emphasis

added.) The magistrate warned that he would not continue to hold hearings on

discovery violations “over and over and over again,” merely to have the People

say, “[w]ell, we’re doing the best we can.”

¶16 Six days later, on March 28—forty-eight days after the Rule 16(I)(b)(1)

disclosure cutoff—the People produced 1,134 additional pages of discovery and

8 filed a document certifying that they had disclosed all discovery in their

possession and in the possession of the investigating law enforcement agencies.

¶17 Tippet responded by supplementing his motions to dismiss and raising new

concerns regarding the People’s compliance with their Rule 16(I)(a)(1) discovery

obligations. Tippet asserted that the People’s most recent production proved

exactly what he had been arguing since his first appearance on January 18: that the

People would not, and did not, comply with their discovery obligations.

Specifically, he noted that the prosecution’s production of 1,134 additional pages

of discovery in the preceding six days represented 85% of the total discovery

produced since the case began.

¶18 And, Tippet continued, the prosecution’s certification of compliance with its

discovery obligations was inaccurate because the violations were ongoing. It still,

Tippet asserted, had not produced certain types of communication, including

police notes from the investigating law enforcement agencies and email and text

correspondence between the prosecution and those agencies, which the magistrate

directed the People to produce in his order granting defense motion D-9 back in

January.

¶19 The next day, during yet another hearing to discuss the status of the case

and discovery issues, the magistrate asked the People whether the late discovery

disclosures represented a systemic problem with the District Attorney’s discovery

9 procedures. Deputy Little, who again appeared for the People, responded that he

couldn’t “comment on that,” answering only that it was “an issue that really needs

to be resolved.” Then, after acknowledging Tippet’s pending sanctions motions,

Deputy Little indicated that he needed an opportunity to file a response to the

motions and that he thought that the motions for sanctions and the question of

whether there was a systemic problem with the District Attorney’s discovery

process, “would be more necessarily opined or discussed in front of Judge Turner

if she were inclined to impose sanctions.”

¶20 The magistrate then set the sanctions motions to be heard by the district

court on March 31.

¶21 On March 30, the People filed a response to the motions for sanctions,

asserting that the discovery violations in Tippet’s case were due to support staff’s

“mistaken assumptions” and failures to verify that all discovery had been

obtained through their internal discovery software. Similarly, the People

answered that “human error, technological glitches, or agency partnership

disconnects or miscommunications” were the basis for many of the discovery

violations in the almost thirty cases cited in Tippet’s first motion for sanctions. The

prosecution did not contend that the magistrate’s previous orders mooted Tippet’s

sanctions motions or rendered consideration of the motions or the imposition of

sanctions unjust or unfair.

10 ¶22 The next day, at the March 31 sanctions hearing before the district court, the

defense reiterated that the prosecution was still in violation of the court’s order

granting defense motion D-9. Appearing for the People, Deputy Little indicated

that the office was beginning to overhaul its discovery system, and that it was the

support staff who caused the discovery “delays.” Staff, he asserted, mistakenly

believed that the office had received all the discovery from the investigating law

enforcement agencies. It had not, he admitted. As a result, no recordings, CAD

reports, or notes were requested from the four law enforcement agencies that

assisted the Fremont County Sheriff’s Department with the investigation into the

victim’s death until between March 22 and March 28.

¶23 Notably, the prosecution did not contend that the magistrate’s previous

orders mooted Tippet’s sanctions motions or rendered consideration of the

motions or the imposition of sanctions unjust or unfair.

¶24 The court granted Tippet’s motions requesting sanctions. In its order, the

court reviewed the People’s explanations for the discovery violations in this case

and found that they boiled down to “three primary problems”:

One, the District Attorney has changed the assigned prosecutor several times. Two, by failing to verify discovery was properly downloaded and disclosed, the District Attorney’s staff either acted negligently or lack adequate training with respect to the District Attorney’s obligation to disclose evidence timely to the defense. Third, the District Attorney has failed to communicate adequately with investigating law enforcement agencies to secure evidence promptly.

11 (Internal citations omitted.)

¶25 The court continued: “None of these problems is new. The District Attorney

has cited its problems with mistakes made by staff that have since left the District

Attorney’s employ in numerous cases since 2021.”

¶26 The court also considered twenty of the thirty cases Tippet identified as

indicative of the District Attorney’s “pattern and practice of neglect” of its

discovery obligations. The court agreed such a pattern existed, and that it

persisted despite the imposition of many and varied sanctions against the District

Attorney’s Office across multiple cases and even despite specific warnings about

the apparent lack of oversight and supervision in the District Attorney’s discovery

process. These cases, the court concluded, “reveal[ed] an urgent and serious need

for the District Attorney to modify its discovery practices.”

¶27 Based on these circumstances, the court determined that the least severe

sanction it could impose to deter continuing Rule 16 violations, while also

preserving the truth-seeking function of discovery, was to reduce the charge

against Tippet from first degree murder to second degree murder. The court

additionally directed the People to file an amended complaint consistent with the

court’s order.

¶28 The People then filed a petition invoking our original jurisdiction under

C.A.R. 21. We issued a rule to show cause.

12 II. Analysis

¶29 We begin by discussing our jurisdiction to hear this matter pursuant to

C.A.R. 21. Next, we detail the relevant standard of review and principles of law

governing criminal defendants’ discovery rights before trial and the power of

courts to issue sanctions for violations of those rights. We then apply these

principles to the matter before us, and conclude that under these specific facts, the

district court did not abuse its discretion when it sanctioned the People for their

ongoing pattern discovery violations by reducing the charge against Tippet from

first degree murder to second degree murder.

A. Original Jurisdiction

¶30 It is entirely within this court’s discretion to exercise original jurisdiction

pursuant to C.A.R. 21. See C.A.R. 21(a)(1) (“Relief under this rule . . . is a matter

wholly within the discretion of the supreme court.”); People v. Hernandez, 2021 CO

45, ¶ 13, 488 P.3d 1055, 1060. Specifically, “we have original jurisdiction to review

whether a trial court has abused its discretion in circumstances where the remedy

on appeal would be inadequate.” Hoffman v. Brookfield Republic, Inc., 87 P.3d 858,

861 (Colo. 2004). While challenges to discovery orders are traditionally reviewed

on appeal, it can nevertheless be appropriate to review such orders

“interlocutorily, by way of original proceeding, where the impact of the ruling

13 would be substantial and incurable at a later time.” People v. Lee, 18 P.3d 192, 196

(Colo. 2001).

¶31 The People argue that the exercise of original jurisdiction is appropriate in

this case because whether a trial court may reduce a defendant’s charges as a

discovery sanction presents an issue of first impression. They further contend that

the issue is one of public importance. See, e.g., Dwyer v. State, 2015 CO 58, ¶ 4,

357 P.3d 185, 187–88 (noting that this court “generally elect[s] to hear C.A.R. 21

cases that raise issues of first impression and that are of significant public

importance” (quoting In re Marriage of Wiggins, 2012 CO 44, ¶ 12, 279 P.3d 1, 5)).

We agree.

¶32 First, this court has never considered whether a trial court can reduce a

defendant’s charge as a deterrent discovery sanction. Second, reducing Tippet’s

charge could have a significant effect on the “prosecution’s ability to litigate the

merits of the case.” Lee, 18 P.3d at 196. Accordingly, we conclude that our exercise

of jurisdiction over this case pursuant to C.A.R. 21 is warranted.

B. Legal Framework and Standard of Review

¶33 Crim. P. 16(I)(a)(1) provides that “[t]he prosecuting attorney shall make

available to the defense . . . material and information which is within the[ir]

possession or control . . . concerning the pending case . . . .” This rule requires that

such information be produced “as soon as practicable but not later than 21 days

14 after the defendant’s first appearance at the time of or following the filing of

charges.” Crim. P. 16(I)(b)(1). Importantly, this duty does not depend on the

defendant having to first request the information. See People v. Dist. Ct., 790 P.2d

332, 337 (Colo. 1990) (“Crim. P. 16 as amended requires automatic disclosure of

the enumerated items regardless of whether the defense requests them.”). Rather,

the self-executing nature of Rule 16 imposes a responsibility on the prosecutor to

“ensure that a flow of information is maintained between the various investigative

personnel and his or her office sufficient to place within his or her possession or

control all material and information relevant to the accused and the offense

charged.” Crim. P. 16(I)(b)(4); see also People v. Adams Cnty. Ct., 767 P.2d 802, 804

(Colo. App. 1988) (“The policy reason for the change in Crim. P. 16 is to provide

for open file disclosure of such materials . . . .”).

¶34 In the event of a discovery violation, Rule 16(III)(g) provides that the trial

court “may order such party to permit the discovery or inspection of materials not

previously disclosed, grant a continuance, prohibit the party from introducing in

evidence the material not disclosed or enter such other order as it deems just under the

circumstances.” (Emphasis added.) Choosing an appropriate sanction for

discovery violations lies within the sound discretion of the trial court and will not

be overturned absent an abuse of discretion. People v. Daley, 97 P.3d 295, 298 (Colo.

App. 2004). This deferential standard of review applies because of “the

15 multiplicity of considerations involved and the uniqueness of each case.” Lee,

18 P.3d at 196.

¶35 That said, the trial court’s discretion in imposing a sanction for a discovery

violation is not unlimited. Id. We will reverse a trial court’s imposition of

discovery sanctions when they are “manifestly arbitrary, unreasonable, or unfair.”

People v. Castro, 854 P.2d 1262, 1265 (Colo. 1993) (quoting Nagy v. Dist. Ct., 762 P.2d

158, 161 (Colo. 1988)). In imposing discovery sanctions, the trial court must

exercise its discretion “with due regard for the purposes of the discovery rules

themselves and the manner in which those purposes can be furthered by discovery

sanctions.” Lee, 18 P.3d at 196.

¶36 We have previously explained that the purpose of the discovery process laid

out in Rule 16 “is to advance the search for truth.” People v. Dist. Ct., 793 P.2d 163,

168 (Colo. 1990). Sanctions for violating Rule 16 likewise serve the dual purposes

of “protecting the integrity of the truth-finding process and deterring discovery-

related misconduct.” Lee, 18 P.3d at 196. Though without “willful misconduct or

a pattern of neglect demonstrating a need for modification of a party’s discovery

practices, the rationale for a deterrent sanction loses much of its force.” Id. When

a deterrent sanction is inappropriate, “the goal must be to cure any prejudice

resulting from the violation.” Id. at 197.

16 ¶37 To address a Rule 16 violation, the trial court must strike a balance by

“impos[ing] the least severe sanction that will ensure that there is full compliance

with the court’s discovery orders.” Dist. Ct., 793 P.2d at 168. We have laid out

several factors that a court must consider when fashioning discovery sanctions:

“(1) the reason for and degree of culpability associated with the violation; (2) the

extent of resulting prejudice to the other party; (3) any events after the violation

that mitigate such prejudice; (4) reasonable and less drastic alternatives to

exclusion; and (5) any other relevant facts.” People v. Cobb, 962 P.2d 944, 949 (Colo.

1998). We most recently applied this framework in Lee, where the trial court

excluded DNA evidence as a discovery sanction. 18 P.3d at 194. We ultimately

concluded that the trial court’s sanction constituted an abuse of discretion,

reasoning that the record indicated that (1) the prosecutor’s violation of Rule 16

was not willful, (2) there was no need to deter future violations, (3) exclusion

would not cure any prejudice, and (4) a continuance could have been adequate to

cure any prejudice. Id. at 196–98.

¶38 While instructive, Lee and most of our other discovery sanction cases have

not involved challenges to deterrent sanctions imposed for willful misconduct or

pattern discovery violations. See Cobb, 962 P.2d at 949–50 (concluding that the trial

court abused its discretion by excluding a witness from testifying where the

defense failed to disclose a single witness before trial); Dist. Ct., 793 P.2d at 169

17 (concluding that the trial court’s discovery sanction was “not merited by the

possible deterrence of prosecutorial misconduct”).

¶39 Even so, we have long recognized in deterrent sanction cases that “the

exclusion of evidence or even complete dismissal can be proper remedies to assure

compliance with discovery orders.” Lee, 18 P.3d at 196; see, e.g., People v. Thurman,

787 P.2d 646, 655 (Colo. 1990) (holding the trial court did not abuse its discretion

by dismissing criminal charges pursuant to Crim. P. 16(III)(g) in response to the

prosecution’s willful and continuing refusal to disclose a confidential informant’s

address and place of employment notwithstanding a court order to do so); People v.

Dist. Ct., 664 P.2d 247, 252 (Colo. 1983) (approving the trial court’s sanction

excluding fingerprint evidence implicating the defendant where the district

attorney failed to comply with a specific discovery order or obtain the defendant’s

fingerprints for nearly nine months, causing a mistrial). Indeed, when a trial court

imposes a discovery sanction to deter future misconduct, the goal is to impose a

sanction that sufficiently encourages a “modification of a party’s discovery

practices.” Daley, 97 P.3d at 298–299 (holding that “[t]here was no showing of a

. . . need for deterrence, and therefore, the trial court should have considered only

curative sanctions”).

¶40 With these legal principles in mind, we now apply the law to the facts of this

case.

18 C. The District Court Did Not Abuse Its Discretion

¶41 The People do not dispute that they committed multiple discovery

violations in this case. Rather, they contend that (1) the district court erred by

finding that the prosecution engaged in a pattern of neglect, (2) they did not have

notice of the claim that a pattern of discovery violations existed, (3) the district

court’s sanction was too harsh for discovery violations that were not willful, (4) the

district court’s choice of sanction was not proper because Tippet was not

prejudiced by the discovery violations, (5) the district court’s sanction was an

abuse of discretion, and (6) the district court lacked the authority to reduce

Tippet’s charge.

1. A Pattern of Discovery Violations Existed

¶42 We first address the People’s contention that the district court erred by

finding that the District Attorney’s Office engaged in a pattern of discovery

violations.

¶43 In its order, the court examined twenty of the almost thirty cases Tippet

identified as evidence of the District Attorney’s Office’s ongoing pattern of Rule 16

discovery violations. These included cases dating back to July 2021 and

continuing up to the date of the sanctions hearing in which various judges sitting

in the Eleventh Judicial District made explicit findings about the District

Attorney’s Office’s serious and ongoing lack of compliance with its discovery

19 obligations. The twenty cases illustrate, among other things, multiple significant

discovery violations by the District Attorney’s Office; explicit warnings from

various judges that a pattern of neglect was emerging or had emerged; a lack of

understanding by prosecutors regarding their Rule 16 obligations; an apparent

lack of oversight by the District Attorney in the face of significant continuing

discovery problems; and a pattern by the District Attorney’s Office of dismissing

cases when faced with discovery sanctions.

¶44 These cases also demonstrate that beginning in July 2021, five different

judicial officers sitting in the Eleventh Judicial District entered orders finding that

the District Attorney’s Office had engaged in a pattern of discovery violations, and

imposed deterrent sanctions including bond reductions, exclusion of

late-disclosed evidence, exclusion of expert witness testimony, and ultimately,

reduction in charges. A small sample of these orders includes:

• In July 2021, a judge in a vehicular eluding case cautioned that a pattern of discovery violations was starting to form and warned that the court would impose sanctions if the pattern continued.

• A few months later, a judge in a homicide case found that “[i]t is clear to this Court there is a pattern of discovery violations in this case attributable to the People. . . . These violations continue and are ongoing . . . .” The court ultimately excluded ten of the prosecution’s endorsed expert witnesses from testifying. Following the court’s order, the prosecution moved to dismiss the case.

• In September 2021, a judge presiding over a homicide case found that the District Attorney’s Office had engaged in a pattern of discovery

20 violations and that the discovery violations amounted to gross negligence. The court sanctioned the prosecution by excluding the testimony of one expert witness, reducing the defendant’s charge from a class 1 felony to a class 2 felony, and granting a continuance. The court subsequently excluded additional late-disclosed evidence based on the prosecution’s additional failure to comply with Rule 16.

• Several months later, in a case involving allegations of sexual exploitation of a child, a judge found that “there is an apparent lack of oversight and supervision in the discovery process within the Office of the District Attorney.” The court then warned that the “lack of oversight comes dangerously close to a pattern of neglect that may well result in a finding of a pattern of discovery [violations] in the future if it continues.” When the defense filed a second motion alleging additional discovery violations, the prosecution moved to dismiss all charges.

• Just a week later, a judge presiding over a sexual assault case questioned the prosecution about why discovery violations kept happening “over and over and over again,” and raised concerns that “this is a managerial problem and nobody’s looking at this stuff until the last minute.” The prosecutor, who was covering for the assigned prosecutor that day, responded, “When I do a request, I assume that the law enforcement agency is sending it over.” The court instructed the prosecutor, “[Y]ou can’t assume.” After finding that the defendant was prejudiced by the late disclosures, the court sanctioned the prosecution and reduced the defendant’s bond to a $10,000 personal recognizance bond.

• In a case involving alleged sexual assault, the judge presiding over the case found that the prosecution violated Rule 16 and had engaged in a pattern of Rule 16 violations that prejudiced the defendant. The court sanctioned the prosecution by reducing the defendant’s $5,000 cash only bond to a $5,000 personal recognizance bond.

• In a case involving allegations of sexual assault committed against children, the judge presiding over the case found that the prosecution had violated Rule 16, that the defendant suffered prejudice, and that the District Attorney’s Office had engaged in a pattern of Rule 16 violations.

21 The court sanctioned the prosecution by ordering the reduction of the top charges in the case from class 3 felonies to class 4 felonies.

¶45 These cases illustrate a pattern of ongoing and significant discovery

violations that persisted over a lengthy period of time despite the imposition by

various judges of many and varied sanctions against the District Attorney’s Office.

These violations continued in Tippet’s case due to a long-established pattern in

which the District Attorney’s Office failed to exercise adequate oversight and

supervision over its discovery process. In light of these circumstances, we cannot

conclude that the district court abused its discretion by determining that the

District Attorney’s Office engaged in a pattern of Rule 16 discovery violations.

2. The People Had Notice of Their “Pattern of Discovery Violations”

¶46 Next, the People contend that they were not given an adequate opportunity

to argue that the other cases represented isolated events with “no logical

connection.” We are not persuaded.

¶47 The District Attorney’s Office had notice and an opportunity to litigate

whether the discovery violations in each of the twenty cases considered by the

district court supported finding a pattern of neglect. First, it received notice on

March 6, when Tippet moved for discovery sanctions and identified each of those

cases as illustrative of the Office’s pattern of neglect. Indeed, not only did the

22 People have notice, but they filed a motion responding to this motion for sanctions,

arguing that the other cases were too dissimilar to establish a pattern.

¶48 Second, the record shows that the district court explicitly gave the People

an opportunity to litigate this point. At the beginning of the sanctions hearing, the

court said, “[B]efore we get into the specific nature of the sanctions, the Defense is

arguing a pattern. Do you want to be heard on that?” The prosecution argued

that the cases did not establish a pattern, but the court rejected its argument. Thus,

we disagree with the District Attorney’s Office that it was not afforded an

adequate opportunity to respond to Tippet’s assertion that the cited cases reflected

a pattern of discovery violations.

¶49 The People next assert that they don’t know what a “pattern” means in the

context of discovery violations, and that the district court should have held a

separate hearing, apart from the sanctions hearing, to define what “pattern”

means. They contend that, because “pattern of discovery violations” has not been

defined by the appellate courts, it has “no objective meaning associated with it.”

The People further ask that we adopt their definition of “pattern of discovery

violations,” and limit the imposition of deterrent sanctions to those cases which

involve (1) the same prosecuting attorney; (2) the same type of discovery violation;

(3) an office policy of withholding evidence; and/or (4) actions in combination that

23 are so egregious and reflect a “repeated sloppiness” that rise to the level of

withholding evidence.

¶50 We decline to adopt this definition for two reasons. First, the term “pattern”

already has a generally understood meaning. See Pattern, Black’s Law Dictionary

(11th ed. 2019) (defining pattern as a “mode of behavior or series of acts that are

recognizably consistent”). Second, their proposed definition significantly

misstates the District Attorney’s Office’s obligations under Rule 16. To be sure,

individual prosecutors are bound by Rule 16, but the People’s proposed definition

disregards the responsibility an elected district attorney has to oversee and

supervise the office’s discovery process. The exceptionally narrow definition

offered by the People would relieve a district attorney of those responsibilities

even when it is apparent that there are systemic problems in the office’s discovery

process. It would also make it too easy for pattern discovery violations to

repeatedly occur without consequence. Such a standard is plainly at odds with

the purpose of deterrent discovery sanctions, which is to sufficiently encourage a

“modification of a party’s discovery practices.” Daley, 97 P.3d at 298.

¶51 For these reasons, we decline to adopt the pattern definition suggested by

the District Attorney’s Office and conclude it had adequate notice regarding the

claims that it engaged in a pattern of discovery violations.

24 3. The District Court Properly Sanctioned for Deterrence Purposes

¶52 The People next contend that the district court’s sanction was too harsh for

discovery violations that were not willful. They assert that “[t]he most severe

sanctions are reserved for conduct that is willful,” and that the district court did

not find that their discovery violations were willful. We disagree, both because

this argument misapprehends the difference between deterrent and curative

sanctions and misconstrues the basis for the district court’s order.

¶53 As noted, discovery sanctions serve the dual purposes of “protecting the

integrity of the truth-finding process and deterring discovery-related

misconduct.” Lee, 18 P.3d at 196. Fashioning a sanction for the purpose of

deterrence is appropriate where the district court finds either “willful misconduct

or a pattern of neglect demonstrating a need for modification of a party’s discovery

practices.” Id. (emphasis added). Here, the district court made detailed findings

regarding twenty of the almost thirty prior discovery violation cases that Tippet

identified in his first motion to dismiss, concluding that the “pattern of neglect

reveal[ed] an urgent and serious need for the District Attorney to modify its

discovery practices.”

¶54 The district court explicitly discussed the difficulty it once again faced in

fashioning sanctions to deter future Rule 16 violations by the District Attorney’s

Office, while also preserving the truth-seeking function of discovery. After

25 emphasizing that “[p]reviously imposed sanctions have not proven effective in

spurring the District Attorney to remedy its pattern of neglect,” the court

ultimately concluded that the least severe sanction it could impose to deter

continuing Rule 16 violations, while also preserving the truth-seeking function of

discovery, was to reduce Tippet’s first degree murder charge to second degree

murder.

¶55 So while the People are correct that the district court did not make an explicit

finding of willfulness, the protracted, ongoing pattern discovery violations, in the

face of repeated admonishments from the court about the systemic lack of

oversight and supervision in the District Attorney’s Office’s discovery process,

could certainly be considered willful.

¶56 And in any event, the People’s argument misses the mark because the court

had an alternative basis to impose a deterrent sanction: to encourage the District

Attorney’s Office to modify its discovery practices.

4. Tippet Suffered Prejudice as a Result of the Discovery Delays

¶57 Next, the People contend that the district court’s choice of sanction was

improper because Tippet was not prejudiced by the discovery violations. They

argue that the violations could not have prejudiced Tippet given what they

describe as a short delay in the setting of the preliminary hearing. Again, we are

not persuaded.

26 ¶58 The district court concluded that the discovery violations “affected the

defendant’s rights to effective assistance of counsel, to confrontation, and to due

process.” Specifically, the court found that the late disclosures “prevented defense

counsel from conducting a thorough investigation of the facts.” This, in turn,

delayed setting the preliminary hearing.

¶59 The district court did not abuse its discretion by reaching this conclusion.

Defense counsel filed a request to set a preliminary hearing on January 8. Until

shortly before the sanctions hearing on March 31, Tippet had not received 85% of

the outstanding discovery, most of which was created back in January 2023, either

before or shortly after Tippet asked the magistrate to set a preliminary hearing.

Documents and materials not timely produced included Tippet’s alleged

voicemails to a witness, his interrogation, the coroner report, the autopsy and

toxicology reports, surveillance footage of Tippet, nearly all photographs of the

crime scene and vehicles, nearly all reports and body-worn camera video from five

of the investigating agencies, a witness interview, and evidence summary reports.

¶60 Because of the People’s discovery violations, Tippet was forced to choose

between his right to “receive a preliminary hearing within a reasonable time” and

his counsel’s ability to review the evidence and adequately prepare for that

hearing. Crim. P. 5(a)(2)(VIII). And, notably, on the date of the sanctions

hearing—some fifty-one days after the Rule 16(I)(b)(1) deadline—and following

27 multiple hearings dominated by discussions regarding the People’s discovery

violations, the District Attorney’s Office still had not met all of its discovery

obligations.

¶61 We are not persuaded by the People’s argument that the district court’s

choice of sanction was improper because Tippet was not prejudiced. To be sure,

the prejudice to Tippet of these discovery violations at this early stage of the

proceeding is different than the prejudice a defendant faces when significant

discovery violations occur shortly before or during trial. But it is prejudice. And

recall, the district court was not weighing the imposition of a curative sanction.

Rather, the court was considering Tippet’s request for a deterrent sanction.

Having found a long-standing history of pattern discovery violations, the court’s

goal was not simply to cure the prejudice resulting from the violations in this case,

but instead was to encourage the District Attorney’s Office to finally commit the

managerial, supervisory, and training resources necessary to resolve its

intractable, systemic pattern of discovery violations. See Daley, 97 P.3d at 299

(holding “[t]here was no showing of a . . . need for deterrence, and therefore, the

trial court should have considered only curative sanctions”).

¶62 But what about the People’s argument that Tippet was not prejudiced

because he confessed, and they produced the confession? We flatly reject this

reasoning. Rule 16(I)(a)(1)’s obligations are self-executing no matter the

28 circumstances. The prosecution is not entitled to disregard its discovery

obligations because it believes it has a strong case.

¶63 For these reasons, we conclude that the district court did not abuse its

discretion by concluding that Tippet was prejudiced by the District Attorney’s

Office’s discovery violations.

5. The District Court Did Not Abuse Its Discretion

¶64 Next, we consider whether the district court’s choice of sanction was an

abuse of discretion. Under the abuse of discretion standard, a reviewing court

doesn’t ask whether it would have ruled as the trial court did, but instead

considers “whether the trial court’s decision fell within a range of reasonable

options.” Churchill v. Univ. of Colo. at Boulder, 2012 CO 54, ¶ 74, 285 P.3d 986, 1008

(quoting E-470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230–31 (Colo. App.

2006)).

¶65 Here, the court had limited options from which to select an appropriate

sanction to serve the dual purposes of “protecting the integrity of the truth-finding

process and deterring discovery-related misconduct.” Lee, 18 P.3d at 196. First,

ordering a continuance would not have served either purpose. It would not have

remedied prejudice to Tippet because the delay in the proceedings was the source

of the prejudice. Nor would a continuance have served as a deterrent: Granting a

delay due to this type of ongoing pattern discovery violation is no deterrent at all.

29 ¶66 Second, while the court could have reduced Tippet’s bond, history indicated

that this approach had not worked to modify the District Attorney’s Office’s

oversight of its discovery practices.

¶67 Third, given the nature of the evidence contained in the delayed discovery,

ordering the exclusion of any late-disclosed evidence could have forced the

District Attorney’s Office to voluntarily dismiss the charges against Tippet

entirely. On these facts, exclusion would have been an extreme remedy that would

not have furthered the search for the truth. See Cobb, 962 P.2d at 949 (“[E]xclusion

is a drastic remedy and therefore is strongly disfavored, especially since in many

cases it may well determine the outcome of the trial.”); see also Lee, 18 P.3d at 197

(“[A] trial court should avoid excluding evidence . . . because the attendant

windfall to the party against whom such evidence would have been offered

defeats, rather than furthers, the objectives of discovery.”).

¶68 Fourth, a complete dismissal of the case would have been the most severe

sanction, and like the exclusion of evidence, would not have served the truth-

seeking purpose of the criminal justice system. See Daley, 97 P.3d at 298

(“Dismissal is a drastic sanction . . . usually beyond the discretion of the trial

court.”).

¶69 Moreover, the district court found that “[p]reviously imposed sanctions

[had] not proven effective in spurring the District Attorney to remedy its pattern

30 of neglect.” Thus, it was reasonable on these specific facts for the district court to

conclude that its choice of sanction was the “least severe sanction that [would]

ensure . . . full compliance with the court’s discovery orders.” People v. Dist. Ct.,

808 P.2d 831, 836–37 (Colo. 1991) (citing Dist. Ct., 793 P.2d at 168). We are mindful

that reducing a murder charge is an exceptionally severe sanction. Like dismissal,

reducing charges should be a disfavored remedy reserved for rare cases. People ex

rel. Gallagher v. Dist. Ct., 656 P.2d 1287, 1293 (Colo. 1983).

¶70 However, given the court’s findings that the violations in this case continue

the District Attorney’s Office’s two-year long pattern and practice of neglect of its

discovery obligations that has persisted, notwithstanding repeated admonitions

by multiple judicial officers in the Eleventh Judicial District, and the imposition of

many and varied sanctions against the office in numerous documented cases, we

cannot conclude that the court abused its discretion by reducing the charge as a

deterrent sanction.

6. The District Court Possessed Authority to Reduce Charges as a Discovery Sanction

¶71 Finally, the People contend that the district court lacked the authority to

reduce the charge as a sanction for their discovery violations. As outlined above,

district courts have broad discretion to impose sanctions for discovery violations.

See Lee, 18 P.3d at 196 (“Because of the multiplicity of considerations involved and

the uniqueness of each case, great deference is owed to trial courts” in their

31 decisions to impose discovery sanctions.). Such discretion includes, on rare

occasions, dismissing individual counts or even all charges against a defendant for

willful or pattern discovery violations. See Thurman, 787 P.2d at 655–56 (affirming

the trial court’s dismissal of the defendant’s charge as a Rule 16 discovery sanction

for the prosecution’s refusal to disclose information about their confidential

informant); see also People v. Alberico, 817 P.2d 573, 576 (Colo. App. 1991) (“While it

is true that the dismissal of a criminal charge is the most severe sanction,

nevertheless, the nature of the sanctions to be imposed for failure to comply with

Crim.P. 16 generally rests within the trial court’s sound discretion.”).

¶72 We conclude in this context that the greater power to dismiss a charge

includes the lesser power to reduce a charge. See People v. Severin, 122 P.3d 1073,

1074 (Colo. App. 2005) (“In reducing a charge . . . a court in effect dismisses the

greater charge and substitutes a lesser one.”). The People concede as much,

acknowledging that appellate courts have occasionally upheld dismissal as a

discovery sanction. But they maintain that what the court did in this case is legally

distinct. They assert, for the first time in their petition, that the district court’s

order violated the separation of powers doctrine because the decision to file

charges is within the discretion of the district attorney, a member of the executive

branch. We reject this claim for two reasons.

32 ¶73 First, because the People failed to raise their separation of powers argument

before the district court, they have waived the issue. See Hernandez, ¶ 35, 488 P.3d

at 1063 (finding waiver in the Rule 21 context where the defendant failed to raise

his public trial claim before the trial court). Second, it was, in any event, the district

court that reduced the charge. Contrary to the People’s argument, the court did

not order the prosecution to reduce the charge. Rather, it reduced the charge and

directed the prosecution to file an amended complaint conforming to the court’s

order. Thus, the district court acted within the scope of its authority by reducing

Tippet’s murder charge as a deterrent sanction.

III. Conclusion

¶74 For the foregoing reasons, we conclude that the district court did not abuse

its discretion by reducing the charge against Tippet as a deterrent discovery

sanction and directing the District Attorney’s Office to file an amended complaint

consistent with the court’s order. Accordingly, we discharge the rule to show

cause.

JUSTICE SAMOUR, joined by CHIEF JUSTICE BOATRIGHT and JUSTICE

MÁRQUEZ, dissented.

33 JUSTICE SAMOUR, joined by CHIEF JUSTICE BOATRIGHT and JUSTICE

MÁRQUEZ, dissenting.

¶75 “And now . . . the rest of the story.”1

¶76 I write separately not so much because of what the majority says but because

of what the majority doesn’t say. There is no dispute that there were discovery

violations by the prosecution here. Nor can anyone objectively disagree that this

District Attorney’s Office has consistently struggled to provide discovery in a

timely manner. Under the circumstances, it is understandable that defense

counsel, the magistrate, and the district court judge expressed frustration. But

that’s not the end of the story.

¶77 On March 22, 2023, following several hearings during which the

prosecution’s discovery obligations were discussed, the magistrate imposed a final

discovery deadline and announced that there may be sanctions if the prosecution

failed to comply with it. Here’s what the magistrate said:

I’m going to set this over for seven days to next week, next Wednesday[, March 29], and if you have not provided all of the discovery that’s required under the rule at that time, I’m going to set a sanctions hearing in Division 1 with Judge Turner. And you risk then . . . the

1 “The Rest of the Story,” a Monday-through-Friday radio program that aired

between 1976 and 2009, was hosted by famed commentator Paul Harvey. See The Rest of the Story (ABC Radio Networks broadcast May 10, 1976). In each program, Harvey told a story about a little-known or forgotten matter, leaving an important and usually surprising nugget of information until the end. Id. As every episode unfolded, Harvey encouraged his audience to stay tuned for “the rest of the story.”

1 sanction[] of possibly a lesser charge being filed or something like that.

But you have to do your job. You simply have to do it . . . . And you’re going to do it, and you’re going to do it by next week, and if it’s not done, then the sanctions hearing will be set.

(Emphases added.) The next day, March 23, the magistrate followed up with a

written order requiring the prosecution to “file a written certification . . . certifying

that they have discovered all evidentiary materials in this case, within their

possession or control, as set forth in Part I, Rule 16, [of the] Colorado Rules of

Criminal Procedure.” The magistrate further instructed the parties to be available

on Friday, March 31, at 2:00 p.m., in case he later determined that a sanctions

hearing in front of the district court judge was necessary.

¶78 On March 28, before the deadline imposed by the magistrate expired, the

prosecution filed a “Compliance Certificate.” The prosecution represented that it

had now discovered all documentary and media evidence in the possession or

control of every law enforcement agency involved in the investigation of this case:

the Fremont County Sheriff’s Office, the Chaffee County Sheriff’s Office, the

Cañon City Police Department, the Salida Police Department, and the Colorado

State Patrol. Per the Compliance Certificate, each of these agencies had confirmed

that all “non-physical evidence . . . in their possession or control” had been

produced. All told, the prosecution had provided over 1,100 additional pages or

items of discovery since March 22—prior to that, the prosecution had provided

2 190 pages or items of discovery. The Compliance Certificate did indicate that the

prosecution was still awaiting “a response” from FRECOM, the Fremont County

Communications entity that manages dispatch recordings, although some files

from that entity had already been received and produced.

¶79 The defense submitted a response the same day complaining that the

Compliance Certificate demonstrated the prosecution had withheld

approximately 85% of the discovery until the last six days. Further, defense

counsel asserted that he believed the law enforcement agencies involved in this

case still had “correspondence” with the prosecution and “police notes” that

needed to be disclosed.

¶80 At the hearing held the next day, March 29, the prosecutor stressed that, as

reflected in the Compliance Certificate, his office had contacted every law

enforcement agency involved in this case “to say, ‘here’s a list of everything we’ve

received; do you have literally anything else?’” And, he continued, “they’ve all

said ‘no.’” The prosecutor did acknowledge one exception, FRECOM, but he was

expecting that FRECOM would respond later that day.

¶81 Importantly, defense counsel stated that he was satisfied that he had now

received the bulk of the discovery in this case. Additionally, he clarified that he

had not requested a personal recognizance bond for his client. Instead, he

explained, he’d moved for sanctions and left it “to th[e] court’s discretion to

3 consider a personal recognizance bond if the discovery violations continue to

persist.” After confirming receipt of the Compliance Certificate and informing the

court that he and the prosecutor had engaged in a fruitful conversation about the

case (their first in-person conversation about the case), defense counsel reiterated

that he was “leav[ing] it to th[e] court’s discretion as to what is set next.” He

specifically indicated that, while he was aware of the placeholder sanctions

hearing set two days later in front of Judge Turner, he was “leav[ing] it in th[e]

court’s discretion as to what th[e] court wants to do.”

¶82 Defense counsel didn’t repeat the complaint he’d included in his response

the previous day about the prosecution’s delay in producing approximately 85%

of the discovery. The magistrate nevertheless decided to confront the prosecutor

precisely about that complaint:

I guess the question that I have is that in the past seven days now, since the last order was issued, by my calculation the [prosecution] has now produced an additional 1,159 pages of discovery . . . , which represents 85% of the discovery. And so my question is, did you have it and then produce it in the last seven days or did you have to go get it?

¶83 The prosecutor responded that his office “had to go get” the discovery

recently produced. He stated that his office had requested these materials from

the multiple law enforcement agencies in question but had not received them until

recently. The magistrate then asked if this was “indicative of a systemic problem.”

Initially, the prosecutor said he couldn’t comment on that question, but he later

4 told the court that he didn’t know the answer. Although defense counsel opined

that this was a systemic problem, he again left it to the court’s discretion as to how

to proceed. The magistrate ultimately said that he was “glad . . . this information

was produced” and that the case would now be “moving forward.” But because

he was concerned about the timeliness of the discovery recently produced, he felt

it was appropriate for the district court judge “to at least weigh in on what her

expectations are going forward” and to decide “[w]hether . . . to take any action at

this time.”

¶84 No one mentioned the reduction of charges as a potential sanction at any

point during the March 29 hearing. In fact, defense counsel told the court that,

after the “helpful” conversation he and the prosecutor had just had, he was

confident they would work well together and communicate effectively moving

forward, so it was “likely[] this case [was] going to go better now.” The prosecutor

echoed that sentiment. And defense counsel repeatedly said he was leaving it to

the court’s discretion to decide how to proceed vis-à-vis the placeholder sanctions

hearing set two days later.

¶85 Yet, following the March 31 hearing, the district court judge imposed one of

the most severe sanctions available. She reduced the main charge from murder in

the first degree to murder in the second degree. In describing this as “the least

severe sanction” that could have been imposed to deter continuing Rule 16

5 violations, the district court judge overlooked the severity of a charge reduction.

That type of severe sanction should be reserved for the rarest of situations. Had

the district court judge reduced the primary charge here after finding that the

prosecution failed to meet the March 29 deadline imposed by the magistrate on March 22,

perhaps I wouldn’t be writing separately. As it is, though, the record contains no

such finding.2 Instead, the district court judge imposed sanctions for (1) violations

of “Rule 16 . . . with respect to disclosures . . . made after February 8, 2023, of items

that were in the possession of law enforcement agencies before then”; and (2) a

pattern of such violations that existed at that time despite “many and varied

sanctions” in other cases. (Emphases added.)

¶86 Notably, in her brief before us, the district court judge does not attempt to

justify the sanction imposed based on a violation of the March 29 deadline. In fact,

the district court judge doesn’t even mention that the prosecution failed to comply

with that deadline. No, the district court judge admits that she sanctioned the

prosecution because of the discovery violations that occurred as of February 8 and

the pattern of discovery violations that existed at that time.

2 At the March 31 sanctions hearing, defense counsel reiterated that he was still

missing some “police notes” and some “correspondence” between law enforcement and the prosecution. But that discovery was required by the January 28, 2023 order, not Crim. P. 16, and the district court judge’s sanction was based on the prosecution’s violation of Crim. P. 16. In any event, the court gave the prosecution until April 5 to comply with the January 28 order, and the prosecution appears to have done so.

6 ¶87 I understand that the February 8 deadline is rooted in Crim. P. 16. And I

accept the district court judge’s finding of a pattern of discovery violations. But

on March 22, the magistrate conveyed to the prosecution, in no uncertain terms,

that it needed to comply with the March 29 deadline to avoid sanctions. The

prosecution appears to have done so. What gives, then? The February 8 deadline

to which the sanctions were anchored had already come and gone when the

magistrate gave the prosecution until March 29 to produce all the discovery.

Given the prosecution’s apparent compliance with the magistrate’s March 29

deadline, how is the district court judge’s sanction fair?

¶88 The prosecutor was understandably surprised at the March 31 hearing

when the district court judge indicated she was considering a sanction. Although

the prosecutor recognized the magistrate had decided the March 31 hearing

should go forward, he noted that he had complied with the March 29 deadline set

on March 22:

[T]he request [by] Magistrate Meyrick was to be compliant with discovery by Wednesday [March 29]. And then depending on the status of that compliance, whether a hearing would be set. There wasn’t an indication from Magistrate Meyrick that he believed we were non-compliant . . . .

¶89 The prosecutor was spot-on. When a judicial officer tells a party that it must

comply with a deadline or there may be sanctions, and the party then proceeds to

comply with that deadline, it is an abuse of discretion for the judicial officer to

7 impose sanctions anyway. If that’s not an abuse of discretion, I’m not sure what

is.

¶90 The sense I get from reviewing this record (especially the transcripts of the

hearings) is that the judicial officers in question were at their wits’ end with this

District Attorney’s Office and wanted to send a message that would finally be

effective. They were looking for an opportunity to impose a severe sanction.

Having sat on a trial court for many years, I understand their frustration. But that

doesn’t justify the severe sanction handed out here, which seems capricious and

forced.

¶91 I worry about the optics of that sanction under the circumstances in which

it was imposed. And I worry about the precedent today’s decision may

inadvertently set. Because there was no finding that the prosecution failed to

comply with the March 29 deadline, the charge of murder in the first degree should

not have been reduced. This is especially so given that defense counsel didn’t

actively advocate for a sanction on March 29; instead, he left the matter in the

court’s discretion, explaining that he finally had all the discovery covered by Crim.

P. 16, that he and the prosecutor had just had a very productive conversation about

the case, and that he was feeling optimistic about how the case would proceed

moving forward. Why the magistrate didn’t simply vacate the placeholder

sanctions hearing at that point in time is not clear from the record.

8 ¶92 The severe sanction imposed here was particularly improper given that this

case is in its infancy. As the district court judge herself recognizes in the brief

before us, our cases approving severe sanctions deal with late-breaking

violations—whether shortly before trial or during trial—that are very prejudicial

to the defendant. Contrary to the district court judge’s contention, our legal

framework doesn’t “overlook[] early-stage discovery obligations.” Rather, we

haven’t seen fit to affirm severe sanctions for violations of early discovery

obligations because such violations are generally not prejudicial to a defendant.

¶93 Our jurisprudence makes clear that a severe sanction like reduction of

charges should rarely be imposed—and should be imposed only when absolutely

necessary. See People v. Dist. Ct., 793 P.2d 163, 168 (Colo. 1990) (“When a party

violates Rule 16, we believe the court should impose the least severe sanction that

will ensure that there is full compliance with the court’s discovery orders.”);

People v. Roan, 685 P.2d 1369, 1371 (Colo. 1984) (comparing “reduction of the

charges” to “dismissal,” stating that it is a “drastic” sanction, and holding that it

was “more severe than was necessary”); Kallas v. Spinozzi, 2014 COA 164, ¶¶ 16,

37, 342 P.3d 607, 610, 613 (noting that a “severe sanction,” such as “striking [an]

expert,” should only be imposed in “rare cases with extreme circumstances”). This

type of sanction, while aimed at the District Attorney’s Office, actually punishes

the victims—unfairly so—because it robs them of their right to seek justice for the

9 alleged crime. It also stymies the mission of our criminal justice system to hold

accountable those who commit crimes. Inasmuch as the prosecution obviously

believes that Tippet committed the crime of murder in the first degree, he ought

to stand charged of murder in the first degree. He shouldn’t get a freebie by

having the charge lowered to murder in the second degree, especially when the

District Attorney’s Office appears to have complied with the final discovery

deadline imposed by the magistrate.

¶94 Don’t get me wrong—sanctions have a place in our criminal justice system,

including for discovery violations. But here, the magistrate told the prosecution

that it had until March 29 to comply with its discovery obligations or sanctions

could be imposed, and the prosecution appears to have met that deadline.

Therefore, it was clearly an abuse of discretion for the court to impose sanctions.

¶95 This sanction was utterly unjust. I therefore respectfully dissent.

¶96 “And now you know the rest of the story.”3

I am authorized to state that CHIEF JUSTICE BOATRIGHT and JUSTICE

MÁRQUEZ join in this dissent.

3 See supra note 1.