Peo v. Burney

Opinion

25CA2112 Peo v Burney 07-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA2112 Douglas County District Court No. 24CR940 Honorable Daniel Warhola, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Dontae Lahmar Burney,

Defendant-Appellee.

ORDER AFFIRMED

Division II Opinion by JUDGE BROWN Harris and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026

George Brauchler, District Attorney, Megan Rasband, Chief Deputy District Attorney, Danielle Jaramillo, Chief Deputy District Attorney, Lauren Raible, Deputy District Attorney, Castle Rock, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Bryan Kirkland Hall, Deputy State Public Defender, Castle Rock, Colorado, for Defendant-Appellee ¶1 The District Attorney for the Twenty-Third Judicial District

appeals the district court’s order dismissing ten charges against

defendant, Dontae Lahmar Burney, as a sanction for discovery

violations. We affirm.

I. Background

¶2 In September 2024, the prosecution charged Burney with

sixteen counts of assault, child abuse, and menacing, naming his

former girlfriend, Amber Lynn, and her four children as victims.

Later that month, the prosecution successfully moved to add

another child abuse charge. From September to November, the

prosecution continued to investigate and disclose materials to

defense counsel. In November, the prosecution successfully moved

to add two additional assault charges and one additional child

abuse charge. Throughout April and May 2025, the prosecution

disclosed additional materials to defense counsel, including police

reports from June 27 and September 8, 2024, when Lynn reported

that she believed Burney had tampered with the lug nuts on her car

in retaliation for his arrests on the charges in this case.

¶3 On May 9, 2025, the prosecution moved to add ten additional

assault and child abuse counts. The prosecution also moved to

1 continue the jury trial due to witness availability. On May 12,

defense counsel moved to continue a motions hearing to allow him

time to review the most recently disclosed discovery. After a

hearing held two days later, the district court continued the

motions hearing, set a new trial date for November, and granted the

prosecution’s motion to add counts, bringing the total number of

charges against Burney to thirty.

¶4 A couple weeks before trial, defense counsel moved for

sanctions, alleging that the prosecution had committed fifty-two

Crim. P. 16 violations by failing to timely disclose materials and

information. The motion detailed the date of each delayed

disclosure and identified the discovery packet number or witness

endorsement involved.

¶5 After a hearing, the district court determined that the

prosecution had committed all fifty-two Crim. P. 16 violations. As

relevant to this appeal, the court found that alleged violations 2-18,

21-25, and 42, which included the reports concerning lug nut

tampering, involved “impeachment evidence of the victim” that

should have been disclosed under Brady v. Maryland, 373 U.S. 83

(1963), and that was “relevant and related to this case” under Crim.

2 P. 16(I)(a)(1). The court also found that the redaction of a forensic

interview, violation 43, was a “willful violation” of the prosecution’s

obligations under Crim. P. 16, although it declined to find that the

individual prosecutors engaged in willful conduct based on their

representation that a paralegal had made the redaction. And the

court found that the prosecution had engaged in a pattern of

neglect — based on fifty-two discovery violations in six months —

and that Burney had been prejudiced by the “continued late

disclosures.”

¶6 Based on the totality of the circumstances, the court

dismissed counts twenty-one through thirty as a deterrent sanction.

Notwithstanding the sanction, the prosecution asked that it be

allowed to use the evidence related to the dismissed charges as CRE

404(b) evidence, and the court initially granted the request.

¶7 The next day, the court issued a written order memorializing

its oral ruling. It clarified that it had found both a pattern of

neglect reflected in the fifty-two discovery violations and a willful

violation of Crim. P. 16 due to the prosecution’s redaction of the

forensic interview. It also reversed its ruling allowing the

prosecution to introduce evidence related to the dismissed charges

3 as CRE 404(b) evidence, reasoning that allowing the prosecution to

do so would undermine the deterrent sanction.

¶8 The prosecution moved the court to reconsider its ruling. The

court addressed the motion on the morning of the day Burney’s jury

trial was supposed to begin. The court supplemented its earlier

ruling but declined to reconsider it, and the prosecution

immediately filed this appeal.

II. Analysis

¶9 The People contend that the district court erred by

(1) concluding that the forensic interview redaction (violation 43)

was a Brady violation; (2) determining that the lug nut investigation

information (violations 2-18, 21-25, and 42) constituted

impeachment evidence that the prosecution failed to timely disclose

under Brady and Crim. P. 16(I)(a)(1); and (3) imposing a sanction

that was too severe.

¶ 10 We reject the People’s first contention because the court never

determined that the redaction amounted to a Brady violation.

Regarding the remaining contentions, the People concede that

“there are numerous violations [they] don’t challenge on appeal”

and argue that “[w]hether it’s [fifty-two] violations, [fifty-two]

4 violations minus the lug nut investigations, or another number

calculated a different way, the court’s sanctions are too severe.”

But we conclude that the court would have imposed the same

sanction, even if the prosecution had committed only the twenty-

nine violations that are not challenged on appeal. And we conclude

that the sanction was not an abuse of discretion. So we need not

address the People’s second contention on the merits because, even

assuming the court erred, any error was harmless. See Crim. P. 52

(we disregard any error that does not affect substantial rights).

A. The District Court Did Not Find that the Redaction Was a Brady Violation

¶ 11 The People contend that the district court erred by concluding

that violation 43, the redaction of a forensic interview, was a Brady

violation. But as Burney argues, the court made no such

determination as to violation 43. Instead, the court determined that

the redaction violated Crim. P. 16(I)(a)(1).

¶ 12 At the Crim. P. 16 motions hearing, the court said it “didn’t

like the optics” of the redaction and warned that the prosecution

should be careful going forward “to not redact discovery before

giving it to [d]efense.” It said, “[T]hat’s asking for Rule 16 violations

5 and Brady violations.” The court determined that the redaction was

“a technical violation” of Rule 16. The court acknowledged that the

redaction was of an address that was later subject to a protective

order, but it reasoned that the prosecution should have

communicated with defense counsel about it and that it was “still

technically a Rule 16 violation.” After the prosecutor explained that

a paralegal had redacted the interview, the court said it could not

find that the redaction was willful. But after the hearing, the court

issued a written order clarifying that it had found “a willful violation

of Crim. P. 16 due to the [district attorney’s] [o]ffice purposefully

redacting discovery prior to its disclosure to defense [counsel]

without notifying defense [counsel] or the [c]ourt of the redaction.”

¶ 13 On the morning of the scheduled trial, the prosecution moved

the court to reconsider its sanctions and sought clarification

regarding whether the court had found that the redaction was a

willful violation of Rule 16. After conducting a more thorough

Brady analysis regarding the lug nut investigation evidence, the

court said,

I think there’s also argument from the [prosecution] as far as Brady on other issues. I don’t recall making a Brady finding on other

6 issues. I do find that the People, whether it’s a paralegal or not, it is a willful act to redact discovery. There’s no two ways about that. You can’t accidentally redact a video.

¶ 14 We acknowledge that the court’s various rulings on this issue

are somewhat confusing. But in the end, the court determined that

the prosecution had willfully violated Crim. P. 16(I)(a)(1) by

redacting the forensic interview; it did not determine that a Brady

violation had occurred. See Andrews v. Miller, 2019 COA 185, ¶ 8

(we review the interpretation of a court’s order de novo). Because

the People do not challenge violation 43 on any other ground, we

perceive no reason to disturb that part of the court’s order.

B. The Sanction Was Not Too Severe

¶ 15 The People contend that the district court abused its

discretion by dismissing ten counts as a sanction. Even assuming

the court found only twenty-nine discovery violations, we disagree.

1. Applicable Law and Standard of Review

¶ 16 Crim. P. 16 controls discovery in criminal cases, including the

prosecution’s disclosure obligations. In the event a party fails to

comply with the discovery rules, Crim. P. 16(III)(g) permits a trial

7 court to order a sanction as it “deems just under the

circumstances.”

¶ 17 The court “should impose the least severe sanction that will

adequately remedy the violation.” People v. Daley, 97 P.3d 295, 298

(Colo. App. 2004). But the court must fashion a remedy that

protects the integrity of the truth-finding process and deters

discovery-related misconduct. People v. Whittington, 2024 CO 65,

¶ 19. Sanctions for a Crim. P. 16 violation may “be curative or,

when there is ‘willful misconduct or a pattern of neglect

demonstrating a need for modification of a party’s discovery

practices,’ be deterrent or punitive.” Id. (quoting People v. Lee, 18

P.3d 192, 196-97 (Colo. 2001)). In selecting an appropriate

sanction, the court must consider the following factors: “(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 [dismissal]; and

(5) any other relevant facts.” People v. Tippet, 2023 CO 61, ¶ 37

(citation omitted).

8 ¶ 18 The trial court has broad discretion to impose a discovery

sanction, id. at ¶ 34, and we will not reverse its decision absent an

abuse of that discretion, see People v. Mendez, 2017 COA 129, ¶ 32.

A court abuses its discretion if its decision is based on a

misapplication of the law or is manifestly arbitrary, unreasonable,

or unfair. People v. Grant, 2021 COA 53, ¶ 12. Under this

standard, we do not ask whether we would have ruled as the trial

court did but instead consider whether the trial court’s decision fell

within a range of reasonable options. Tippet, ¶ 64.

2. Additional Background

¶ 19 After finding fifty-two Crim. P. 16 violations, the district court

considered what would be an appropriate sanction. The court

expressed frustration “that there [was] not an acknowledgement

from the [prosecution] regarding some of these blatant Rule 16

violations.” The court found that there was a pattern of neglect

within this case because the fifty-two violations occurred over the

9 course of six months.1 As explained, the court also found that the

prosecution’s redaction of the forensic interview was willful. Under

the “totality of the circumstances,” including the pattern and

willfulness findings, and after “considering Tippet [and]Whittington,”

the court elected to dismiss counts twenty-one through thirty as a

“sanction to deter [such] future discovery practices.”

¶ 20 The court admittedly “struggle[d] to find prejudice” given the

passage of time since the disclosures were made, but it reasoned

that “[t]here is prejudice to [d]efense regarding continued late

disclosure by the” prosecution and noted that there were late

endorsements of witnesses “in addition to the vast late disclosure of

1 During the Crim. P. 16 motions hearing, defense counsel brought

up another case in the jurisdiction in which a different court found that the same district attorney’s office had committed several discovery violations, but the district court here declined to find a pattern of neglect based on the other case. Instead, the court based its pattern finding on the multiple violations existing within this single case. It is unclear whether a court can find a pattern of neglect within a single case and, if so, whether the facts of this case establish such a pattern. But as the party with the burden on appeal, the People fail to develop that argument, so we accept the district court’s pattern finding. See People v. Thompson, 2017 COA 56, ¶ 199 (declining to review an argument that was not “sufficiently developed” (citation omitted)); Rego Co. v. MckOwn- Katy, 801 P.2d 536, 540 (Colo. 1990) (“[T]he burden is on the party asserting error to show reversible error.”).

10 evidence.” Ultimately, the court determined that it need not find

prejudice to issue a punitive or deterrent sanction for the discovery

violations.

3. The District Court Did Not Abuse Its Discretion by Dismissing Ten Counts as a Sanction

¶ 21 The People contend that the district court abused its

discretion because (1) the court failed to make adequate findings to

support the sanction, and (2) the sanction is too severe based on

the lack of prejudice to Burney. We are not persuaded.

¶ 22 Although the district court did not make separate findings on

each Tippet factor, it recited the Tippet factors, and its ruling

reflects that it considered those factors when selecting an

appropriate deterrent sanction. We understand the court to have

found that (1) fifty-two discovery violations within six months

constituted a pattern of neglect within this case; (2) the district

attorney’s office had willfully redacted the forensic interview;

(3) Burney suffered prejudice based on the volume of late

disclosures, as well as the late endorsements of witnesses; (4) the

prejudice to Burney was mitigated by the amount of time he had to

review the discovery; (5) the prosecution failed to take responsibility

11 for even “blatant Rule 16 violations”; and (6) based on the totality of

the circumstances, a deterrent sanction was appropriate. See

Tippet, ¶ 37. Even if we assume that there were only twenty-nine

separate violations, the court still made an adequate record to

support its chosen sanction.

¶ 23 The People do not explain how any Tippet factor other than the

lack of prejudice weighs in their favor. We agree with the People

that the prejudice to Burney from the delayed disclosure was largely

mitigated by the fact that he received the information months in

advance of trial. But one factor in a multi-factor test is generally

not dispositive. See People v. Brown, 2014 CO 25, ¶ 24 (adopting a

“multi-factor test” and “reiterat[ing] that no single factor is

dispositive and the weight accorded to each factor will vary

depending on the specific facts at issue in the case”). And the court

was entitled to give the prejudice factor less weight when imposing

a deterrent, as opposed to a curative, sanction. See Tippet, ¶ 61

(rejecting the People’s argument that the court’s deterrent sanction

was inappropriate because the defendant suffered little prejudice);

see also Lee, 18 P.3d at 196 (“Because of the multiplicity of

considerations involved and the uniqueness of each case, great

12 deference is owed to trial courts” when imposing a discovery

sanction.).

¶ 24 The People also argue that the imposed sanction is too severe

because it is harsher than anything defense counsel requested. But

the district court was not limited to choosing among the options

that defense counsel presented. See Tippet, ¶ 34 (the trial court has

broad discretion to craft a discovery sanction); People v. Copeland,

976 P.2d 334, 338 (Colo. App. 1998) (“The choice of an appropriate

sanction for a violation of a discovery rule lies within the sound

discretion of the trial court.”), aff’d, 2 P.3d 1283 (Colo. 2000). The

Colorado Supreme Court has “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.’”

Tippet, ¶ 39 (quoting Lee, 18 P.3d at 196). Based on the totality of

the circumstances, the court chose to dismiss the last ten counts

added in May 2025 as a deterrent sanction, and we perceive no

abuse of discretion in that choice.

¶ 25 We are also unpersuaded by the People’s argument that the

court imposed a “double sanction[]” by denying their request to use

evidence of the dismissed counts as CRE 404(b) evidence at

13 Burney’s trial. As the court explained, allowing the prosecution to

use the evidence would undermine the sanction the court imposed.

See Tippet, ¶ 34; Copeland, 976 P.2d at 338. And the People may

not use this appeal to seek review of the court’s pretrial evidentiary

ruling. See Phillips v. People, 2026 CO 21, ¶ 51 (“C.A.R. 4.1(a) does

not permit interlocutory appeals of pretrial evidentiary rulings.”);

see also C.A.R. 4(b)(6)(B) (appeals of orders dismissing one or more

but less than all counts are conducted pursuant to the procedures

set forth in C.A.R. 4.1).2

¶ 26 In the end, we conclude that the district court did not abuse

its discretion by dismissing ten counts as a sanction for the

prosecution’s Crim. P. 16 violations. The record also makes clear

that the court would have imposed the same sanction whether the

violations numbered fifty-two or twenty-nine because the court’s

primary concern was that the prosecution had engaged in a

substantial pattern of violations over a short period of time, a

2 For the first time in the reply brief, the People argue that the court

failed to tie the dismissal of counts twenty-one through thirty to the discovery violations or explain how dismissing those counts deters future discovery violations. We decline to address this argument. See People v. Woodyard, 2023 COA 78, ¶ 15 n.3 (“[W]e don’t consider arguments made for the first time in a reply brief.”).

14 concern that would not be ameliorated if the violations still

numbered twenty-nine. Thus, we affirm without remanding for

reconsideration of the sanction. Cf. People v. Loveall, 231 P.3d 408,

416 (Colo. 2010) (when one or more bases for probation revocation

are set aside, affirmance without remand is appropriate only when

the record clearly shows that the trial court would have reached the

same result based on the remaining violations).

III. Disposition

¶ 27 We affirm the district court’s order.

JUDGE HARRIS and JUDGE TOW concur.