People v. Bueno

411 P.3d 62
CourtColorado Court of Appeals
DecidedNovember 21, 2013
DocketCourt of Appeals No. 10CA2114
StatusPublished
Cited by175 cases

This text of 411 P.3d 62 (People v. Bueno) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bueno, 411 P.3d 62 (Colo. Ct. App. 2013).

Opinions

Opinion by JUDGE GRAHAM

¶ 1 The People of the State of Colorado appeal the trial court's order granting defendant, David Bueno, a new trial based upon newly discovered evidence. As a matter of first impression, we conclude the term "entry of judgment" in Crim. P. 33(c) means more than a "verdict or finding of guilt" and must include sentencing of the defendant. Accordingly, here, as a matter of law, defendant's Crim. P. 33(c) motion was timely because he had not been sentenced at the time he filed his motion. Because we further conclude *65that the trial court did not abuse its discretion in determining the prosecution in this case violated Crim. P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that defendant was entitled to a new trial pursuant to Crim. P. 33(c) because of this violation, we affirm.

I. Background

¶ 2 Defendant was charged with and convicted of first degree murder after a jury trial for the death of fellow inmate Jeffrey Heird at the Limon Correctional Facility (LCF). At trial, the prosecution relied heavily on an anonymous note found in a shower drain at LCF stating, "Killers are Bueno and [codefendant]." Part of defendant's theory at trial was that the prosecution failed to investigate alternative suspects, specifically white inmates at LCF.

¶ 3 Approximately fifteen months after defendant's trial but before sentencing, the prosecution "in an abundance of caution" provided discovery of a letter (ABN letter) and report to the defense in this case. The ABN letter was found by Nurse Linda Deatrich in the medical "kite" box at LCF approximately thirty-five minutes after Heird's body was discovered in his cell. The ABN letter states:

Let it be known to all, The Aryan
Nation along with the neo nazi skinheads
hereby decree that all men of the white
race who refuse to accept their proud
race will hereby be exterminated. We hereby
select two to begin the extermination process
M. Nowlin and A. "Cueball" Latner. To begin
with there are three to choose from
LU-1 Sorenson has out lived his worth
LU-2 "Santa Clause" Parrish is worthless
LU 6 Hollenbeck need to be taught a lesson
The list continues but for now these are to be done soon.
[Illegible signature]
[Backward swastika] ABN

Nurse Deatrich filed an employee incident report about the discovery of the ABN letter (Deatrich report).

¶ 4 Two days after the ABN letter was discovered, inmate David Hollenbeck, a listed target, suffered cardiac distress and was taken to Denver General Hospital, where he died. Hollenbeck was observed to have suffered blunt force trauma to his chest but an autopsy revealed his death was caused by a pulmonary embolism.

¶ 5 Lieutenant Timothy Smelser, a gang intelligence officer at LCF, wrote a report about Hollenbeck which specifically referenced Heird's death and the discovery of the ABN letter (Smelser report). In Lieutenant Smelser's opinion, Heird's death and Hollenbeck's death were likely connected. The Smelser report was also not provided to the defense until more than fifteen months after defendant was convicted at trial.

¶ 6 It is undisputed that copies of the ABN letter and the Deatrich report were contained in the working file of Deputy District Attorney Robert Watson, the original prosecutor working on defendant's case. Thus, the prosecution had this information sometime in 2004 but did not provide it to defendant until July 2009. However, defense counsel were allowed to review records at LCF in May 2007, where the originals of the ABN letter and the Deatrich report are contained. Yet defense counsel did not discover either the ABN letter or the Deatrich report in 2007. Defendant's counsel learned of the ABN letter and the Deatrich report in June 2008, when counsel for a codefendant discovered the letter and report. But at the time of the material's discovery by the codefendant, defendant had already been convicted.

¶ 7 Defendant filed a motion for a new trial based upon Crim. P. 33(c) and the prosecution's "extraordinary violation of Brady v. Maryland ." In his brief in support of the motion, defendant requested a new trial because the ABN letter, the Deatrich report, and the Smelser report were not disclosed to the defense in violation of Crim. P. 16(I)(a)(2) and Brady . The court held hearings on defendant's motion and in a written order granted defendant a new trial pursuant to Crim. P. 33. The court concluded:

*66In People v. Alejandro Perez, co-defendant of [defendant], upon order from the trial court, the Prosecution was ordered to review the working file of Robert Watson.... Deputy District Attorney Jason Siers reported finding within the working file of former Deputy District Attorney Watson two pages (handwritten report of Linda [Deatrich] and handwritten letter) ... which were then provided to defense counsel in "an abundance of caution." (Siers Memo of 7/6/09.) The People began an immediate investigation as to whether these documents had previously been provided in discovery. These documents were disclosed to the defense July 6, 2009, approximately 15 months after [defendant's] trial.
....
It is important to note these two reports and the letter were in the possession of the District Attorney near the very beginning of the investigation into the death of Jeffrey Heird. These documents were never included in discovery provided by the District Attorney to the [d]efendant until some fifteen (15) months after [defendant's] trial. The originals of these documents were later discovered by District Attorney's Investigators in the Department of Correction's file at LCF.
Furthermore, on April 2, 2004, Tim Smelser, LCF gang intelligence officer, authored a report ... highlighting to the investigators the possible connections of the Jeffrey Heird death and the death of Hollenbeck. This report was not given in discovery until after the [Deatrich] report and the "ABN" letter were disclosed. Smelser testified he was responsible at the beginning of the investigation into Heird's murder to compile all relevant reports and information for the investigators. He further testified he gave his reports to all those assigned to investigate the Heird murder.
....
The defense theory from the beginning was that the murder of Heird was the work of other white inmates, possibly white supremacists.

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Bluebook (online)
411 P.3d 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bueno-coloctapp-2013.