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
2019COA17
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 2019COA17
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, 219 P.3d 332, 336 (Colo. App. 2009).
We review a trial court’s dismissal of a case based on a finding of
outrageous government conduct for an abuse of discretion. Id. A
trial court abuses it discretion when its ruling is manifestly
3 arbitrary or unreasonable. People v. Medina, 51 P.3d 1006, 1011
(Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d
973 (Colo. 2003). It is an abuse of discretion if the court
misinterprets or misapplies the law. People v. Douglas, 2016 COA
59, ¶ 54.
¶ 11 However, we note that outrageous government conduct has
always been recognized as a violation of due process. See Bailey v.
People, 630 P.2d 1062, 1068 (Colo. 1981); McDowell, 219 P.3d at
336; Medina, 51 P.3d at 1011. We review due process violations de
novo. See, e.g., Quintano v. People, 105 P.3d 585, 592 (Colo. 2005);
People in Interest of C.J., 2017 COA 157, ¶ 25. 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, 815 P.2d 956, 959 (Colo. App. 1991)
(upholding the dismissal of charges based on a finding of
outrageous government conduct because the prosecution filed fake
charges against an undercover agent and therefore “dup[ed the]
court into becoming an accomplice” to their nefarious actions).
¶ 13 We understand the trial court’s ruling to be based on (1) the
fact that the interview was videotaped; (2) the fact that the
prosecutors repeatedly used the work product privilege to block any
evidence showing why they chose to videotape the interview or to
explain their decision-making process in filing the charges; and
(3) a violation of the Victim Rights Act, sections 24-4.1-301 to -305,
C.R.S. 2018. The court’s oral ruling is sparse, and it cites no legal
authority for support. We conclude that the trial court’s findings of
fact do not support its conclusion that the government’s conduct
was outrageous.
¶ 14 First, the trial court did not cite authority or explain why
videotaping the interview with defendant was improper other than
the judge’s personal experience and his conclusion, without
evidentiary support, that this was an extraordinary and
unprecedented action by the police and the prosecutors. However,
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, 219 P.3d at 336 (intentionally
withholding Miranda warnings to obtain statements and then giving
the warnings and repeating the questions did not constitute
outrageous conduct); Medina, 51 P.3d at 1012 (egregious violations
of a defendant’s Fifth Amendment rights did not constitute
outrageous conduct).
¶ 17 Finally, even considered together, these circumstances cannot
be fairly said to “violate[] fundamental fairness” or to be “shocking
to the universal sense of justice.” Medina, 51 P.3d at 1011.
Because the trial court’s findings of fact are not supported by the
record, we conclude they were arbitrary and thus an abuse of
¶ 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, 191 Colo.
263, 552 P.2d 6 (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.” Id. at 268, 552 P.2d at 9. 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, 630 P.2d 1062, 1068 (Colo.
1981) (noting the consistency between the above-quoted statement
in Vandiver and Justice Powell’s concurring opinion in Hampton v.
United States, 425 U.S. 484, 495 (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., 761 P.2d 1124 (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, 585 F.2d 443, 445 (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.” Id. 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, 219 P.3d 332,
336 (Colo. App. 2009); People v. Medina, 51 P.3d 1006, 1011 (Colo.
App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d 973
(Colo. 2003).
¶ 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, 585 F.2d at 445). 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, 585 F.2d at 445.
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.” Id. 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,
2015 CO 25, ¶¶ 18-19 (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., 207 P.3d 881,
888 (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,
198 P.3d 1217, 1220 (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, 62 P.3d 1049, 1053
(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, 842 F.2d 1149, 1152 (9th Cir. 1988);
United States v. Valona, 834 F.2d 1334, 1343 (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, 27 F.3d 1515, 1521 (10th Cir. 1994). In
doing so, the trial court’s factual findings are reviewed under the
clearly erroneous standard. United States v. McKissick, 204 F.3d
1282, 1295 (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, 132 Cal. Rptr. 3d 102, 120-21 (Cal.
Ct. App. 2011) (reviewing de novo), with People v. Velasco-Palacios,
185 Cal. Rptr. 3d 286, 290 (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, 343 P.3d 1, 6 (Ariz. Ct. App. 2015); State v. Simmons,
364 S.W.3d 741, 745 (Mo. Ct. App. 2012); State v. Laurence, 848
A.2d 238, 250 (R.I. 2004); State v. Valentine, 935 P.2d 1294, 1305
(Wash. 1997); State v. Houston, 475 S.E.2d 307, 321 (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, 425 S.W.3d 25, 32
(Ark. Ct. App. 2012); State v. Nelson, 822 P.2d 53, 56 (Kan. 1991);
State v. Fitzpatrick, 291 P.3d 1106, 1109 (Mont. 2012); State v.
Hoverson, 710 N.W.2d 890, 895 (N.D. 2006); State v. Hudson, 2012
WI App 118, ¶ 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, 2017 CO 100, ¶ 16 (citation
omitted). The same standard is used when reviewing “whether a
seizure violated constitutional prohibitions against unreasonable
searches and seizures.” People v. Funez-Palagua, 2012 CO 37, ¶ 6.
And the “mixed question of law and fact” review standard has been
applied in a different due process context. Bernal v. People, 44 P.3d
184, 206-07 (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. 105 P.3d 585, 592-93 (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. 2014 COA 144, ¶ 23. 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. 689 P.2d 645, 647 (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, 508 F.2d 146, 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.