2020 COA 116
Colo. Ct. App.2020Background
- Brian Lowe, an escapee on parole, was arrested after an altercation at a Colorado Springs Hobby Lobby where Deputies Keith Duda and Lt. Shane Mitchell attempted to take him into custody; during the struggle Lowe obtained a taser and officers observed a knife, and Mitchell shot Lowe.
- A jury convicted Lowe of multiple counts including two counts of resisting arrest, two counts of first-degree assault on peace officers, attempted murder counts, menacing, and prohibited use of a stun gun; he was adjudicated a habitual criminal and given consecutive 64-year terms on the first-degree assault convictions.
- Before trial Lowe subpoenaed Mitchell’s and Duda’s personnel and internal affairs files; the trial court conducted in camera review and denied disclosure; Lowe appealed that denial.
- At the habitual-criminal hearing the prosecution’s investigator Phillip Donner was qualified as an expert to match fingerprints tying Lowe to prior felonies; the court relied on those priors (including an escape conviction) to adjudicate Lowe a habitual criminal.
- Lowe argued on appeal that the court erred by (1) refusing to disclose certain personnel/internal investigation records, (2) admitting the fingerprint witness as an expert, (3) relying on an escape conviction for habitual adjudication, (4) failing to merge two resisting-arrest convictions, and (5) erroneously treating consecutive sentencing as mandatory.
- The Court of Appeals: (a) ordered disclosure of specified portions of Mitchell’s files and remanded for prejudice review; (b) affirmed qualification of the fingerprint witness; (c) ordered correction to the mittimus to remove the escape conviction reference (but left habitual adjudication intact); (d) held the two resisting-arrest convictions must merge; and (e) affirmed consecutive sentencing under the crime-of-violence statute.
Issues
| Issue | People’s Argument | Lowe’s Argument | Held |
|---|---|---|---|
| Disclosure of officers’ personnel/internal affairs files | Files were not material or relevant; privacy interests prevail | Mitchell’s files contain past findings/allegations of falsification, embellishment, or misreporting that impeach credibility and are Brady/Crim. P.16 material | Court ordered disclosure of specific Mitchell records bearing on credibility and remanded to allow Lowe to show prejudicial error; Duda’s files need not be disclosed |
| Qualification of fingerprint witness as expert | Donner had training, experience, peer review, and prior expert qualifications sufficient under CRE 702 | Donner’s training was minimal, lacked national certs, error-rate testing, publications, or formal accreditation | Court affirmed trial court’s exercise of discretion in qualifying Donner as an expert; any error reviewed for harmlessness and not shown |
| Use of prior escape conviction in habitual-criminal adjudication | Even if inclusion was error, habitual adjudication still supported by other priors and harmless | Escape convictions are statutorily excluded from supporting habitual-criminal adjudication | Court held use of escape conviction was unlawful; remanded to correct mittimus to strike reference but left habitual adjudication and sentence otherwise intact |
| Multiplicity / merger of two resisting-arrest convictions | Separate convictions permissible because two officers were victims | Unit of prosecution is the number of discrete volitional acts of resistance (not number of officers); Lowe resisted a single continuous act | Court held unit of prosecution is discrete volitional acts of resisting arrest; here resistance was one continuous episode and the two convictions must merge |
| Mandatory consecutive sentences for separate crimes of violence | Crime-of-violence statute mandates consecutive sentences for separate crimes of violence; not preempted by habitual-criminal statute | Habitual-criminal statute preempts other sentencing rules and might affect consecutive/ concurrent discretion | Court held the crime-of-violence consecutive-sentencing requirement applies and is not preempted by the habitual statute here; consecutive 64-year terms affirmed |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (prosecution must disclose exculpatory evidence)
- People v. Spykstra, 234 P.3d 662 (Colo. 2010) (police personnel files implicate privacy; greater showing of need required)
- People v. Walker, 666 P.2d 113 (Colo. 1983) (complaints of excessive force must be disclosed when impeachment material)
- Martinelli v. Dist. Court, 612 P.2d 1083 (Colo. 1980) (balancing privacy against compelling state interest for disclosure)
- People v. White, 64 P.3d 864 (Colo. App. 2002) (materiality standard for disclosure under Brady/Crim. P.16)
- People v. James, 40 P.3d 36 (Colo. App. 2001) (personnel records relevance to impeaching officer credibility)
- People v. Williams, 790 P.2d 796 (Colo. 1990) (standards for qualifying expert witnesses)
- People v. Ramirez, 155 P.3d 371 (Colo. 2007) (scientific expert testimony must be reliable and relevant)
- Golob v. People, 180 P.3d 1006 (Colo. 2008) (trial court discretion in admitting expert testimony)
- Yusem v. People, 210 P.3d 458 (Colo. 2009) (harmless-error standard for erroneously admitted evidence)
- Patton v. People, 35 P.3d 124 (Colo. 2001) (unit of prosecution and legislative authorization for multiple punishments)
- People v. Pena, 794 P.2d 1070 (Colo. App. 1990) (habitual statute does not preclude crime-of-violence consecutive sentencing)
- People v. Apodaca, 58 P.3d 1126 (Colo. App. 2002) (habitual statute preempts sentencing statutes that would lessen punishment)