Zoll v. People, 425 P.3d 1120

Zoll was convicted by a jury of second-degree assault on a peace officer, criminal impersonation, and resisting arrest; later adjudicated a habitual criminal and sentenced to 18 years.
Before trial, Zoll subpoenaed Deputy Mitchell’s personnel/disciplinary records; the employer submitted files for in camera review and the trial court disclosed four sets of documents but withheld others.
On appeal a division of the court of appeals found the trial court should have disclosed an additional set (the August 2010 documents) but concluded nondisclosure was harmless and affirmed convictions.
During deliberations the jury requested replay of a police/“911” recording; the trial court replayed ~3 minutes of the recording after defense counsel purported to waive Zoll’s presence, and Zoll was not in the courtroom when it was replayed.
Zoll sought certiorari arguing (1) the proper appellate remedy when in camera review leads to erroneous nondisclosure and (2) replaying the recording during deliberations was a critical stage requiring his presence.

Issue	Zoll’s Argument	People’s Argument	Held
Proper remedy when appellate court finds trial court wrongly withheld documents after in camera review	Remand to trial court to disclose documents and allow defendant to show a reasonable probability of a different outcome; if shown, grant new trial	Appellate court may itself assess prejudice and affirm if nondisclosure was harmless	Court: Remand to trial court to disclose withheld materials and give defendant opportunity to show reasonable probability of a different result; reverse court of appeals’ harmlessness approach
Whether replaying a recording during deliberations was a critical stage requiring defendant’s presence	Replaying during deliberations is a critical stage; absence violated constitutional right to be present	Either not a critical stage, or any error was waived by counsel; alternatively harmless	Court: Declines to decide definitively whether it was a critical stage, but holds any error in accepting waiver and replaying the tape without Zoll was harmless beyond a reasonable doubt

People v. Kyle, 111 P.3d 491 (Colo. App. 2004) (court of appeals previously reviewed allegedly withheld records and assessed harmlessness)
Exline v. Gunter, 985 F.2d 487 (10th Cir. 1993) (federal habeas case addressing in camera review and remand to trial court)
People in Interest of A.D.T., 232 P.3d 313 (Colo. App. 2010) (adopted procedure: remand, disclose, allow defense to show prejudice)
Commonwealth v. French, 611 A.2d 175 (Pa. 1992) (discusses advocacy perspective when defense reviews withheld statements)
United States v. McGowan, 423 F.2d 413 (4th Cir. 1970) (once materials should have been disclosed, defense must be allowed to assess usefulness)
Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless beyond a reasonable doubt standard for constitutional errors)
Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (harmless-error inquiry focuses on effect of error on the verdict actual rendered)