Opposition Brief — Robert Angel Perez, Petitioner v. Colorado

NO. 19-1357

In the

Supreme Court of the United States

________________

ROBERT ANGELO PEREZ,

Petitioner,

v.

STATE OF COLORADO,

Respondent.

________________

On Petition for Writ of Certiorari to the

Supreme Court of Colorado.

________________

RESPONDENT’S BRIEF IN OPPOSITION

________________

PHILIP J. WEISER

Attorney General

ERIC R. OLSON

Solicitor General

Office of the Colorado

Attorney General

1300 Broadway, 10th Floor

Denver, Colorado 80203

andrew.cooper@coag.gov

(720) 508-6000

L. ANDREW COOPER

Deputy Attorney

General

Counsel of Record*

BRITTANY L. LIMES

Assistant Attorney

General

Counsel for Respondent

September 11, 2020

i

QUESTION PRESENTED

Whether, and to what extent, the Sixth and

Fourteenth Amendments guarantee a criminal

defendant the right to discover potentially exculpatory

mental health records held by a private party,

notwithstanding a state privilege law to the contrary.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ..................................... I

TABLE OF CONTENTS ....................................... II

TABLE OF AUTHORITIES ................................ III

INTRODUCTION .................................................. 1

STATEMENT OF THE CASE ............................... 2

REASONS FOR DENYING THE PETITION ...... 7

I. This case is a poor vehicle to resolve the

question presented because any error was

harmless beyond a reasonable doubt. ......... 8

A. Petitioner confessed in great detail to

murdering his wife. .................................. 9

B. Petitioner presented ample other

evidence to support his suicide defense. 12

II. The opinion did not deepen any split, and on

these facts most States would deny in

camera review of the privileged records. ... 15

A. The unpublished opinion applied

longstanding Colorado law. ................... 16

B. The nonprecedential opinion did not

deepen any split. .................................... 18

C. Petitioner did not make a sufficient

showing to justify in camera review...... 22

CONCLUSION..................................................... 26

iii

TABLE OF AUTHORITIES

CASES

Advisory Op. to the House of Representatives, 469

A.2d 1161 (R.I. 1983) ................................................. 21

Burns v. State, 968 A.2d 1012 (Del. 2009) ..................... 20

Chambers v. Mississippi, 410 U.S. 284 (1973) ............... 13

Chapman v. California, 386 U.S. 18 (1967) ..................... 9

Commonwealth v. Barroso, 122 S.W.3d 554 (Ky.

2003) ........................................................................... 19

Dietrich v. Smith, 701 F.3d 1192 (7th Cir. 2012) .... 20, 24

Dill v. People, 927 P.2d 1315 (Colo. 1996)...... 6, 17, 23, 25

Harrington v. California, 395 U.S. 250 (1969) .......... 9, 12

Hathaway v. State, 399 P.3d 625 (Wyo. 2017) ............... 20

Holmes v. South Carolina, 547 U.S. 319 (2006) ............ 13

Jaffee v. Redmond, 518 U.S. 1 (1996) ............................ 21

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) .................... 6

People v. Dist. Court, 719 P.2d 722 (Colo. 1986) .... passim

People v. Stanaway, 521 N.W.2d 557 (Mich. 1994) . 20, 21

People v. Wittrein, 221 P.3d 1076 (Colo. 2009) .............. 17

R.S. v. Thompson in & for Cty. of Maricopa, 454

P.3d 1010 (Ariz. Ct. App. 2019)................................. 19

Rock v. Arkansas, 483 U.S. 44 (1987) ............................ 13

State v. Fay, 167 A.3d 897 (Conn. 2017) .................. 19, 24

State v. Green, 646 N.W.2d 298 (Wis. 2002) ...... 19, 21, 25

iv

State v. Hummel, 483 N.W.2d 68 (Minn. 1992) ............. 20

State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013) ........ 19

State v. Rehkop, 908 A.2d 488 (Vt. 2006) ................. 19, 20

State v. Trammell, 435 N.W.2d 197 (Neb. 1989) ........... 20

Strickler v. Greene, 527 U.S. 263 (1999) ........................ 23

Sullivan v. Louisiana, 508 U.S. 275 (1993) ............... 9, 12

United States v. Bagley, 473 U.S. 667 (1985) ................ 23

Washington v. Texas, 388 U.S. 14 (1967) ....................... 13

Yeutter v. Industrial Claim Appeals Office, ___

P.3d___, 2019 COA 53 (Colo. App. 2019) .................. 18

Zapata v. People, 428 P.3d 517 (Colo. 2019) ............ 17, 21

STATUTES

§ 13-90-107(1)(g), C.R.S. (2019) ........................................ 6

OTHER AUTHORITIES

U.S. DEP’T OF HEALTH & HUMAN SERVS., “Does

depression increase the risk for suicide?” FAQ –

Mental Health and Substance Abuse,

https://www.hhs.gov/answers/mental-healthand-substance-abuse/does-depression-increaserisk-of-suicide/index.html (last accessed Sept.

11, 2020) ..................................................................... 24

INTRODUCTION

Petitioner asks this Court to review an

unpublished, nonprecedential Colorado Court of

Appeals decision that affirmed the finding that he had

not made a sufficient showing under the Sixth and

Fourteenth Amendments to require an in camera

review of his deceased wife’s privileged mental health

records, which he claims were necessary to his suicide

defense.

This case is a poor vehicle to resolve that question

because Petitioner confessed to his wife’s murder

during trial, making the suicide defense largely

irrelevant to his conviction. Evidence discovered at the

crime scene and presented at trial corroborated his

detailed confession. Given Petitioner’s confession and

the extensive leeway he was otherwise given to

present his suicide defense, any error in quashing his

subpoena for his wife’s privileged mental health

records was harmless beyond a reasonable doubt.

The Colorado Court of Appeals decision also did

not deepen any split in authority, as it applied

longstanding Colorado law and comports with the

national majority rule requiring defendants to make a

particularized factual showing of need to trigger an in

camera review. And the court of appeals correctly

concluded that Petitioner’s general assertion that his

wife sought treatment for depression was not a

sufficient particularized showing that those records

were necessary to his defense.

Further review from this Court is unnecessary.

2

STATEMENT OF THE CASE

1. Factual background. Petitioner found out his

wife, Dennielle, had an affair, and Petitioner became

enraged. Pet. App. 3a-4a. When Dennielle’s parents

called her that day, they could hear Petitioner yelling

in the background using profanity and racial epithets.

R. Tr. 5-9 (May 3, 2016 PM). Concerned for her

daughter’s safety, Dennielle’s mother asked

Dennielle’s aunt to go over to their house to check on

her. R. Tr. 39-41 (May 3, 2016 AM). When Dennielle’s

aunt and uncle arrived, they saw Petitioner pacing

angrily outside the house, and he told them that

Dennielle had an affair. R. Tr. 41-52 (May 3, 2016

AM). Dennielle’s mother called the police and they

searched the house, but Dennielle was not there. R.

Tr. 11-19, (May 3, 2016 PM). Her mother and sister

eventually found her disoriented and wandering the

neighborhood a few hours later. R. Tr. pp 19-25 (May

3, 2016 PM); R. Tr. 43-48 (May 9, 2016 PM). Dennielle

went to stay with her parents. Pet. App. 3a-4a.

While Dennielle stayed with her parents,

Petitioner called her repeatedly and sent her several

messages that threatened to expose sexually explicit

pictures of her and that were emotionally abusive. Pet.

App. 4a. Eventually, Petitioner convinced Dennielle to

come back and discuss their relationship, and

Dennielle’s brother dropped her off at Petitioner’s

work two days later. Pet. App. 4a.

The next day, Dennielle’s mother and sister tried

calling her multiple times, with no response. R. Tr. 3335 (May 3, 2016 PM); R. Tr. 66 (May 9, 2016 AM). At

around 2:00 p.m., Petitioner called Dennielle’s mother

and asked if she had seen Dennielle. R. Tr. 35 (May 3,

3

2016 PM). Dennielle’s mother replied that she had not

and that she was calling the police and coming over to

their house. R. Tr. 35-39 (May 3, 2016 PM). After they

hung up, Petitioner immediately called the police and

told them he found his wife dead in the basement. Pet.

App. 4a.

Responding officers found Dennielle’s body lying

on the basement floor next to a bed, with a shotgun

partially beneath her body. Pet. App. 4a. The autopsy

revealed a fresh scrape on one knee and bruising all

over Dennielle’s body consistent with blunt force

trauma. Pet. App. 4a; R. Tr. 102-125 (May 4, 2016

PM). It also showed a gunshot entrance wound under

her left armpit and a small exit wound in her middle

back. Pet. App. 4a; R. Tr. 89, 125-131 (May 4, 2016

PM).

The coroner’s reenactment showed that, while

theoretically possible, it would have been difficult for

a person Dennielle’s size to shoot herself with the

shotgun and receive the same injuries Dennielle

received. R. Tr. 7-29 (May 5, 2016 AM). The coroner

concluded that while “there’s some compelling

evidence at my autopsy, and with the reenactment, to

rule this a homicide, at the end of the day . . . I could

not absolutely exclude suicide.” Pet. App. 14a; R. Tr.

31 (May 5, 2016 AM).

Petitioner’s hands and shirt tested positive for

gunshot residue. R. Tr. 53-54 (May 11, 2016 PM); R.

Tr. 28-30 (May 12, 2016 PM). Police also discovered an

ejected shotgun shell under the bed and that the pump

action was worked after the shot was fired. R. Tr. 7982, 88, 95-96 (May 4, 2016 AM); R. Tr. 53-63, 67-72

(May 12, 2016 AM).

4

Petitioner was charged with first degree murder –

after deliberation for Dennielle’s death. Pet. App. 4a.

Through counsel, Petitioner claimed he was not

guilty because Dennielle committed suicide. Pet. App.

4a. He attempted to subpoena Dennielle’s mental

health records from Kaiser Permanente, but the trial

court quashed this subpoena and found the records

were covered by the psychologist-patient privilege,

Dennielle had not waived her privilege, and the

records were not subject to in camera review because

the privilege is absolute. Pet. App. 23a-26a, 39a.

At trial, Petitioner presented evidence suggesting

Dennielle was depressed and suicidal. Specifically, he

presented evidence that she had erratic sleeping

habits and had lost a significant amount of weight in

the weeks preceding her death. R. Tr. 108-110 (May 3,

2016 AM); R. Tr. 60-61 (May 3, 2016 PM). He elicited

testimony that Dennielle was disappointed with her

career and unhappy in her marriage, and that she

longed to have children but had trouble getting

pregnant. Pet. App. 13a-14a. He presented evidence

that Dennielle’s cousin, to whom she had been close,

committed suicide when they were teenagers. R. Tr.

61-62, 66 (May 3, 2016 AM). Friends and family

members testified that Dennielle had discussed

suicide with them but denied that she had ever

considered committing suicide herself. Pet. App. 13a14a Dennielle’s brother testified that she took a

handful of sleeping pills and wandered away from the

house on the night Petitioner discovered her affair.

Pet. App. 14a. A detective testified that Petitioner told

him Dennielle struggled with depression and had

sought mental health treatment. R. Tr. 8-9 (May 12,

5

2016 AM). And a defense expert in forensic pathology

testified at length that Dennielle died of a gunshot

wound that was self-inflicted. Pet. App. 14a.

But a week into the trial, police discovered

Petitioner confessed to a fellow inmate after the first

day of jury selection. Pet. App. 4a-5a. Petitioner told

the inmate he killed Dennielle and offered the inmate

$25,000 to say the inmate had slept with Dennielle

and that she committed suicide because she was afraid

of being prosecuted for stealing money from the

restaurant her family owned. Pet. App. 4a-5a.

Although Petitioner tried to discredit the inmate

with his numerous felony convictions involving

dishonesty, the inmate knew several specific details

about the events leading up to the murder and

evidence found at the scene, which were corroborated

by other evidence presented at trial. The jury also

watched a jail surveillance video, which showed

Petitioner and the inmate conversing for two hours on

the day Petitioner confessed and showed Petitioner

physically demonstrating how he positioned the

shotgun by Dennielle’s body to make it seem like she

committed suicide. R. Tr. 10-15 (May 12, 2016 PM).

The jury convicted Petitioner of first degree

murder. Pet. App. 5a.

2. Proceedings in the Colorado Court of

Appeals. Petitioner directly appealed his conviction.

Pet. App. 1a-22a. He claimed his Sixth and Fourteenth

Amendment rights to confrontation, to compulsory

process, and to present a defense required the trial

court to review Dennielle’s privileged mental health

records in camera and balance his need for the

6

information in the records with her interest in

confidentiality. Pet. App. 6a.

The Colorado Court of Appeals affirmed in an

unpublished, nonprecedential decision. Pet. App. 2a22a. The court of appeals observed that the plain

language of Colorado’s psychologist-patient privilege

statute, section 13-90-107(1)(g), C.R.S. (2019),

“appears to preclude the compelled production of

mental health records unless the privilege is waived,”

even for in camera review. Pet. App. 8a. The court of

appeals noted that the Colorado Supreme Court had

distinguished this Court’s decision in Pennsylvania v.

Ritchie, 480 U.S. 39 (1987), concluding that while the

Pennsylvania statute in Ritchie contemplated some

form of judicial review of confidential child abuse

records, Colorado’s psychologist-patient privilege

statute contains no provision allowing for disclosure

based on a court order. Pet. App. 9a-10a (citing Dill v.

People, 927 P.2d 1315, 1325 (Colo. 1996)).

The court of appeals recognized a defendant’s

constitutional rights might overcome the privilege in

“extraordinarily narrow circumstances”; but, “in the

absence of a particularized showing that mental

health records contain statements or information

necessary to vindicate a defendant’s right to present a

complete defense, Colorado’s psychologist-patient

privilege does not allow trial courts to conduct an in

camera review of mental health records unless a

patient has waived the privilege.” Pet. App. 11a-12a.

It then concluded Petitioner’s claim that Dennielle

may have been depressed and may have discussed her

depression with her treatment provider at some

unknown time was not a sufficient “particularized

7

showing” that the privileged records contained

exculpatory evidence, and his “broad assertions are

insufficient to overcome Colorado’s strong public

policy interest in securing the privacy of mental health

records.” Pet. App. 12a-13a.

The Colorado Supreme Court denied his petition

for certiorari review. Pet. App. 1a.

REASONS FOR DENYING THE PETITION

This case is a poor vehicle to address the question

presented. Petitioner confessed, in explicit detail, to

his wife’s murder. Physical evidence and testimony

from other trial witnesses corroborated his confession.

Combined with the extensive leeway Petitioner was

given to present evidence supporting his suicide

defense, his first degree murder conviction was surely

unattributable to any error in quashing the subpoena

for his deceased wife’s privileged mental health

records.

Under Colorado law, the unpublished opinion

does not create binding precedent and did not deepen

to any split in authority. Rather, it applied

longstanding Colorado law, which contemplates

allowing in camera review of privileged records if a

defendant makes a particularized factual showing

that the records contain material, exculpatory

information necessary to vindicate the defendant’s

right to present a defense. This rule is consistent with

the nationwide majority rule, which requires

defendants to make a particularized factual showing

that the requested privileged records would be

material or exculpatory or otherwise demonstrate a

“compelling need” for the records to trigger an in

camera review.

8

And the Colorado Court of Appeals correctly

concluded that Petitioner failed to make that required

sufficient particularized showing. Petitioner claimed

Dennielle sought treatment for depression and may

have discussed her depression with her treatment

provider, and that her depression “may” have led to

her suicide. This proffer was general and vague, and

Petitioner acknowledged the privileged records would

merely corroborate the nonprivileged testimony of

other witnesses. This proffer was not enough to show

Dennielle’s mental health records contained material,

exculpatory evidence that would have influenced the

outcome of his trial had it been discovered, and it did

not justify piercing the psychologist-patient privilege.

This Court should deny the petition.

I.

This case is a poor vehicle to resolve the

question presented because any error was

harmless beyond a reasonable doubt.

This case is a poor vehicle to resolve the question

presented because even if the trial court erred in

quashing Petitioner’s subpoena for Dennielle’s mental

health records, the guilty verdict was surely

unattributable to that error for two reasons.

First, the jury heard testimony that Petitioner

confessed, during trial, to killing his wife, which

conflicted with his suicide defense.

Second, before his confession surfaced in the

middle of trial, Petitioner was given significant leeway

to present other evidence supporting his suicide

defense—in addition to testimony about Dennielle’s

depression from fact witnesses, he presented expert

testimony suggesting she died from a self-inflicted

gunshot wound.

9

Because any error was harmless beyond a

reasonable doubt, this case is not a good vehicle to

resolve the question presented.

A. Petitioner confessed in great detail to

murdering his wife.

After the first day of jury selection, Petitioner

confessed to a fellow inmate, in explicit detail, to

murdering his wife. This confession undercut

Petitioner’s suicide defense and rendered any error in

the trial court quashing his subpoena for Dennielle’s

privileged records harmless beyond a reasonable

doubt.

A constitutional error is not reversible if the

prosecution can demonstrate it was harmless beyond

a reasonable doubt. Chapman v. California, 386 U.S.

18, 24 (1967). An error is harmless beyond a

reasonable doubt when the guilty verdict was “surely

unattributable to the error,” including when the

properly

admitted

evidence

of

guilt

was

overwhelming. Sullivan v. Louisiana, 508 U.S. 275,

279 (1993); Harrington v. California, 395 U.S. 250,

254 (1969).

Petitioner’s cousin introduced Petitioner to

another inmate in the Denver County Jail because the

inmate frequently gave legal advice to fellow inmates

like Petitioner. R. Tr. 94-96 (May 12, 2016 AM). After

the first day of jury selection for Petitioner’s trial,

Petitioner and the inmate talked about Petitioner’s

case for two hours in one of the jail’s common areas. R.

Tr. 96-97, 137-41 (May 12, 2016 AM).

Petitioner described how during one of their fights

about her affair, Dennielle called her parents to come

pick her up and he had yelled profanities and racial

10

epithets, hoping Dennielle’s parents would hear those

details and react negatively. R. Tr. 104-06 (May 12,

2016 AM).

Petitioner told this inmate that on the night of the

murder, Dennielle said she wanted a divorce, and they

fought “into the wee hours” of the night. R. Tr. 111

(May 12, 2016 AM). During the fight, Petitioner ripped

up some of their wedding photos. R. Tr. 112-13 (May

12, 2016 AM). The fight turned physical, with both

Petitioner and Dennielle throwing things. R. Tr. 11314 (May 12, 2016 AM). Dennielle told him she was

leaving the next day, then went to the basement

bedroom to go to sleep. R. Tr. 114 (May 12, 2016 AM).

According to Petitioner, he then took a shower,

and as he showered, “the more that he thought about

the fights and the more he thought about the

relationship and about letting her go he just got more

and more agitated and angry.” R. Tr. 114 (May 12,

2016 AM). The inmate described how Petitioner’s

demeanor changed and he became agitated and upset

as he talked about his reaction. R. Tr. 115-16 (May 12,

2016 AM).

Petitioner explained that when he got out of the

shower, he dried off, went to get his shotgun, and went

downstairs where Dennielle was sleeping. R. Tr. 11720 (May 12, 2016 AM). He woke her up, and as she

started to get up he shot her in the chest. R. Tr. 12122 (May 12, 2016 AM).

Petitioner said he then went upstairs to clean

himself up and let one of their dogs inside, hoping that

the dog would contaminate the crime scene. R. Tr. 12223, 126 (May 12, 2016 AM). He laid the gun next to her

body and tried to stage the scene to make it look like

11

she committed suicide. R. Tr. 123, 126-27 (May 12,

2016 AM). The jury watched a jail surveillance tape of

Petitioner demonstrating for the inmate how he

positioned the gun. R. Tr. 10-16 (May 12, 2016 PM); R.

Tr. 141-42 (May 12, 2016 AM). Petitioner said

Dennielle was still alive at that point, but unconscious

and breathing heavily. R. Tr. 124 (May 12, 2016 AM).

Petitioner kissed her forehead, then went to work to

create an alibi for himself. R. Tr. 125-26, 128-29 (May

12, 2016 AM).

Petitioner then said that when he got home from

work, he went to move Dennielle’s body onto the bed

and noticed blood trickling from a hole in her back, so

he left her where she was on the floor. R. Tr. 124-25,

130 (May 12, 2016 AM). He then called the police and

told them Dennielle killed herself. R. Tr. 130 (May 12,

2016 AM).

Petitioner asked the inmate if he would testify

that he met Dennielle at a club for sadomasochists and

that they had an affair. Pet. App. 5a. He told the

inmate to say Dennielle committed suicide because

she had been stealing from her family’s restaurant to

fund a sadomasochistic lifestyle and did not want to be

exposed. Pet. App. 5a. He offered to pay the inmate

$25,000 for this testimony. Pet. App. 5a.

The prosecution learned of this confession when

the inmate was questioned about an unrelated assault

in the jail a few days later, and it presented the

inmate’s testimony during the second week of trial.

Pet. App. 4a-5a.

Petitioner’s confession was corroborated by the

evidence at trial and contained details the inmate

could have only learned from Petitioner. For example,

12

the inmate knew the layout of their house, that

Dennielle’s nickname was “Nelly,” that Petitioner and

Dennielle had dogs, and that Petitioner yelled specific

profanities and racial epithets while Dennielle was on

the phone with her parents. Compare R. Tr. 99-101,

104-06, 119-20, 122-23, 126 (May 12, 2016 AM) with

R. Tr. 33, 96-97 (May 3, 2016 AM); R. Tr. 5-9 (May 3,

2016 PM); R. Tr. 41-42 (May 4, 2016 AM); R. Tr. 4-5

(May 12, 2016 AM). The confession was also

corroborated by physical evidence, including ripped up

wedding photos police found in their house and a small

hole on Dennielle’s back from the shotgun blast.

Compare R. Tr. 112-13, 124-25 (May 12, 2016 AM)

with R. Tr. 46-47 (May 4, 2016 AM); R. Tr. 89, 125-131

(May 4, 2016 PM); R. Env 2, Exs, 19-21.

After the prosecution introduced Petitioner’s

detailed and damning confession at trial, his suicide

defense was no longer credible. His confession ensured

that any error in quashing the subpoena for

Dennielle’s mental health records did not contribute

in any way to his conviction for first degree murder.

Sullivan, 508 U.S. at 279; see also Harrington, 395

U.S. at 254.

B. Petitioner

presented

ample other

evidence to support his suicide defense.

Petitioner was also given significant leeway to

present nonprivileged evidence in support of his

suicide defense, rendering any error in excluding

redundant evidence from Dennielle’s privileged

mental health records harmless beyond a reasonable

doubt.

The only circumstances where this Court has

found a violation of a defendant’s right to present a

13

defense is when an evidentiary rule excluded “critical”

defense evidence or deprived the defendant of a

fundamental right, such as testifying in his or her own

defense. See Holmes v. South Carolina, 547 U.S. 319,

327-30 (2006) (rule prohibiting defendant from

presenting evidence that another person committed

the crime violated right to present a defense because

it was arbitrary and excluded significant defense

evidence); Rock v. Arkansas, 483 U.S. 44, 52-57 (1987)

(rule excluding hypnotically refreshed testimony

violated right to present a defense because it excluded

the defendant’s testimony about the crime); Chambers

v. Mississippi, 410 U.S. 284, 301-02 (1973) (rule

excluding evidence that a witness confessed to three

different people that he committed the crime the

defendant was charged with violated the right to

present a defense because the evidence was “critical”

to the defense); Washington v. Texas, 388 U.S. 14, 1623 (1967) (rule prohibiting codefendants, accomplices,

and accessories from testifying violated right to

compulsory process because it precluded defendant

from presenting the testimony of the only other person

who witnessed the crime).

Excluding Dennielle’s privileged mental health

records did not deprive Petitioner of evidence “critical”

to his defense because Petitioner had ample other

opportunities to introduce nonprivileged evidence to

support his suicide defense.

Petitioner presented expert testimony from a

forensic pathologist who opined that Dennielle died

from a self-inflicted gunshot wound. Pet. App. 14a.

The coroner testified that while there was

“compelling” evidence that the cause of Dennielle’s

14

death was homicide, he “could not absolutely exclude

suicide.” Pet. App. 14a; R. Tr. 31 (May 5, 2016 AM).

Petitioner also elicited testimony from Dennielle’s

family and friends that she had discussed suicide with

them but denied that she would ever commit suicide

herself. Pet. App. 13a-14a. He presented evidence that

Dennielle longed to have children but had not been

able to get pregnant, that she was disappointed in her

career, and that her marriage to Petitioner was

unhappy. E.g., Pet. App. 13a-14a. He pointed out that

Dennielle had recently lost a significant amount of

weight and had erratic sleeping habits. R. Tr. 108-110

(May 3, 2016 AM); R. Tr. 60-61 (May 3, 2016 PM).

Dennielle’s brother testified that Dennielle told

him she took a handful of sleeping pills and wandered

away from the house on the night Petitioner

discovered her affair. Pet. App. 14a. And a detective

testified that Petitioner told him Dennielle had sought

mental health treatment at Kaiser Permanente for

depression. R. Tr. 8-9 (May 12, 2016 AM).

Under these circumstances, Petitioner presented

ample evidence supporting his suicide defense, and

the jury’s guilty verdict was surely unattributable to

any error in excluding what would have been

cumulative evidence from Dennielle’s privileged

mental health records, if it existed.

Because any error was harmless beyond a

reasonable doubt, this case is a poor vehicle to resolve

the question presented. This Court should deny the

petition for certiorari review.

15

II. The opinion did not deepen any split, and on

these facts most States would deny in

camera review of the privileged records.

This Court should deny the petition for three

additional reasons.

First, the unpublished, nonprecedential opinion

did not deepen any split in authority, as it applied

longstanding Colorado law holding that a defendant is

not entitled to an in camera review of privileged

records absent a particularized factual showing that

the records are necessary to vindicate the right to

present a complete defense.

Second, Petitioner misstates the degree and

nature of any split in authority, as most jurisdictions

that allow in camera review of privileged records

require defendants to make a particularized factual

showing that the requested records are material,

exculpatory, or necessary to his defense. Because the

psychologist-patient privilege serves significant public

interests, most jurisdictions recognize that requiring

a particularized factual showing of need is necessary

to prevent fishing expeditions into confidential and

privileged materials.

Third and finally, Petitioner asks this Court to

correct the court’s alleged error in declining to review

Dennielle’s privileged mental health records in

camera. However, the court of appeals correctly

concluded that Petitioner’s general and vague proffer

that Dennielle was depressed and might have

discussed her depression with her treatment provider

was not enough to show the records he sought were

necessary to support his suicide defense.

16

Given these circumstances, this Court should not

review this correct, nonprecedential decision.

A. The

unpublished

opinion

longstanding Colorado law.

applied

The unpublished, nonprecedential Colorado

Court of Appeals did not “deepen” any split in

authority. Rather, it applied longstanding Colorado

law.

In 1986, the Colorado Supreme Court held that

absent a waiver from the privilege holder, “the

defendant is not entitled to examine the victim’s postassault psychotherapy records or to have the trial

court review such records in camera on the basis that

the records might possibly reveal statements of fact

that differ from the anticipated testimony of the victim

at trial.” People v. Dist. Court, 719 P.2d 722, 727 (Colo.

1986). Responding to the defendant’s argument that

the Confrontation Clause may require in camera

review in some circumstances, the supreme court held

the defendant “failed to make any particularized

factual showing in support of his assertion that access

to the privileged communications of the victim is

necessary for the effective exercise of his right of

confrontation.” Id.

Subsequent Colorado case law consistently

applied this standard. In Dill v. People, the Colorado

Supreme Court reaffirmed the rule from District Court

and concluded that the defendant’s request to search

the victim’s psychotherapy records for inconsistent

statements “was nothing more than a desire to

conduct a fishing expedition in the hope of discovering

material exculpatory information that he has no

17

reason to believe will be found.” Dill v. People, 927

P.2d 1315, 1324 (Colo. 1996).

Later in People v. Wittrein, the Colorado Supreme

Court resolved the case on non-constitutional grounds

but noted that the psychologist-patient privilege “may

not yield to Wittrein’s bare request for the records,

hoping that they may contain exculpatory

information.” 221 P.3d 1076, 1084 n.7 (Colo. 2009).

The concurrence addressed the Defendant’s

constitutional claims and similarly concluded, “in the

absence of a particularized showing that the records

contain exculpatory information not otherwise

available to the defendant, in camera review is not

required.” Id. at 1088 (Martinez, J., concurring).

And most recently in Zapata v. People, the

Colorado Supreme Court again applied the rule from

District Court and held: “For a court to review

statutorily privileged material, the initial showing

must be more than a ‘vague assertion that the victim

may have made statements to her therapist that

might possibly differ from the victim’s anticipated

trial testimony.’” Zapata v. People, 428 P.3d 517, 529

(Colo. 2019) (quoting Dist. Court, 719 P.2d at 726).

Contrary to Petitioner’s claims, the court of

appeals did not break new ground or deepen any split

in authority; it applied consistent Colorado Supreme

Court precedent when it concluded, “Perez’s simple

assertion that Dennielle may have been depressed and

may have discussed her depression with her mental

health provider does not constitute a particularized

showing that her records are likely to contain

exculpatory material necessary for Perez’s defense

18

that the victim committed suicide.” See Pet. App. 10a13a.

And under Colorado law, unpublished opinions

such as this one do not create precedent for other

cases. Colo. App. Rule 25(e); Yeutter v. Industrial

Claim Appeals Office, ___ P.3d___, 2019 COA 53 ¶22

(Colo. App. 2019) (“Nor do we give precedential weight

to unpublished decisions of other divisions of this

court.”)

B. The nonprecedential opinion did not

deepen any split.

Petitioner also misapprehends the nature of the

split. He groups the case law from jurisdictions around

the country into two broad categories: (1) those

requiring in camera review when a defendant shows

that records “plausibly” or “probably” contain

exculpatory material or there is a “reason to believe”

they may contain such material—standards under

which he insists he would prevail; and (2) those that

either categorically prohibit in camera review, or

impose a “stringent test” of showing, to a “reasonable

certainty,” that evidence necessary to a defense exists

within the records and “will, in fact, be exculpatory”—

standards under which he admittedly would lose. Pet.

9-13. Petitioner places Colorado in the second category

and argues that Colorado’s requirement of a

particularized, factual showing that the records would

be material or exculpatory is an improper,

“heightened” standard that makes Colorado an

outlier. Pet. 32-34. He argues that a defendant should

only need to make “some plausible showing” that

privileged records would be material and relevant to

obtain an in camera review. Id.

19

Actually, Colorado’s rule is the majority view.

Most jurisdictions that allow in camera review of

privileged medical records require defendants to make

a particularized factual showing that the requested

records would be material, exculpatory, or necessary

to the defense or otherwise demonstrate a “compelling

need” for the privileged records. See R.S. v. Thompson

in & for Cty. of Maricopa, 454 P.3d 1010, 1017 (Ariz.

Ct. App. 2019), (requiring “a substantial probability”

that the records contain information that is “critical to

an element of the charge or defense,” or that their

unavailability “would result in a fundamentally unfair

trial”), cert. granted Aug. 25, 2020; State v. Fay, 167

A.3d 897, 911 (Conn. 2017) (requiring a “compelling

need” for the records, including the unavailability of

less intrusive sources of the same information); State

v. Neiderbach, 837 N.W.2d 180, 197 (Iowa 2013)

(upholding statute requiring a reasonable probability

that the information sought is likely to contain

exculpatory information that is “not available from

any other source” and “for which there is a compelling

need” for the defendant to present a defense); State v.

Rehkop, 908 A.2d 488, 496-97 (Vt. 2006) (requiring a

“sufficiently particularized showing” that the records

contain material evidence, and a “need for the

privileged information”); Commonwealth v. Barroso,

122 S.W.3d 554, 563-64 (Ky. 2003) (requiring “receipt

of evidence” sufficient to establish that the records

contain exculpatory evidence that is “both favorable to

the accused and material,” and a “reasonable

likelihood that the records will be necessary to a

determination of guilt or innocence”); State v. Green,

646 N.W.2d 298, 309 (Wis. 2002) (requiring a “factspecific evidentiary showing,” describing “as precisely

20

as possible” the information sought from the records

and how it supports a particular defense); People v.

Stanaway, 521 N.W.2d 557, 574 (Mich. 1994)

(requiring a good-faith belief, “grounded on some

demonstrable fact,” that there is “a reasonable

probability that the records are likely to contain

material information necessary to the defense.”); Dist.

Court, 719 P.2d at 727 (requiring a “particularized

factual showing” that “access to the privileged

communications of the victim is necessary”);

Hathaway v. State, 399 P.3d 625, 637-40 (Wyo. 2017)

(requiring “more than a hunch that some vague type

of record may exist or a conclusory statement that the

information is constitutionally material”).

Only three jurisdictions appear to have adopted

something truly akin to the low “plausibility” standard

that Petitioner favors. Dietrich v. Smith, 701 F.3d

1192, 1197 (7th Cir. 2012) (“plausible showing”); State

v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (‘plausible

showing”); State v. Trammell, 435 N.W.2d 197, 201

(Neb. 1989) (“reasonable ground to believe”). 1

1 Petitioner categorizes Delaware and Vermont as applying a

low “plausibility” standard, but their full standards are bolstered

by other requirements. See Burns v. State, 968 A.2d 1012, 102526 (Del. 2009) (adopting “plausible showing” standard but

requiring a “compelling justification that that information was

needed”); Rehkop, 908 A.2d at 498 (in camera review proper upon

a “sufficiently particularized showing” that the records “may

indeed contain material evidence” and defendant had established

that the evidence was “necessary to his defense”). Petitioner also

cites a Rhode Island advisory opinion, but it only recognized that

a defendant-friendly “reason to believe” standard would pass

constitutional muster; it did not hold that such a standard was

21

And most jurisdictions emphasize that an in

camera review is not constitutionally required upon a

mere allegation that privileged records might contain

information that could be relevant or helpful. See, e.g.,

Green, 646 N.W.2d at 310 (“A defendant must show

more than a mere possibility that the records will

contain evidence that may be helpful or useful to the

defense.”); Zapata 428 P.3d at 529 (“For a court to

review statutorily privileged material, the initial

showing must be more than a ‘vague assertion that the

victim may have made statements to her therapist

that might possibly differ from the victim’s anticipated

trial testimony.’” (quoting Dist. Court, 719 P.2d at

726)).

Recognizing the psychologist-patient privilege

“serves the public interest, since the mental health of

the Nation’s citizenry, no less than its physical health,

is a public good of transcendent importance,” Jaffee v.

Redmond, 518 U.S. 1, 11 (1996), most jurisdictions

require a particularized factual showing that the

records contain material or exculpatory information to

prevent fishing expeditions into privileged records.

See, e.g., Stanaway, 521 N.W.2d at 576 (“The

defendant overstates his case when he asserts that his

right to discovery, confrontation, and effective crossexamination compels that he be granted an

opportunity to discover any potentially exculpatory

evidence. Without a more specific request, defendant

is fishing.”).

constitutionally required. See Advisory Op. to the House of

Representatives, 469 A.2d 1161, 1163-66 (R.I. 1983).

22

The Colorado Court of Appeals applied the

majority standard when it required Petitioner make a

particularized factual showing that the requested

records were “necessary to vindicate a defendant’s

right to present a complete defense.” Pet. App. 11a12a. And it concluded that Petitioner’s general and

vague proffer did not meet that standard. Pet. App.

12a-13a. This reasoning mirrors the reasoning in

cases from the majority of jurisdictions that permit in

camera review of privileged records upon a

particularized factual showing that the requested

records are material, exculpatory, or necessary to the

defense.

Because the Colorado Court of Appeals opinion

applied longstanding Colorado law and the majority

rule nationwide, it does not “deepen” any split in

authority. And under Colorado’s approach—which is

largely the same as most other jurisdictions that allow

in camera review—the Colorado Court of Appeals

decision was correct, as will be discussed next.

C. Petitioner did not make a sufficient

showing to justify in camera review.

Petitioner disagrees with the Colorado Court of

Appeals’ conclusion that Petitioner did not make a

sufficient particularized showing that Dennielle’s

records contained material, exculpatory information

that was necessary to vindicate his right to present a

complete defense and asks this Court to correct the

alleged error. See Pet. 11-12, 29. Because the court of

appeals correctly applied the appropriate standard,

this Court should not grant certiorari review.

As set out above, a defendant must make a

particularized factual showing that the privileged

23

records he seeks contained material, exculpatory

evidence necessary to his defense. Dist. Court, 719

P.2d at 727; Dill, 927 P.2d at 1324. Evidence is

“material” and exculpatory “if there is a reasonable

probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have

been different.” Strickler v. Greene, 527 U.S. 263, 280

(1999) (quoting United States v. Bagley, 473 U.S. 667,

682 (1985)).

Petitioner proffered that Dennielle sought

psychotherapy treatment from Kaiser Permanente

“due to depression surrounding miscarriages and

other issues” and argued that “because she was

depressed, she may have taken her own life.” Pet. App.

31a-32a. Petitioner acknowledged that “there will be

other witnesses presented who will talk about her

wanting to be a mother and her inability to do that and

how that took an emotional toll on her” and that the

psychotherapy records would “be corroborating in that

sense.” Pet. App. 32a. He did not indicate when

Dennielle sought psychotherapy treatment (including

whether it was close in time to her death), that she

sought treatment because she was struggling with

suicidal ideation, or that she had attempted suicide

before. Pet. App. 13a. Nor did he suggest that

Dennielle sought treatment for depression because of

her unhappy marriage or Petitioner’s discovery of her

affair, let alone that she sought treatment because

these circumstances made her suicidal. See Pet. App.

31a-32a, 35a.

Petitioner’s proffer was not a sufficiently

particularized showing that Dennielle’s privileged

mental health records contained material, exculpatory

24

information necessary to his suicide defense. Contrary

to Petitioner’s speculation that Dennielle’s depression

“may” have led her to take her own life, recent studies

suggest that only 2% of individuals treated for

depression in an outpatient setting die by suicide, and

only 1% of women with a lifetime history of depression

die by suicide. See U.S. DEP’T OF HEALTH & HUMAN

SERVS., “Does depression increase the risk for suicide?”

FAQ – Mental Health and Substance Abuse,

https://www.hhs.gov/answers/mental-health-andsubstance-abuse/does-depression-increase-risk-ofsuicide/index.html (last accessed Sept. 11, 2020).

Coupled with Petitioner’s failure to specify when

Dennielle received treatment, whether he had reason

to believe she sought treatment based on expressions

of suicidal ideation, or whether she sought treatment

because she felt suicidal due to her unhappy marriage

or Petitioner’s discovery of her affair, his general,

vague proffer that Dennielle was treated for

depression at some point was not a sufficiently

particularized showing that the privileged records

might have contained exculpatory material.

Petitioner also acknowledged that he could elicit

essentially the same information from nonprivileged

sources, such as Dennielle’s family or friends, so the

privileged records would merely corroborate that

testimony. E.g., Dietrich, 701 F.3d at 1197-98 (noting

“no in camera review of B.T.’s counseling records was

necessary because even if the files contained the exact

information Dietrich speculated existed, that

information was first and foremost immaterial and

cumulative at best”); Fay, 167 A.3d at 911 (defendant

must show information sought was unavailable from

25

other nonprivileged sources); Green, 646 N.W.2d at

310 (“[T]he evidence sought from the records must not

be merely cumulative to evidence already available to

the defendant.”).

Petitioner’s subpoena was ultimately nothing

more than a broad discovery request, hoping that

Dennielle’s privileged records might contain evidence

supporting his suicide defense. See Dill, 927 P.2d at

1324 (“The defendant asserts nothing more than a

desire to conduct a fishing expedition in the hope of

discovering material exculpatory information that he

has no reason to believe will be found.”). Given

society’s paramount interest in protecting privileged

documents from disclosure—here, the substantial

interest in encouraging citizens to seek and obtain

effective mental health treatment—the Sixth and

Fourteenth Amendments did not require the court to

conduct an in camera review of Dennielle’s privileged

records based on Petitioner’s general and vague

proffer.

The trial court did not err in quashing Petitioner’s

subpoena for Dennielle’s mental health records

without reviewing them in camera because Petitioner

failed to make a sufficiently particularized showing

that the records might contain material, exculpatory

evidence necessary to his defense. Under these

circumstances, the Colorado Court of Appeals

correctly concluded that the Sixth and Fourteenth

Amendments did not require an in camera review of

Dennielle’s records covered by the psychologistpatient privilege.

26

CONCLUSION

Because Petitioner’s confession and presentation

of other evidence supporting his suicide defense

rendered any error harmless beyond a reasonable

doubt, and because Petitioner was not entitled to an

in camera review of Dennielle’s privileged records

under any standard, the petition for writ of certiorari

should be denied.

PHILIP J. WEISER

Attorney General

ERIC R. OLSON

Solicitor General

Respectfully submitted,

Digitally signed by L.

L. Andrew

Andrew Cooper

Date: 2020.09.11

Cooper

-06'00'

OOPER

L. ANDREW C16:18:52

Deputy Attorney

General

Counsel of Record*

Office of the Colorado

Attorney General

1300 Broadway, 10th Floor

Denver, Colorado 80203

andrew.cooper@coag.gov

(720) 508-6400

BRITTANY L. LIMES

Assistant Attorney

General

Counsel for Respondent

September 11, 2020