Peo v. Blake

22CA2255 Peo v Blake 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2255
El Paso County District Court No. 21CR951
Honorable Samuel A. Evig, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dermot Andrew Blake,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Sullivan and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Dermot Andrew Blake, appeals his conviction for

one count of first degree murder and two counts of child abuse. On

appeal, Blake raises a single issue: whether the trial court

reversibly erred in denying his motion for a mistrial based on the

prosecution’s untimely disclosure of the contents of the victim’s cell

phone. We conclude it didn’t and affirm.

I. Background

¶2 A little after midnight on February 20, 2021, Blake shot and

killed his wife in their family home. A neighbor’s security system

captured the sound of gunshots and screaming from Blake’s home

at the time of the shooting. Blake shot the victim eleven times over

the course of approximately four minutes. The final seven gunshots

occurred within ten seconds.

¶3 Blake and the victim have two children together, and those

children were in the home at the time of the shooting. The noise

from the shooting woke up the two children, who left their bedroom

and saw Blake shoot and kill their mother.

¶4 Shortly after the shooting, Blake called 911 and reported that

he had just shot his wife. Responding officers found the victim on a

landing outside of the master bedroom. They also found what was

1
believed to be the victim’s cell phone on the bed in the master

bedroom.

A. Pretrial CRE 404(b) Litigation

¶5 In advance of trial, the defense filed a “Motion for Notice of

404(b) Evidence and Objection to the Introduction of Any Such

Evidence at Trial.” The prosecution didn’t file an intent to introduce

any CRE 404(b) evidence. Yet at a subsequent motions hearing, the

prosecutor requested to introduce evidence of a previous allegation

that Blake had struck the victim and broke her jaw.1 Defense

counsel objected and requested that the trial court enter an order

barring the prosecution from introducing any CRE 404(b) evidence

at trial because the prosecution didn’t file a timely notice of intent

to introduce such evidence.

¶6 The trial court agreed with defense counsel and excluded any

CRE 404(b) evidence from the prosecution’s case-in-chief.

1 The prosecution also requested to introduce evidence that Blake

had filed for divorce in 2019 and that the request was later
“mutually withdrawn.”

2
B. Blake’s Trial

¶7 Blake’s jury trial started on November 1, 2022. Blake’s theory

of defense at trial was that he was intoxicated and shot the victim

impulsively and without the deliberation required for first degree

murder. Blake’s defense also focused on the lack of evidence of

what happened immediately before the shooting, arguing that based

on the lack of any other explanation, he must have “snapped.” The

prosecution’s theory at trial was that circumstantial evidence,

including the number and timing of shots, was indicative of

deliberation.

¶8 Neither side presented much evidence about what happened in

the family home immediately before the shooting. But the

prosecution did present evidence as to what happened earlier in the

evening before the shooting. In that regard, Brian Bethea, an

acquaintance of Blake, testified that Blake was at a bar with him

before the shooting. He testified that while at the bar, Blake had

“seemed kind of like paranoid or kind of wanting to argue back with

[him] a little bit.”

¶9 As for the CRE 404(b) evidence the trial court had excluded,

shortly after opening statements, the prosecutor told the trial court

3
and the defense that the prosecution would argue that the defense

opened the door to CRE 404(b) evidence if the defense introduced

any evidence regarding the prior interactions between Blake and the

victim.

¶ 10 On the fourth day of trial — Friday, November 4, 2022 — and

between prosecution witnesses, the prosecutor put the defense on

notice that if Blake testified, the prosecutor may seek to introduce

(1) the CRE 404(b) evidence that was the subject of pretrial

litigation and (2) the contents from a download of the victim’s cell

phone. The prosecutor explained that if Blake testified about what

happened between him and the victim immediately before the

shooting or any other “incidents” between them, then “there’s a lot

of information in [the victim’s] phone that would go to rebut that

testimony.”

¶ 11 Defense counsel argued against the prosecutor’s introducing

any CRE 404(b) evidence and “any of the friends’ text messages.”

The prosecutor later clarified to the trial court and the defense that

the CRE 404(b) evidence included “all the prior times the

[d]efendant ha[d] threatened the life of the victim, that he ha[d]

4
physically assaulted her, and that he ha[d] threatened to kill her if

she left him.”

¶ 12 There is no further explanation in the trial transcript about

the specific evidence from the victim’s cell phone that the

prosecution would have used in rebuttal. But the affidavit for the

search warrant of the victim’s cell phone included information from

the victim’s friends that (1) one friend had photographs of the victim

with bruises caused by Blake; and (2) the victim was planning to

take her children and leave Blake on February 19, 2021, but

decided to wait until the next morning.

¶ 13 The trial court paused the discussion regarding the cell phone

contents until the end of the day so that the trial could proceed.

After the trial day ended and the court sent the jury home for the

evening, the parties revisited the issue. Defense counsel indicated

that the evidence from the victim’s cell phone hadn’t been disclosed

to them previously. Defense counsel explained that in April 2021

the prosecution had disclosed what the prosecution had thought to

be the contents of the victim’s cell phone. But defense counsel

stated that the file the prosecution provided only contained “a

warrant and eight or ten pictures.”

5
¶ 14 Defense counsel went on to explain that sometime after

reviewing the April 2021 disclosure, they asked the prosecutor if

that was the entire file, and in March 2022, the prosecution

responded by turning over to the defense a hard drive with what

they purported was the entire file. That hard drive, however,

contained only photographs of the victim’s cell phone itself and the

search warrant that permitted law enforcement to seize and search

the cell phone.

¶ 15 Because it was Friday, defense counsel requested that the trial

court give them the weekend to review the cell phone contents and

finalize their remedy request, but counsel preliminarily indicated

that they believed that the late disclosure was a “discovery

violation.”

¶ 16 After returning to court on Monday, November 7, 2022,

defense counsel requested a mistrial due to the prosecution’s

untimely disclosure of the contents of the victim’s cell phone.

Defense counsel argued that the prosecution had violated Brady v.

Maryland, 373 U.S. 83 (1963), and Crim. P. 16 by failing to disclose

this cell phone data. Defense counsel explained that they followed

up with the prosecution after receiving the April 2021 disclosure to

6
make sure the file was complete, and the prosecution hadn’t given

them access to the data at that time. Therefore, they argued, they

didn’t have access to the contents of the victim’s cell phone until

the prosecution disclosed it to them midtrial.

¶ 17 Defense counsel also told the court that they conducted a

preliminary review of the cell phone contents over the weekend.

From that review, defense counsel found a sexually explicit

photograph from a male paramour of the victim and some text

messages between the victim and the photograph’s sender

indicating that they were having an extramarital affair. Defense

counsel didn’t mention any other specific contents of the victim’s

cell phone to the trial court during their argument for a mistrial.

¶ 18 In sum, defense counsel argued that the late-disclosed data

“affects . . . all the decisions that we’ve made.” Defense counsel

noted that they would now want to interview the sender of the text

messages. Ultimately, defense counsel concluded that the trial

7
court should declare a mistrial because they couldn’t review the

data completely until after trial due to its large volume.2

¶ 19 The prosecutor responded that the prosecution had disclosed

the cell phone contents to the defense previously and that it wasn’t

their fault if the defense couldn’t access it. The prosecutor also

argued that other portions of the discovery provided to the defense

referenced the victim allegedly being engaged in an extramarital

affair, so the defense was on notice that such a relationship existed.

Specifically, the prosecutor pointed out that one of the victim’s

acquaintances had told police that the victim and an alleged

paramour had a date scheduled for the week before or the week of

the shooting. The prosecutor further indicated that the

acquaintance had met with the defense before trial and told the

defense investigator about the victim’s “love life.”

2 There is no dispute that the download of the victim’s cell phone

contents was voluminous (approximately 100 gigabytes). But the
only potentially material evidence that the defense found over the
weekend from the download was limited to a few generally romantic
text messages and one explicit photograph from the sender of the
romantic text messages. Since that time (including on appeal), the
defense hasn’t identified any other potentially material evidence
from the victim’s cell phone.

8
¶ 20 Finally, the prosecutor explained that he assumed that

defense counsel was arguing that this data would have led them to

investigate a heat of passion defense for trial. But the prosecutor

argued that to support a heat of passion defense, the defense would

need to show that Blake knew about these text messages and

photograph at the time of the shooting. The prosecutor contended

that the defense wouldn’t be able to show this link.

¶ 21 In rebuttal, defense counsel summed up their argument for a

mistrial, explaining,

It literally changes the witnesses we would
endorse, the witness[es] we would call, our
advice to Mr. Blake about whether he should
testify or not, the nature of that testimony.
This literally shifts everything in a different
direction from where we are headed now and
where we have been headed.

¶ 22 After returning to court the next day, the trial court found that

the prosecution had “compl[ied]” with its discovery obligations,

pointing out that the prosecution didn’t withhold the evidence in

bad faith and “[i]n fact, the record demonstrates [the prosecution’s]

efforts to discover it and their efforts to provide it.” The trial court

also explained that “the [d]efense knew the existence of the

download from the victim’s cell phone and the report contains a

9
spreadsheet of call logs” and that even though the defense couldn’t

access the information, “[t]hey had reason to know it” existed. The

trial court determined that the defense “had some obligation to

alert” the prosecution that the download they had received didn’t

include the contents of the victim’s cell phone.

¶ 23 Next, the trial court found that the defense hadn’t established

that the evidence would be exculpatory. The trial court explained

that it was a possibility that the evidence could have potentially

supported a heat of passion defense, but that there was “a link

missing” and that “Blake would have to [have been] aware of those

messages for them to serve as a potential driver with the heat of

passion instruction.” The trial court also noted that the evidence

was actually potentially inculpatory because the “fact that [the

victim] may have had a relationship with someone else . . . is

something that is so far lacking in the [p]rosecution’s case. It

provides a motive for a homicide.”

¶ 24 In terms of whether any late disclosure of the victim’s cell

phone contents prejudiced the defense, the trial court said,

“Potentially, the information could lead to other witnesses. And

that is a potentiality; it’s not a demonstrated fact. Potentially, it

10
might [lea]d to another defense being offered. But on the state of

the evidence right now, that too is speculative. That too is a

potentiality.”

¶ 25 The trial court ended by explaining that a mistrial “is

warranted only when the prejudice is too substantial to be remedied

by any other means.” It explained that before a mistrial is

warranted, “manifest necessity” must be shown and that it is shown

“when the [c]ourt finds in its discretion that the interest of public

justice would not be served by continuing the proceedings.” The

trial court then concluded that the defense hadn’t shown the

requisite manifest necessity to justify declaring a mistrial and,

therefore, denied the defense’s motion.

¶ 26 Blake’s trial resumed. At no point did the prosecution, the

defense, or any witnesses mention the contents of the victim’s cell

phone or the victim’s alleged extramarital affair. Blake didn’t

testify, and the prosecution didn’t seek to introduce any CRE 404(b)

evidence. During the jury instruction conference, defense counsel

requested a heat of passion jury instruction. The trial court

declined to give such an instruction due to the absence of evidence

11
supporting heat of passion. Ultimately, the jury found Blake guilty

of first degree murder and two counts of child abuse.

II. Analysis

¶ 27 On appeal, Blake contends that the trial court abused its

discretion when it denied his motion for a mistrial. We disagree. In

reaching this conclusion, we first discuss our standard of review

and the legal principles underlying an alleged Brady and Crim. P.

16 violation. We then turn to whether the prosecution failed to

timely disclose the contents of the victim’s cell phone and whether

the trial court made specific findings on the question, including

whether it was defense counsel’s fault they couldn’t access the data

earlier. We also analyze whether the trial court misunderstood the

law regarding the parties’ obligations during disclosure.

¶ 28 After analyzing the trial court’s findings, we assume for the

purpose of our analysis that the prosecution did fail to timely

disclose this evidence to the defense (and that the trial court erred

in concluding otherwise). With that assumption in mind, we

address whether the late-disclosed evidence was (1) exculpatory and

(2) material under Brady, concluding that the trial court correctly

determined that it wasn’t.

12
A. Standard of Review and Legal Principles

¶ 29 We review the denial of a motion for a mistrial for an abuse of

discretion. People v. Johnson, 2017 COA 11, ¶ 39. “A trial court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or based on an erroneous understanding

or application of the law.” Id. A mistrial is a drastic remedy and is

warranted only when prejudice to the accused is so substantial that

its effect on the jury can’t be remedied by other means. People v.

Ned, 923 P.2d 271, 274 (Colo. App. 1996).

1. Brady

¶ 30 Whether there was a Brady violation presents a mixed

question of law and fact. People v. Bueno, 2018 CO 4, ¶ 20 (citing

Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 827 (10th Cir.

1995)). When reviewing a mixed question of law and fact, we review

the trial court’s findings of fact for clear error and its conclusions of

law de novo. Id. A trial court clearly errs if its factual finding is

without support in the record. Id.

¶ 31 The U.S. and Colorado Constitutions guarantee a defendant

due process of law. U.S. Const. amends. V, XIV; Colo. Const. art.

II, § 25. The U.S. Supreme Court in Brady held that “suppression

13
by the prosecution of evidence favorable to an accused . . . violates

due process where the evidence is material either to guilt or to

punishment.” 373 U.S. at 87. Suppression under Brady occurs

when the prosecution fails to disclose exculpatory and material

evidence to the defense.3 Smith, 50 F.3d at 824. This obligation

exists independent of a request for such evidence by the defense.

United States v. Agurs, 427 U.S. 97, 110-11 (1976), abrogated on

other grounds by, United States v. Bagley, 473 U.S. 667, 682 (1985).

Further, whether the prosecution acts in good or bad faith in failing

3 Although the formulation of the suppression test under Brady v.

Maryland, 373 U.S. 83 (1963), includes whether the evidence was
exculpatory and material, Colorado courts seem to separate this
analysis into three distinct inquiries. Courts first address whether
evidence was “suppressed” — that is, not disclosed when it should
have been — and then separately address whether the evidence was
exculpatory and material. See, e.g., People v. Bueno, 2018 CO 4,
¶ 42 (explaining that “because the trial court correctly concluded
that the prosecution neither disclosed this evidence nor made it
available to Bueno, we conclude that the prosecution did not satisfy
its Rule 16 obligations and that it instead suppressed this evidence
for Brady purposes” and then analyzing whether the evidence was
exculpatory and material); People v. Flynn, 2019 COA 105, ¶¶ 26-27
(“The first question is whether evidence was suppressed.
Suppression occurs when a prosecutor fails to disclose evidence,
regardless of whether the prosecutor acts in bad faith.”). Our Brady
analysis therefore will follow this three-part test of (1) whether there
was a failure to disclose; (2) whether the evidence was exculpatory;
and (3) whether the evidence was material.

14
to disclose evidence is irrelevant to determining whether there was a

Brady violation. Kyles v. Whitley, 514 U.S. 419, 432 (1995).

¶ 32 “[E]vidence is exculpatory for Brady purposes if it tends to

mitigate the likelihood of guilt or the severity of the sentence.”

Bueno, ¶ 31. Evidence is material for Brady purposes “if there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.”

Bagley, 473 U.S. at 682. “A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” Id.

2. Crim. P. 16

¶ 33 Crim. P. 16(I)(a)(1) requires prosecutors to “make available”

enumerated “material and information which is within [their]

possession or control.” Crim. P. 16(I)(a)(2) requires prosecutors to

“disclose to the defense any material or information within [their]

possession or control which tends to negate the guilt of the accused

as to the offense charged or would tend to reduce the punishment

therefor.” Colorado courts have consistently interpreted this

requirement as coextensive with Brady’s materiality standard.

Bueno, ¶ 28; see also In re Att’y C, 47 P.3d 1167, 1170-71 (Colo.

2002) (“Hence, the materiality standard of Brady . . . applies to Rule

15
16 disclosures in Colorado.”). We therefore evaluate Blake’s Rule

16 claim using Brady’s materiality standard.

B. Failure to Disclose

¶ 34 First, we address whether the prosecution failed to timely

disclose to the defense the contents of the victim’s cell phone and

whether the trial court made specific findings on that question.

¶ 35 The trial court found that the prosecution had complied with

its discovery obligations. On appeal, Blake argues that in reaching

that conclusion, the trial court erroneously considered (1) the

prosecution’s good faith and (2) that the defense should have

known about the missing evidence. We agree with Blake that to the

extent the trial court’s conclusion rests on a finding that the

prosecution acted in good faith or that the defense should have

known about the missing evidence and thus requested it, that was

error. See Kyles, 514 U.S. at 432; Agurs, 427 U.S. at 110-11; see

also Bueno ¶ 40 (“[T]he defense need not search for a needle in a

haystack . . . .”).

¶ 36 To the extent that the trial court’s conclusion rests on a

finding that the defense couldn’t access the data because of a

technological problem on the defense’s end, this would be a proper

16
basis for concluding the prosecution didn’t fail to disclose the data,

assuming that this finding was supported by the record. But the

evidence — or representations made by the prosecution and defense

during argument — was disputed on this issue. And the trial court

didn’t make any findings or resolve this factual dispute in its ruling.

Indeed, the court explicitly didn’t resolve this factual dispute.4

Therefore, this can’t provide an alternate basis for the trial court’s

finding that the prosecution “compl[ied]” with their discovery

obligations. Accordingly, there is no basis in the record to support

the trial court’s finding that the prosecution “compl[ied]” with its

discovery obligations.

4 In making this finding, the trial court explained, “I don’t know how

the download failed and I don’t quite understand why the [d]efense
couldn’t access that information, but the [p]rosecution made all the
appropriate efforts to fulfill their obligations.” At the end of the trial
court’s ruling, defense counsel responded to this factual question,
stating that “the [c]ourt kept referring to the fact that we couldn’t
access the information. That’s just factually incorrect,” and
concluding that “it wasn’t an issue with access or ability or any of
that. We got what they sent us.” The trial court responded, “Okay.
I understand, and I definitely think you’re correct in terms of the
contents of it. But again, I don’t know exactly how that disconnect
occurred, in terms of what you got versus what they provided. So I
do think that that part of it is correct.”

17
¶ 37 Still, the lack of record support for the trial court’s finding that

the prosecution complied with its discovery obligations doesn’t

establish the opposite: that the prosecution failed to comply with

those obligations. In any event, for purposes of our analysis, we

will assume without deciding that the prosecution failed to disclose

the evidence to the defense in a timely manner and that the trial

court erred by making a contrary finding.5

C. Exculpatory Nature

¶ 38 Next, we turn to whether the late-disclosed evidence was

exculpatory under Brady. The trial court found that it wasn’t. We

agree.

¶ 39 Both during the litigation of his motion for a mistrial and on

appeal, Blake’s discussion of the potentially material evidence on

the victim’s cell phone is limited to a sexually explicit photograph

and texts between the victim and another man that are strongly

5 By assuming that the prosecution failed to disclose, and thus

“suppressed,” the evidence, we aren’t also assuming that the
evidence was exculpatory and material as the definition of
suppression under Brady often includes. See Bueno, ¶ 30
(“[S]uppression for Brady purposes occurs where prosecutors fail to
disclose material and exculpatory evidence to the defense.”). We
merely assume that the prosecution didn’t timely disclose evidence
to the defense that they should have disclosed.

18
indictive of a romantic relationship between the sender and the

victim. Blake contends that this evidence was exculpatory because

it tends to mitigate the likelihood that Blake shot the victim after

deliberation, the required mens rea for first degree murder. He

argues that the evidence instead supports an inference that Blake

shot the victim in the heat of passion after finding the text

messages and photograph on her phone indicating that she was

having an extramarital affair.

¶ 40 The defendant bears the burden of establishing a Brady

violation. Bueno, ¶ 29; see Smith, 50 F.3d at 824. We agree with

the trial court that Blake didn’t meet this burden for two reasons:

The evidence is only potentially exculpatory with additional

evidence; and without that additional evidence, it is either irrelevant

or inculpatory.

19
¶ 41 First, the evidence that the victim was having an extramarital

affair is potentially exculpatory under a heat of passion defense6

only with additional evidence that would have supported the

elements of this defense. To be entitled to a heat of passion jury

instruction,

the defendant must produce evidence in
support of the second-degree murder mitigator
showing that: (1) the act causing the death
was performed upon a sudden heat of passion;
(2) caused by a serious and highly provoking
act of the intended victim; (3) which was
sufficient to excite an irresistible passion in a
reasonable person; and (4) between the
provocation and the killing, an insufficient
interval of time passed for the voice of reason
and humanity to be heard.

Cassels v. People, 92 P.3d 951, 956 (Colo. 2004); see also § 18–3–

103(3)(b), C.R.S. 2025 (second degree murder statute).

6 During defense counsel’s argument in support of their motion for

a mistrial to the trial court, they initially argued that the
suppressed evidence could support self-defense in addition to a
heat of passion defense. After questioning from the trial court,
defense counsel ultimately agreed with the trial court that the cell
phone evidence “neither supports nor contradicts self-defense.” On
appeal, Blake doesn’t contend that the evidence supported a self-
defense claim and instead focuses his argument on the heat of
passion defense. We therefore focus only on heat of passion as well.

20
¶ 42 In finding no Brady violation, the trial court noted that there

was a “link missing” between the contents of the cell phone and a

heat of passion defense. We agree that additional evidence was

needed for the cell phone contents to be exculpatory.

¶ 43 This additional evidence would include something like (1) not

only did Blake actually see the text messages and photograph

before the shooting, but also he first saw them close in time to

shooting the victim; (2) finding the text messages and photograph

would reasonably inflame someone so much that they would have

been provoked to shoot their wife; and (3) there was no time for

Blake to calm down between seeing the text messages and

photograph and shooting his wife.

¶ 44 Neither during trial nor on appeal has Blake provided this

evidence or an offer of proof that such evidence exists. See Smith,

50 F.3d at 824. At trial, defense counsel only generally said that

the late-disclosed evidence would have changed their trial strategy.

This by itself isn’t a sufficient offer of proof. During their argument

to the trial court, defense counsel explained that they probably

would have called different witnesses to testify at trial. The closest

counsel came to providing any specifics in this regard was saying

21
“that Mr. Bethea [Blake’s acquaintance who was with him at a bar

earlier in the evening of the shooting] and other witnesses could

have testified that Mr. Blake thought he was being cheated on” and

that those witnesses would have been able to provide testimony

that Blake knew about the victim’s extramarital affair.

¶ 45 But the evidence recited in this proffer undermines any alleged

exculpatory value of the evidence, as even if Mr. Bethea or others

had offered this testimony, it would have cut against a heat of

passion theory. This is so because testimony that Blake knew

about the affair prior to the shooting — and not that he learned of it

immediately before the shooting — cuts against the notion that he

committed the act under heat of passion. Instead, such evidence of

Blake’s prior knowledge of the affair would have provided motive

and further support that he acted after deliberation.

¶ 46 The proffer therefore didn’t include a sufficient explanation of

how the defense would have tried to prove that Blake knew about

the affair immediately before the shooting and that this knowledge

led to the shooting. As a result, based on the argument presented

at trial, the contents of the victim’s cell phone didn’t “tend[] to

22
mitigate the likelihood of [Blake’s] guilt” without additional

evidence. Bueno, ¶ 31.

¶ 47 At most, the data was “potentially useful.” People v. Eason,

2022 COA 54, ¶ 38. If the cell phone data wasn’t “apparently

exculpatory, but only potentially useful, [Blake could] alternatively

establish[] a due process violation if he shows that the [prosecution]

suppressed or destroyed the evidence in bad faith.” Id. (citing

Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988)). Here, though,

Blake doesn’t allege that the prosecution withheld the contents of

the victim’s cell phone in bad faith, so he hasn’t established a due

process violation under this alternate route either.

¶ 48 Second, without this additional evidence, the contents of the

victim’s cell phone are either irrelevant or inculpatory. As

discussed before, the text messages and the photograph are

relevant only if Blake saw them before the shooting. Furthermore,

it’s as likely — if not more likely — for the evidence to be

inculpatory by providing a motive for the shooting, something the

prosecution was missing at trial. In other words, the text messages

and photograph could show that Blake killed the victim because

she was having an extramarital affair. See People v. Jowell, 199

23
P.3d 38, 43 (Colo. App. 2008) (“[T]he defendant does not have a due

process right to receive notice of inculpatory evidence . . . .”); Gray

v. Netherland, 518 U.S. 152, 168 (1996) (discussing that Brady

didn’t create a general right to discovery in a criminal case and only

addressed exculpatory evidence).

¶ 49 We aren’t persuaded otherwise by Bueno, in which the

supreme court explained that “undisclosed evidence need not be

admissible to satisfy Brady; it need merely lead to the possible

discovery of other evidence.” Bueno, ¶ 44 n.12. In Bueno, the

defendant was charged with killing a fellow inmate at a state prison.

Id. at ¶ 1. The prosecution didn’t disclose to the defense two

reports written by correctional facility staff until fifteen months after

Bueno’s conviction. Id. Those reports contained evidence that a

white supremacist group had planned to murder white inmates. Id.

Bueno was convicted of murdering a white inmate. Id. at ¶ 43. The

trial court in Bueno found that the prosecution violated Brady’s

disclosure requirements because the reports were exculpatory and

material to the defense. Id. at ¶¶ 1, 43-45.

¶ 50 The supreme court agreed and concluded that the trial court

didn’t abuse its discretion in ordering a new trial due to the Brady

24
violation. Id. at ¶ 3. But there is a key difference between the late-

disclosed evidence in Bueno and the late-disclosed evidence here.

In Bueno, the supreme court found that the withheld reports “bear

directly on the issue of the murderer’s identity.” Id. at ¶ 46. But

here, the victim’s cell phone contents in isolation didn’t bear

directly on heat of passion; instead, other evidence was necessary

before the late-disclosed evidence could have any bearing on a

disputed issue. And the defense didn’t — and still doesn’t on

appeal — explain what other evidence the victim’s cell phone

contents could have led them to that would have borne directly on

heat of passion. Thus, because the evidence in Bueno bore directly

on the key issue at trial — the identity of the killer — it was

material. Such a strong connection to a key issue in trial, as

explained above, is not present here.

¶ 51 Finally, Blake argues that the trial court applied a higher

standard for whether evidence is exculpatory by stating that the

evidence here wasn’t “clearly exculpatory.” Blake contends that the

evidence only needs to “tend to mitigate the likelihood of guilt” to be

exculpatory.

25
¶ 52 We disagree that the trial court applied a higher standard for

evaluating whether the late-disclosed evidence was exculpatory.

The trial court noted that the messages “show a motive for Mr.

Blake potentially to have a reason to be angry with [the victim] and

potentially establish a motive to murder [the victim].” The trial

court then explained that it was “having trouble finding that [this

evidence] is exculpatory evidence,” which makes sense given that

additional evidence — which wasn’t proffered — was required before

the late-disclosed evidence could have any exculpatory value.

Simply put, the record demonstrates that the trial court correctly

applied the standard of “tend[ing] to mitigate the likelihood of guilt,”

Bueno, ¶ 31, and correctly determined that the contents of the

victim’s cell phone weren’t exculpatory.

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D. Materiality

¶ 53 Third, we turn to whether the evidence was material under

Brady. The trial court found that the contents of the victim’s cell

phone weren’t material under Brady.7 We agree.

¶ 54 Blake argues that had the cell phone data been turned over to

the defense in a timely manner, there is a reasonable probability

that the jury would have found Blake not guilty of first degree

murder. Specifically, Blake contends that there was no evidence

about what occurred in the family home prior to the shooting. He

further argues that these text messages and photograph now shed

some light on what may have happened before the shooting,

introducing the possibility that Blake saw the text messages and

photograph and shot the victim in an impulsive state. Blake also

7 During argument, the defense and trial court focused primarily on

whether the defense was “prejudiced” by the late disclosure of the
cell phone contents. The materiality standard under Brady often is
explained in terms of “prejudice” to the defense and the terms are
often used interchangeably. See, e.g., Strickler v. Greene, 527 U.S.
263, 281-82 (1999) (“There are three components of a true Brady
violation: The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” (emphasis added)).
To stay consistent within this opinion and with other divisions of
this court, we refer to Brady’s third prong as “materiality.”

27
argues that his conduct before and after the shooting was

consistent with someone who “snapped and lost control.” In sum,

Blake contends that a defense case based on a heat of passion

theory would have been much stronger than the theory he pursued

at trial — namely, that Blake was intoxicated and shot the victim

impulsively and without the deliberation required for first degree

murder.

¶ 55 Blake bears the burden of establishing that the evidence was

material. Bueno, ¶ 29; see Smith, 50 F.3d at 824. Blake didn’t

meet this burden for two reasons.

¶ 56 First, Blake’s explanation of materiality to the trial court and

on appeal is vague and speculative. To the trial court, defense

counsel stated that the evidence would have led them to “probably

run[ing] a different defense” and that “it literally changes the

witnesses we would endorse, the witness[es] we would call, our

advice to Mr. Blake about whether he should testify or not, the

nature of that testimony.” But defense counsel didn’t explain how

the evidence would have changed the witnesses they would have

called or how their advice to Blake would have changed. Nor is

there any articulation or proffer as to what Blake would have

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testified to at trial had he chosen to do so. Without more, defense

counsel’s argument for materiality “does not rise to the level of more

than the kind of ‘vague assertion’ we have deemed inadequate to

mandate disclosure.” Zapata v. People, 2018 CO 82, ¶ 55. Without

more specific information about how having the victim’s cell phone

contents before trial would have impacted the evidence presented at

trial, Blake’s articulation of materiality remains vague and

speculative.

¶ 57 Nor are we persuaded that the sheer volume of the

undisclosed evidence — approximately 100 gigabytes — renders the

nondisclosure inherently material and prejudicial. While we

wouldn’t expect defense counsel to review the entire file between its

disclosure on a Friday and defense counsel’s Brady argument to the

trial court on the following Monday, it has now been more than two

years since the prosecution disclosed the file to defense counsel.

Yet on appeal Blake’s argument still exclusively focuses on the one

sexually explicit photograph and chain of romantic text messages

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purporting to show an affair between the sender and the victim.8

Thus, we aren’t persuaded that the sheer volume of the late-

disclosed evidence has a bearing on the materiality or prejudice

analysis.

¶ 58 Second, the evidence against Blake at trial was overwhelming.

See People v. Mendez, 2017 COA 129, ¶ 45 (noting the

overwhelming evidence at trial supporting the defendant’s

conviction and concluding that although the prosecutor violated

Brady, “there is no reasonable possibility that the district court’s

failure to provide an adequate sanction ‘might have contributed to

the conviction’” (quoting Hagos v. People, 2012 CO 63, ¶ 11)). At

trial, Blake didn’t contest that he fatally shot the victim. Instead,

the primary issue at trial was whether he had the required mens

rea for first degree murder. The evidence against Blake in this

regard included that (1) Blake was in a confrontational mood earlier

in the evening with his friend at a bar; (2) the audio of the

neighbor’s security camera recording captured that the shots

8 Although not admitted at trial or shown to the jury, the entire

contents of the victim’s cell phone that were disclosed during trial
are included in the trial court record and the record on appeal
lodged with this court.

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spanned three minutes and fifty-five seconds; (3) his two young

daughters saw the shooting firsthand; and (4) Blake himself called

911 and confessed to shooting and killing the victim. As mentioned

above, there was no evidence or proffer that Blake had just found

out about the victim’s extramarital affair or even that he knew the

extramarital affair existed. Given the strength of the evidence

against Blake at his trial, there isn’t “a reasonable probability that,

had the [contents of the victim’s cell phone] been disclosed to the

defense, the result of the proceeding would have been different.”

Bueno, ¶ 32 (quoting Bagley, 473 U.S. at 676).

¶ 59 Moreover, there is support in the record for the trial court’s

observation that the discovery already disclosed to the defense

contained references to the victim’s extramarital affair. This means

that the prosecution’s late disclosure of the cell phone contents

wasn’t the first time the defense had access to evidence about an

alleged extramarital affair, further mitigating any prejudice.

¶ 60 Blake also argues that it’s unclear if the trial court applied the

correct materiality standard because it didn’t explain the

“reasonable probability” standard it applied during its ruling. We

disagree. In its ruling on the defense’s motion for a mistrial, the

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trial court noted that the defense’s articulation of prejudice was

“speculative” and that “potentially the information could lead to

other witnesses,” and but it concluded that, too, was “speculative.”

These findings regarding the speculative nature of Blake’s prejudice

and materiality arguments are wholly consistent with the trial court

considering whether there was a reasonable probability that the

late-disclosed evidence might have contributed to Blake’s

conviction. Therefore, we aren’t persuaded that the trial court

applied an incorrect legal standard regarding materiality under

Brady.

¶ 61 Because the trial court’s determinations support a legal

conclusion that the prosecution didn’t violate Brady, we conclude

that it didn’t abuse its discretion by denying Blake’s motion for

mistrial.

E. Remaining Contention

¶ 62 Finally, Blake argues that the trial court applied the incorrect

standard in determining whether a mistrial was warranted. The

trial court analyzed whether the defense had shown “manifest

necessity.” We agree that manifest necessity is only required when

the defense doesn’t consent to the motion for a mistrial. See People

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v. Berreth, 13 P.3d 1214, 1216 (Colo. 2000) (“If a criminal trial is

terminated prior to its completion, double jeopardy will bar a

second trial unless the trial court has sufficient legal justification

for declaring a mistrial over the defendant’s objection. Such

justification exists only if, under all the circumstances of the case,

there is a ‘manifest necessity’ for the mistrial.” (citations omitted)).

¶ 63 Here, the defense asked for the mistrial and thus consented to

the requested mistrial, meaning the trial court applied the incorrect

manifest necessity standard to the defense’s request. But

ultimately, because the trial court correctly analyzed whether the

evidence was exculpatory and material and used that analysis to

find that there was no Brady violation, the manifest necessity

analysis was unnecessary to the trial court’s conclusion that a

mistrial wasn’t warranted.

III. Disposition

¶ 64 The judgment is affirmed.

JUDGE SULLIVAN and JUDGE BERNARD concur.

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