Peo v. Whiteside

24CA1992 Peo v Whiteside 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1992
El Paso County District Court No. 24CR312
Honorable Samuel A. Evig, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Brandon Michael Whiteside,

Defendant-Appellee.

ORDER AFFIRMED

Division V
Opinion by JUDGE SULLIVAN
Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 30, 2025

Michael J. Allen, District Attorney, Jessica Kiel, Deputy District Attorney,
Claire Nutter, Deputy District Attorney, Tanya A. Karimi, Deputy District
Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Deana O’Riley, Deputy State
Public Defender, Colorado Springs, Colorado, for Defendant-Appellee
¶1 The District Attorney for the Fourth Judicial District appeals

the district court’s order imposing sanctions for discovery

violations. We affirm.

I. Background

¶2 In January 2024, the prosecution charged Brandon Michael

Whiteside with seven counts stemming from allegations that, for the

past eight years, he repeatedly sexually assaulted his sixteen-year-

old stepdaughter. In July 2024, Whiteside pleaded not guilty, and a

trial date was scheduled for November 5, 2024.

¶3 Just before trial, defense counsel moved for dismissal of the

case or exclusion of evidence because the prosecution had violated

Crim. P. 16 by failing to timely disclose DNA test results, DNA

expert disclosures, and a DNA litigation packet. Defense counsel

alleged that the prosecutor waited until August 2024 to submit the

DNA evidence for testing, “know[ing] there would be no meaningful

opportunity for the Defense to assess the [DNA] evidence . . . in time

for the currently scheduled jury trial.” Counsel also asserted that

sanctions were appropriate because the prosecutor “has a pattern

and practice of violating Rule 16” based on two prior incidents

where she was found to have violated discovery deadlines. In

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support of her claim, defense counsel provided a transcript from

another case where a different district court judge had found “a

pattern of violations” by the same prosecutor and “a pattern of

failure to disclose consistent with Rule 16 . . . within the confines of

[the] case.”

¶4 After a hearing, the district court found that the prosecution

had violated Crim. P. 16 by failing to timely disclose the DNA test

results, expert disclosures, and litigation packet. Though the court

found that the prosecution had no obligation to submit DNA

evidence for testing by any particular date before trial, the

disclosures to the defense were made beyond the deadlines outlined

in Crim. P. 16. And based on the ongoing pattern of discovery

violations particular to this prosecutor, the court found, sanctions

were appropriate “to deter this conduct.” After weighing the dual

purposes of the discovery rules — protecting the integrity of the

truth-finding process and deterring discovery-related misconduct —

the court dismissed counts six and seven.

II. Discussion

¶5 The prosecution contends that the district court’s findings

were insufficient to support its deterrent sanction because they

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didn’t address the significance of the discovery violations or how

they demonstrated a need for deterrence. We disagree.

A. Standard of Review

¶6 We review a district court’s resolution of discovery issues and

imposition of sanctions for an abuse of discretion. People v. Tippet,

2023 CO 61, ¶ 34. “Because of the multiplicity of considerations

involved and the uniqueness of each case, great deference is owed

to trial courts in this regard . . . .” People v. Lee, 18 P.3d 192, 196

(Colo. 2001). Therefore, we won’t disturb a discovery sanction

unless the sanction is manifestly arbitrary, unreasonable, or unfair,

or based on an erroneous view of the law. Id.; see also Tippet, ¶ 64

(“Under the abuse of discretion standard, a reviewing court doesn’t

ask whether it would have ruled as the trial court did, but instead

considers ‘whether the trial court’s decision fell within a range of

reasonable options.’” (quoting Churchill v. Univ. of Colo. at Boulder,

2012 CO 54, ¶ 74)).

B. Analysis

¶7 Crim. P. 16(I)(a)(1) provides that “[t]he prosecuting attorney

shall make available to the defense . . . material and information

which is within the[ir] possession or control . . . concerning the

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pending case.” This obligation must be performed “as soon as

practicable but not later than 35 days before trial.” Crim. P.

16(I)(b)(3).

¶8 In the event the prosecution fails to comply with the provisions

of Crim. P. 16, the rule permits the court to order sanctions that it

“deems just under the circumstances.” Crim. P. 16(III)(g). When

imposing such sanctions, the court must shape remedies with an

eye toward protecting the integrity of the truth-finding process and

deterring discovery-related misconduct. People v. Whittington, 2024

CO 65, ¶ 19. And the court must consider:

(1) the reason for and degree of culpability
associated with the violation; (2) the extent of
resulting prejudice to the other party; (3) any
events after the violation that mitigate such
prejudice; (4) reasonable and less drastic
alternatives to exclusion; and (5) any other
relevant facts.

Tippett, ¶ 37 (quoting People v. Cobb, 962 P.2d 944, 949 (Colo.

1998)).

¶9 Because the core purpose of the discovery process is to

“advance the search for truth,” People v. Dist. Ct., 793 P.2d 163,

168 (Colo. 1990), sanctions may be either curative or, where “willful

misconduct or a pattern of neglect demonstrat[es] a need for

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modification of a party’s discovery practices,” deterrent or punitive.

Lee, 18 P.3d at 196-97; see Whittington, ¶ 19; Tippet, ¶ 53. When a

district court “imposes a discovery sanction to deter future

misconduct, the goal is to impose a sanction that sufficiently

encourages a ‘modification of a party’s discovery practices.’” Tippet,

¶ 39 (quoting People v. Daley, 97 P.3d 295, 298-99 (Colo. 2004)).

¶ 10 Relying on Whittington, the prosecution asserts that the

district court failed to make specific findings in support of the

deterrent sanction it imposed.

¶ 11 In Whittington, the county court found that the prosecution

had violated Crim. P. 16 by failing to timely disclose certain

evidence in accordance with the rule. Whittington, ¶ 11. However,

despite the court’s findings “that it lacked sufficient evidence to

conclude that the People’s untimely disclosures . . . were part of a

larger pattern of violations” and that the late and missing

disclosures weren’t the result of any “bad intent,” the court

excluded the evidence from the preliminary hearing. Id. at ¶¶ 9-10.

Reversing the court’s order imposing sanctions, our supreme court

concluded that the county court had abused its discretion when it

imposed sanctions that “exceeded what was reasonably appropriate

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to ensure compliance with the discovery rules, without first finding

either willful misconduct or a pattern of discovery violations by the

sanctioned party.” Id. at ¶ 14.

¶ 12 But unlike the county court in Whittington — which

specifically found no willful misconduct and no basis for concluding

that the prosecution exhibited a pattern of discovery violations, id.

at ¶ 22 — the court here did find that the prosecutor had engaged

in a pattern of discovery violations sufficient to warrant a deterrent

sanction. The court specifically referenced findings made by

another district court judge in a prior case. That judge previously

found that the same prosecutor had exhibited “a pattern of failure

to disclose” both “within the confines of [that] case” as well as “in

[that] very jurisdiction.” In reliance on the transcript of the prior

judge’s findings and after taking judicial notice of the prior case’s

court file, the district court determined that a deterrent sanction

was appropriate. The court reasoned that “to allow this just to pass

with no other sanction is . . . inappropriate and the court is basing

that on the fact that there are two other situations identified in that

transcript that had become problematic.” Based on these findings,

we can’t conclude that the court abused its discretion by imposing

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a deterrent sanction. Cf. United States v. Davis, 244 F.3d 666, 671

(8th Cir. 2001) (affirming trial court’s exclusion of DNA evidence

where the government’s untimely disclosure of the evidence “ma[de]

it virtually impossible, absent a continuance, for defendants to

evaluate and confront the evidence against them”).

¶ 13 We aren’t persuaded otherwise by the prosecution’s argument

that the court’s findings were insufficient under Tippet. In Tippet,

the supreme court upheld the imposition of a deterrent sanction —

the reduction of a first degree murder charge to second degree

murder — after the district court found that the district attorney’s

office had engaged in a pattern of neglectful discovery practices.

Tippet, ¶ 47.

¶ 14 The prosecution argues that the pattern of neglect here —

involving three cases — was “woefully short” of that in Tippet, where

the district court examined twenty prior cases involving discovery

violations. But the prosecution doesn’t dispute, and the record

confirms, that the prosecutor violated her discovery obligations in

this case and that the other judge found that she had committed

discovery violations in two other cases. Moreover, to the extent the

prosecution suggests that three cases is insufficient for a “pattern”

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finding, we disagree. As noted by the court in Tippet, “the term

‘pattern’ already has a generally understood meaning” — a “mode of

behavior or series of acts that are recognizably consistent.” Id. at

¶ 50 (citation omitted). Violations in three cases, depending on the

circumstances, could certainly satisfy this definition. Cf. New

Crawford Valley, Ltd. v. Benedict, 877 P.2d 1363, 1371 (Colo. App.

1993) (“pattern of racketeering” under the Colorado Organized

Crime Control Act means “engaging in at least two acts of

racketeering activity which are related to the conduct of the

enterprise”) (citation omitted); see also United States v. Bob

Lawrence Realty, Inc., 474 F.2d 115, 124 (5th Cir. 1973) (three

violations of the Fair Housing Act “were sufficient to establish a

pattern or practice”); Shaw-Reed v. Child.’s Outing Ass’n, 172 F.3d

53 (7th Cir. 1999) (unpublished table decision) (affirming dismissal

of case as a sanction where the trial court found the plaintiff had

violated three discovery orders).

¶ 15 Furthermore, the supreme court in Tippet noted that the sheer

number of discovery violations in that case, “in the face of repeated

admonishments,” wasn’t just a pattern of negligent discovery

practices but “could certainly be considered willful.” Tippet, ¶ 55.

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Thus, that the prosecutor in this case engaged in discovery

violations in three cases, as opposed to twenty, doesn’t undercut

the court’s finding that a deterrent sanction was warranted to

encourage a “modification of [the prosecution’s] discovery

practices.” Daley, 97 P.3d at 298.

¶ 16 We also disagree with the prosecution’s assertion that the

district court’s review of the transcript that the defense provided

was “inaccurate,” and that the court’s findings were “non-existent.”

The prosecution asserts that the court’s findings based on the

transcript were inaccurate because the district court judge in the

prior case “never ruled that [late disclosure of the videos] was a

discovery violation”; rather, the discovery violation related only “to

the late disclosure of the spreadsheet and related documents.” Not

so. The district court judge in the prior case explicitly found that

“there’s been a violation of discovery protocol as it relates to, not

only the Xcel spreadsheet . . . [but also] the 11, two-minute videos.”

¶ 17 As to the prosecution’s argument that the court’s findings

were “non-existent” because it “failed to identify or specify the

second prior finding,” we note that the court explained that it based

its deterrent sanction on “the two prior findings involving [the

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prosecutor] here” as “identified in [the] transcript” provided by

defense counsel. Although the court didn’t expressly recount that

second instance, the prosecution acknowledges that the transcript

reveals that it involved the same prosecutor’s failure to timely

disclose Department of Human Services records to the defense in

yet another case. Nothing in the record suggests that the court

failed to examine the circumstances of this second violation when

fashioning its deterrent sanction. Moreover, that the court didn’t

detail the precise neglectful discovery practices common to each

case doesn’t mean that its findings were insufficient to support the

sanction imposed. Rather, for a deterrent sanction to be upheld, a

court must make “findings explaining the sanction.” Whittington,

¶ 23. Our review of the record confirms that the court did so here.

¶ 18 Specifically, the district court expressly discussed the difficulty

it faced in fashioning a sanction to deter future Crim. P. 16

violations by this prosecutor, while also preserving the truth-

seeking function of discovery. See Tippet, ¶ 54. The court reasoned

that dismissal of the case “would be a drastic remedy” but

wondered whether, on the facts before it, a continuance would be

sufficient. Concluding that a continuance alone wouldn’t “deter

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this conduct,” the court considered what other sanctions were

available that would “influence the evidence in the case to the least

amount possible.” Reasoning that exclusion of the DNA evidence

would go too far by putting the court in the position of “placing its

hands on those scales,” the court settled on dismissal of counts six

and seven.

¶ 19 While dismissal of these two counts wasn’t inconsequential,

we can’t say on the facts presented that the court abused its

discretion by finding that dismissing those counts constituted the

least severe sanction that would ensure full compliance with the

prosecution’s discovery obligations in the future. See id. at ¶ 69.

Like the court in Tippet, the court here had limited options from

which to select an appropriate sanction. See id. at ¶ 65. A

continuance wouldn’t have sufficed because granting a delay where

the prosecution exhibits a pattern of discovery violations “is no

deterrent at all.” Id. And given the nature of the evidence

contained in the delayed discovery — DNA evidence comparing

Whiteside’s DNA to “unknown samples . . . from the alleged victim’s

bed and the trashcan” — exclusion of the evidence would have been

an extreme remedy that wouldn’t have advanced the search for the

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truth. See id. at ¶ 67. Likewise, complete dismissal of the case

wouldn’t have served the truth-seeking purpose of the criminal

justice system. See id. at ¶ 68.

¶ 20 However, based on the facts and circumstances here, the

court’s dismissal of two of the least serious offenses was an

appropriately narrow sanction. Whiteside was charged with five

class 3 felonies (counts one, three, four, six, and seven) and two

sentence enhancers (counts two and five). If proved at trial, the

sentence enhancers would increase Whiteside’s possible sentence

on counts one and four from a mandatory eight to twenty-four years

to life in prison to a mandatory eighteen to thirty-two years to life in

prison. See § 18-1.3-1004(1)(e)(I), (II)(B), C.R.S. 2024. The court

didn’t disturb these counts. The court also kept intact count three

(sexual assault on a child by one in a position of trust — pattern),

which requires a mandatory prison sentence of eight to twenty-four

years to life in prison. See §§ 18-3-405.3(4), 18-1.3-406, 18-1.3-

401(1)(a)(V)(A), 18-1.3-1003(5)(a)(V), 18-1.3-1004(1)(a), C.R.S. 2024.

The counts the court dismissed, in contrast, carry possible

penalties that are either less severe or equal in severity. Dismissed

count six (aggravated incest) carries a nonmandatory sentence of

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four to twelve years to life in prison, or a sentence to probation of

twenty years to life. See §§ 18-6-302(2), 18-1.3-1003(5)(a)(IX), 18-

1.3-1004(1)(a), (2)(a), 18-1.3-401(1)(a)(V)(A), (V)(A.1), (V.5)(A), C.R.S.

2024. And dismissed count seven (sexual assault on a child —

pattern) requires a mandatory prison sentence of eight to twenty-

four years to life. See §§ 18-3-405(2)(d), (3), 18-1.3-406, 18-1.3-

401(1)(a)(V)(A), (V)(A.1), (V.5)(A), 18-1.3-1003(5)(a)(IV), 18-1.3-

1004(1)(a), C.R.S. 2024.

¶ 21 Finally, the prosecution asserts that the district court’s

findings are inadequate to support its deterrent sanction because

they don’t reveal “significant negligence” or “ongoing” violations by

the prosecutor. But evidence of “significant negligence” or

“ongoing” violations isn’t required for the court to impose a

deterrent sanction. Although the supreme court determined that

the violations in Tippet were part of a pattern of ongoing and

significant discovery violations that verged on willful, see Tippet,

¶¶ 45, 55, such facts don’t set the floor for what constitutes a

pattern of neglectful discovery practices. Rather, a court acts

within its discretion when imposing a deterrent or punitive sanction

where, as here, the prosecution’s conduct shows “a pattern of

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neglect demonstrating a need for modification of a party’s discovery

practices.” Lee, 18 P.3d at 196; see also Whittington, ¶ 19. Under

such circumstances, the rules empower the court to ensure that the

prosecution complies with its discovery obligations by “dismissing

individual counts or even all charges against a defendant.” Tippet,

¶ 71; see Lee, 18 P.3d at 196 (“[T]he exclusion of evidence or even

complete dismissal can be proper remedies to assure compliance

with discovery orders.”); see also Whittington, ¶ 63 (Gabriel, J.,

dissenting) (“Absent such authority, parties could violate all manner

of discovery rules without material consequence, as long as they

can marshal a credible argument that their conduct was merely

negligent and not willful.”).

¶ 22 Accordingly, we conclude that the district court didn’t abuse

its discretion by dismissing counts six and seven against Whiteside

as a deterrent discovery sanction.

III. Disposition

¶ 23 We affirm the order.

JUDGE FREYRE and JUDGE SCHOCK concur.

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