People v. William Robert Eason

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 19, 2022

2022COA54

No. 21CA0962, People v. Eason — Criminal Procedure — Trial
Jurors — Challenge to Pool — Mistrial on Ground Fair Jury Pool
Cannot be Assembled Due to Public Health Crisis; Colorado
Constitution — Article III — Separation of Powers

The Colorado Supreme Court adopted Crim. P. 24(c)(4) in 2020

during the COVID-19 pandemic. That rule allows a trial court to

declare a mistrial if the court determines that, due to a public

health crisis or limitations arising therefrom, a fair jury pool cannot

be safely assembled. A division of the court of appeals holds that

the rule does not run afoul of the separation of powers doctrine.
COLORADO COURT OF APPEALS 2022COA54

Court of Appeals No. 21CA0962
Boulder County District Court No. 20CR1109
Honorable Thomas F. Mulvahill, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Robert Eason,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE J. JONES
Gomez, J., concurs
Lipinsky, J., specially concurs

Announced May 19, 2022

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General
II, Denver, Colorado, for Plaintiff-Appellee

Gard Law Firm, L.L.C., Jeffrey S. Gard, Austin Q. Hiatt, Boulder, Colorado, for
Defendant-Appellant
¶1 Defendant, William Robert Eason, appeals the district court’s

judgment of conviction entered on a jury’s verdict finding him guilty

of menacing. He challenges the constitutionality of Crim. P.

24(c)(4), which allows a court, on a party’s motion or on its own, to

declare a mistrial at any time before trial if a fair jury pool can’t

safely be assembled due to a public health crisis or limitations

resulting therefrom. He argues that by adopting this rule, the

Colorado Supreme Court violated the separation of powers doctrine

by intruding on the other government branches’ authority to adopt

or enact emergency laws relating to public health.

¶2 But we hold that the supreme court’s adoption of Rule 24(c)(4)

was a lawful exercise of its authority under Colorado Constitution

article VI, section 21, to promulgate procedural rules governing

criminal cases and that, in any event, the rule doesn’t conflict with

any executive branch order or legislative enactment and therefore

doesn’t violate the separation of powers doctrine. We also reject

Eason’s other challenges to his conviction and therefore affirm.

I. Background

¶3 This case stems from an altercation between Eason and two

teenage siblings, B.G. and P.G. (the victims) in Boulder. Eason

1
confronted B.G. and P.G. because he believed their trailer home was

on an easement on his property. Eason became irate and started

hitting the trailer with a three-foot wooden dowel. Several times he

said he was going to get a gun and kill the victims’ stepfather. B.G.

tried to stop Eason from hitting the trailer and stepped in front of

him, but Eason grabbed him by the neck with one hand and held

him up against the side of the trailer while raising the dowel above

his head. P.G. then intervened. When he pushed the two apart,

Eason fell to the ground. After the altercation, the victims’ mother

called the police to report what had happened. Deputy Kugel spoke

with the victims and their mother that day but wasn’t able to speak

with Eason.

¶4 Two days later, Deputy Williams contacted Eason and asked

him what had happened. Eason admitted to hitting the trailer with

the wooden dowel, but he said that he had to defend himself after

B.G. had confronted him. He denied ever touching B.G. Eason also

said he told the victims he was going to get his gun to protect

himself. Deputy Williams arrested Eason.

¶5 The People charged Eason with second degree assault, third

degree assault, and two counts of misdemeanor menacing. On

2
October 2, 2020, Eason pleaded not guilty and the district court

scheduled Eason’s jury trial for March 1, 2021.

¶6 Before trial, on December 4, 2020, Eason’s counsel filed a

motion to dismiss the case based on the prosecution’s failure to

properly preserve Deputy Kugel’s bodycam recording of his

discussions with the victims and their mother on the day of the

incident. The district court denied the motion and Eason’s

subsequent motion to reconsider.

¶7 The day Eason’s trial was set to begin, the district court, sua

sponte, declared a mistrial under Rule 24(c)(4) due to COVID-19

restrictions and reset the trial for June 7, 2021. Eason’s counsel

filed an objection to the court’s mistrial order and moved to dismiss

the case because Eason had been ready for trial on March 1.

Counsel argued that, by implementing Rule 24(c)(4), the Colorado

Supreme Court “usurped the power of the legislature and the

executive branches of government,” that Rule 24(c)(4) didn’t apply

in any event because a fair jury pool could have been assembled,

and that the court could not declare a mistrial because limiting the

3
number of courtrooms for trials was something within the court’s

control. The district court denied Eason’s objection and motion.1

¶8 On April 5, 2021, Eason’s counsel renewed his motion to

dismiss, arguing that the speedy trial deadline had passed on April

2. The district court denied that motion as well and later

rescheduled the trial for June 9, 2021.

¶9 On the second day of trial, after learning on the first day of

trial that the victims had given written statements to the police,

which the prosecution hadn’t provided to the defense, Eason’s

counsel renewed his motion to dismiss, claiming a Crim. P. 16

violation. The prosecutor agreed that there had been a Rule 16

violation. As a sanction, the district court dismissed the menacing

charge relating to P.G. But the court declined to dismiss the

menacing charge relating to B.G. or the assault charges as a

discovery sanction.

1 Eason’s counsel objected to the court’s prioritization of cases,
arguing that there was no need to limit trials to one per week in a
single courtroom. As discussed below, it was the combination of
the one trial in one courtroom per week limitation and the
prioritization of cases that resulted in Eason’s trial being reset.

4
¶ 10 A jury found Eason guilty of menacing but not guilty of

assault.

II. Discussion

¶ 11 Eason contends that the district court erred by (1) declaring a

mistrial and refusing to dismiss the case on speedy trial grounds

because (a) Rule 24(c)(4) violates the separation of powers doctrine

and is therefore unconstitutional and (b) the court didn’t make

sufficient findings justifying a mistrial and a mistrial wasn’t

justified under Rule 24(c)(4) because the trial could have been

conducted safely on March 1, 2021; and (2) denying his motions to

dismiss despite the prosecution’s multiple discovery violations.2 We

address and reject each of these contentions in turn.

A. Constitutionality of Rule 24(c)(4)

¶ 12 On April 7, 2020, the Colorado Supreme Court amended Rule

24 by adding subsection (c)(4). Rule Change 2020(07), Colorado

Rules of Criminal Procedure (Amended and Adopted by the Court

2Eason also argued in his opening brief that the Rule 24(c)(4)
continuance pushed the case beyond the speedy trial deadline of
section 18-1-405(6)(e), C.R.S. 2021. However, he withdrew this
argument based on the supreme court’s intervening decision in
People v. Sherwood, 2021 CO 61.

5
En Banc, Apr. 7, 2020), https://perma.cc/6DET-KNTH. With

amendments the court adopted on July 22, 2020, Rule 24(c)(4)

provides as follows:

At any time before trial, upon motion by a
party or on its own motion, the court may
declare a mistrial in a case on the ground that
a fair jury pool cannot be safely assembled in
that particular case due to a public health
crisis or limitations brought about by such
crisis. A declaration of a mistrial under this
paragraph must be supported by specific
findings.

Rule Change 2020(24), Colorado Rules of Criminal Procedure

(Amended and Adopted by the Court En Banc, July 22, 2020),

https://perma.cc/CET7-Z88V.

¶ 13 Before turning to the merits of Eason’s contention that this

rule is unconstitutional, we must address the People’s argument

that we can’t opine on the constitutionality of Rule 24(c)(4) because

only the supreme court “can overrule [its] precedents concerning

matters of state law.” We reject the People’s argument because its

premise is incorrect: the rule isn’t a “precedent” as contemplated by

the cases on which the People rely. Those cases all deal with

supreme court case law. See People v. Novotny, 2014 CO 18, ¶ 26

(“we alone can overrule our prior precedents concerning matters of

6
state law”; discussing a line of Colorado Supreme Court case law);

People v. Denhartog, 2019 COA 23, ¶ 78 (“[I]f a precedent of the

supreme court ‘has direct application in a case, yet appears to rest

on reasons rejected in some other line of decisions,’ the court of

appeals should follow the case which directly controls . . . .”

(quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484 (1989))) (emphasis added).

¶ 14 Other divisions of this court have held that, based largely on

the expansive statutory grant of jurisdiction in section 13-4-102,

C.R.S. 2021, the court of appeals may determine the

constitutionality of a procedural rule adopted by the supreme court.

See People v. Montoya, 251 P.3d 35, 46 (Colo. App. 2010), overruled

on other grounds by People v. Walker, 2014 CO 6; People in Interest

of T.D., 140 P.3d 205, 210-12 (Colo. App. 2006), abrogated on other

grounds by People in Interest of A.J.L., 243 P.3d 244 (Colo. 2010);

see also Duff v. Lee, 439 P.3d 1199, 1205 (Ariz. Ct. App. 2019)

(noting that the Arizona Supreme Court’s adoption of a rule doesn’t

constitute a determination that it is valid and constitutional against

any challenge and affirming the Arizona Court of Appeals’ power to

determine the constitutionality of such a rule), aff’d in part, vacated

7
in part on other grounds, 476 P.3d 315 (Ariz. 2020). We agree with

those divisions.

¶ 15 Turning to the merits of Eason’s constitutional challenge to

Rule 24(c)(4), we conclude that the rule doesn’t violate the

separation of powers doctrine.

1. Standard of Review

¶ 16 Whether a rule adopted by the supreme court is constitutional

is a question of law that we review de novo. See People v.

Pennington, 2021 COA 9, ¶ 25 (we review a separation of powers

challenge de novo); People v. Reyes, 2016 COA 98, ¶ 23 (same).

2. Applicable Law and Analysis

¶ 17 Article III of the Colorado Constitution says that

[t]he powers of the government of this state are
divided into three distinct departments, — the
legislative, executive and judicial; and no
person or collection of persons charged with
the exercise of powers properly belonging to
one of these departments shall exercise any
power properly belonging to either of the
others, except as in this constitution expressly
directed or permitted.

Put a bit more simply, “the legislative, executive, and judicial

branches of government may exercise only their own powers and

8
may not usurp the powers of another co-equal branch of

government.” Vagneur v. City of Aspen, 2013 CO 13, ¶ 34.

¶ 18 The state’s legislative power is vested in the General Assembly,

subject to the people’s right to propose laws and amendments to the

constitution, to enact or reject laws and amendments by vote, and

to approve or reject “any act or item, section, or part of any act of

the general assembly” by vote. Colo. Const. art. V, § 1(1).

¶ 19 It is the executive department’s — or more specifically, the

governor’s — responsibility to “take care that the laws [are]

faithfully executed.” Colo. Const. art. IV, § 2.

¶ 20 The state’s judicial power is vested in the courts. Colo. Const.

art. VI, § 1. One such power is the supreme court’s power to make

rules:

The supreme court shall make and promulgate
rules governing the administration of all courts
and shall make and promulgate rules governing
practice and procedure in civil and criminal
cases, except that the general assembly shall
have the power to provide simplified
procedures in county courts for the trial of
misdemeanors.

Colo. Const. art. VI, § 21 (emphasis added). The General Assembly

itself has recognized the supreme court’s authority to adopt such

9
rules. See § 13-2-109(1), C.R.S. 2021 (“The supreme court has the

power to prescribe, from time to time, rules of pleading, practice,

and procedure with respect to all proceedings in all criminal cases in

all courts of the state of Colorado.”) (emphasis added); see also

Frasco v. People, 165 P.3d 701, 707 (Colo. 2007) (Martinez, J.,

specially concurring) (“We have the power to issue rules of criminal

procedure that can control what juries in criminal cases may take

into the deliberation room.” (citing section 13-2-109)).

¶ 21 So if Rule 24(c)(4) is a rule “governing practice and procedure”

— that is, a procedural rule — it doesn’t run afoul of separation of

powers. We conclude that Rule 24(c)(4) is a procedural rule.

Alternatively, even if there is some aspect of public policy

underlying the rule, it doesn’t conflict with any legislative (or

executive) expression of public policy and is therefore lawful.

¶ 22 “[R]ules adopted to permit the courts to function and function

efficiently are procedural whereas matters of public policy are

substantive and are therefore appropriate subjects for legislation.”

People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993) (holding that

section 16-5-402, C.R.S. 2021, which establishes time limits for

seeking postconviction relief under Crim. P. 35(c), is substantive

10
and therefore not a violation of separation of powers); accord Borer

v. Lewis, 91 P.3d 375, 380 (Colo. 2004) (section 13-25-127, C.R.S.

2021, which sets forth the burden of proof in civil cases, is

substantive and therefore not a violation of separation of powers);

People v. Bondurant, 2012 COA 50, ¶ 17. This distinction isn’t

always clear. “[B]ut ‘legislative policy and judicial rule making

powers may overlap to some extent so long as there is no

substantial conflict between statute and rule.’” Borer, 91 P.3d at

380 (quoting People v. McKenna, 196 Colo. 367, 373, 585 P.2d 275,

279 (1978)); accord Wiedemer, 852 P.2d at 436.

¶ 23 Rule 24(c)(4) clearly relates to docket management, jury pool

assembly, and trial practice — matters procedural in nature. It

doesn’t declare a public health crisis. Rather, the supreme court

adopted the rule in response to such declarations by the executive

branch.3 It did so to address effects of the public health crisis on

procedural aspects of the judicial process. Rule 24(c)(4) is intended

3 Other state courts implemented similar rules or orders in
response to the effects of COVID-19. E.g., Commonwealth v.
Lougee, 147 N.E.3d 464, 468-69 (Mass. 2020) (discussing such
emergency orders in Massachusetts).

11
to mitigate the effect of the public health crisis on criminal trials by,

for example, reducing the possibility that such trials will need to be

stopped as a result of a juror or jurors becoming ill.

¶ 24 In any event, even if we were to conclude that the rule touches

on aspects of public policy — for example, a desire to protect

prospective jurors, court personnel, parties, attorneys, and others

— this overlap wouldn’t establish a separation of powers violation.

This is so because Eason hasn’t shown that the rule conflicts with

any legislative enactment or executive branch public health order.

¶ 25 Contrary to Eason’s assertion, the mere fact the General

Assembly and the executive branch may adopt public health edicts

doesn’t establish the existence of a conflict. He attempts to show

an actual conflict only by asserting that the rule somehow “changes

. . . the speedy trial statutes or emergency public health orders”4

4On March 22, 2020, the executive branch issued Colorado
Executive Order No. D 2020 013, https://perma.cc/RV3P-HTN9,
pursuant to Colorado Constitution article IV, section 2, and the
Colorado Disaster Emergency Act, sections 24-33.5-701 to -717,
C.R.S. 2021, ordering

Colorado employers to reduce their in-person
work forces by fifty percent, and order[ing] the
Executive Director of the Colorado Department

12
and that the rule somehow intrudes on “the responsibilities placed

on the jury commissioners and the state court administrator” under

section 13-71-110, C.R.S. 2021. But he doesn’t describe any actual

conflict between the rule and any executive order or statute, and we

don’t see any.5

¶ 26 Thus, we conclude that Rule 24(c)(4) doesn’t run afoul of the

separation of powers doctrine.

of Public Health and Environment (CDPHE) to
issue a public health order defining critical
emergency personnel, infrastructure,
government functions, and other activities that
are exempt from the directives in this
Executive Order.
5 In his reply brief, Eason asserts a conflict with section 18-1-
301(2), C.R.S. 2021, which addresses “[t]ermination” of trials. But
that statute doesn’t purport to contain an exclusive list of reasons
for which a trial may properly be terminated. See Paul v. People,
105 P.3d 628, 633 (Colo. 2005); People v. Berreth, 13 P.3d 1214,
1217 (Colo. 2000) (reasons for a mistrial listed in section 18-1-
301(2)(b) aren’t exclusive). And section 18-1-405(6)(e) provides that
the period of delay resulting from a mistrial, not to exceed three
months, doesn’t count against the speedy trial deadline, and it
doesn’t indicate any limits on a court’s reasons for declaring a
mistrial.

13
B. Declaration of a Mistrial

¶ 27 Eason contends that the district court erred by declaring a

mistrial because it didn’t make specific findings as required under

Rule 24(c)(4) and because the court’s reasons for the mistrial were

matters within the court’s control. Again, we disagree.

1. Additional Background

¶ 28 On March 1, 2021, the first day of trial, Eason and his

attorney appeared in court ready for trial. But the district court

didn’t start Eason’s trial that morning; instead, it declared a

mistrial under Rule 24(c)(4). The court explained that “because of

the circumstances created by the pandemic and the health

restrictions, particularly with respect to social distancing, this

district is only able to select one jury at a time.” It also noted that

another case, which was ready for trial, had priority on the docket.

The court later issued a written order supplementing its findings as

follows:

 The Governor had declared a disaster emergency because

of the COVID-19 pandemic and the executive branch had

issued health orders encouraging the public to stay at

14
home to reduce the spread of the highly contagious and

potentially deadly virus.

 COVID-19 spreads less easily when interactions between

people are limited and distance between people is

increased. (The court described various social distancing

measures that were then in place.)

 Even though Colorado courts had, to some extent, re-

opened and resumed trials in person, courthouse

capacity was limited so as to comply with the physical

distancing requirements of public health orders.

 Boulder County’s public safety mandate required six feet

of spacing between people in the courthouse.

 These requirements “severely” limited the courthouse’s

overall occupant capacity. And the juror rooms and

other spaces designated for juror use weren’t “large

enough to safely accommodate a socially distanced jury

during trial breaks and deliberations.”

 The other trials that were proceeding involved more

serious offenses and highly sensitive evidence,

15
necessitating more prospective and selected jurors and

resulting in longer trials.

 Because the potential jury pool included many older

adults and persons with underlying health risks, the

court considered “any disproportionate risk of serious

infection[s]” that would likely increase the need for a

potential juror to “postpone jury service, be excused for

hardship, and/or fail to appear for jury duty.” Those

risks directly impacted the jury pool and the ability to

assemble a fair representation of the community.

2. Standard of Review and Applicable Law

¶ 29 We review a district court’s decision to declare a mistrial for an

abuse of discretion. People v. Jackson, 2018 COA 79, ¶ 19, aff’d,

2020 CO 75. A court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair, or based on a

misunderstanding or misapplication of the law. People v. Knapp,

2020 COA 107, ¶ 31.

¶ 30 A district court is justified in declaring a mistrial when present

circumstances amount to “manifest necessity” or when “the ends of

public justice would not be served by a continuation of the

16
proceedings.” People v. Segovia, 196 P.3d 1126, 1133 (Colo. 2008)

(quoting United States v. Jorn, 400 U.S. 470, 485 (1971)); Jackson,

¶ 21.

¶ 31 As noted, Rule 24(c)(4) permits a trial court, by a party’s

motion or on its own, to declare a mistrial at any time before trial

“on the ground that a fair jury pool cannot be safely assembled in

that particular case due to a public health crisis or limitations

brought about by such crisis.” “[D]eclar[ing] . . . a mistrial under

this [rule] must be supported by specific findings.” Crim. P.

24(c)(4).

3. Analysis

¶ 32 Eason argues first that the district court erred by failing to

make specific findings of fact supporting its decision to declare the

mistrial under Rule 24(c)(4). We aren’t persuaded.

¶ 33 The court made numerous specific findings in declaring the

mistrial, as summarized above. Eason’s contention that these

findings didn’t concern his particular case is simply wrong. They

concerned his case and others. He doesn’t explain why the

limitations imposed by the COVID-19 pandemic and the various

public safety orders wouldn’t apply to his case, and we can’t see

17
any reason why they wouldn’t. Cf. People v. Sherwood, 2021 CO

61, ¶¶ 33-34 (the district court properly continued trial after it

declared a mistrial because it couldn’t safely assemble a fair jury

pool due to COVID-19 in the first place).

¶ 34 Eason also contends that the district court’s decision to limit

the courthouse to one jury trial per week shows that the

circumstances giving rise to the mistrial weren’t outside the court’s

control. He is mistaken. The mistrial wasn’t declared because of

“docket congestion,” as Eason argues, but because of the pandemic

and related public health orders, which imposed limitations on the

use of the courthouse — matters obviously beyond the court’s

control. See People v. Lucy, 2020 CO 68, ¶ 1 (“COVID-19, the

highly contagious and potentially deadly illness,” has caused trial

courts to struggle “with effectuating a defendant’s statutory right to

speedy trial amid this unparalleled public health crisis.”).6

6 Eason’s counsel asserts that the Boulder courts had been
conducting multiple trials at the same time shortly before the
mistrial order in this case. There is no actual record evidence that
this was so. But, in any event, the court’s order reflects a
thoughtful consideration of the then-current health orders and the
Boulder courts’ practical ability to comply with those orders under
present circumstances. To the extent there was some reevaluation

18
¶ 35 In sum, we see no abuse of discretion.

C. Discovery Violations

¶ 36 Lastly, Eason contends that the district court erred by denying

his motions to dismiss based on the prosecution’s discovery

violations — the destruction of Deputy Kugel’s bodycam recording

and the late disclosure of two written witness statements. He

argues that the discovery violations denied him his right to due

process and that the only appropriate remedy was dismissal. We

conclude, however, that the district court didn’t abuse its discretion

by refusing to dismiss the entire case.

1. Applicable Law and Standard of Review

¶ 37 To establish a due process violation based on the state’s

failure to preserve potentially exculpatory evidence, the defendant

“must prove that the evidence was suppressed or destroyed by state

action and that the evidence was material.” People v. Braunthal, 31

P.3d 167, 172 (Colo. 2001); accord People v. Greathouse, 742 P.2d

of the appropriateness of conducting multiple trials at the same
time, it isn’t for us to say that such revaluation was improper. We
take notice that the pandemic presented a need to constantly
reexamine the measures necessary to respond to it.

19
334, 337-38 (Colo. 1987). More specifically, the defendant

ordinarily must show that (1) the state suppressed or destroyed the

evidence; (2) the evidence had an exculpatory value that was

apparent before it was destroyed; and (3) he was unable to obtain

comparable evidence by other reasonably available means.

Braunthal, 31 P.3d at 173; People v. Enriquez, 763 P.2d 1033, 1036

(Colo. 1988); see California v. Trombetta, 467 U.S. 479, 489 (1984).

¶ 38 If, however, the evidence in question wasn’t apparently

exculpatory, but only potentially useful, a defendant alternatively

establishes a due process violation if he shows that the state

suppressed or destroyed the evidence in bad faith. See Arizona v.

Youngblood, 488 U.S. 51, 57-58 (1988); People v. Wyman, 788 P.2d

1278, 1279 (Colo. 1990); People v. Young, 2014 COA 169, ¶ 74.

¶ 39 If we determine that a due process violation occurred, then we

must decide whether the district court “fashioned an appropriate

remedy, [while] recognizing that the trial court has broad discretion

in this regard.” Enriquez, 763 P.2d at 1036. In determining the

appropriate remedy for the state’s destruction of evidence

amounting to a due process violation, a court should consider the

state’s degree of culpability, the need to preserve the integrity of the

20
truth-finding process, and the need for deterrence of the conduct at

issue. See People v. Collins, 730 P.2d 293, 298 (Colo. 1986). In

determining the appropriate remedy for the state’s delay in

producing evidence, a court should consider (1) the reason for the

delay in providing the requisite discovery; (2) any prejudice a party

has suffered as a result of the delay; and (3) the feasibility of curing

such prejudice by way of a continuance or recess in situations

where the jury has been sworn and the trial has begun. People v.

Lee, 18 P.3d 192, 196 (Colo. 2001). As a general matter, in the

event of a discovery violation by the People, dismissal is

inappropriate if any prejudice can be cured by a lesser sanction. Id.

at 197.

¶ 40 We review de novo to determine whether the state violated a

defendant’s due process rights. People v. Burlingame, 2019 COA

17, ¶ 11. But we review whether the district court fashioned an

appropriate remedy for an abuse of discretion. See People v.

Holloway, 649 P.2d 318, 320 (Colo. 1982) (a district court has

broad discretion in fashioning a proper remedy to protect the

defendant’s rights based on the loss or destruction of evidence).

21
2. Destruction of Bodycam Video

¶ 41 Eason argues that the State violated his right to due process

by destroying potentially exculpatory evidence — Deputy Kugel’s

bodycam recording of his discussions with the victims and their

mother — which denied him his only means to meaningfully

impeach the credibility of key witnesses. We aren’t persuaded.

a. Additional Background

¶ 42 Before trial, Eason’s attorney filed a motion for further

discovery, requesting that the court order the prosecution to

disclose “all written statements and all audio or video recordings

made of [Eason], any witness, or police officer in connection with

this case.” The district court granted Eason’s discovery motion and

ordered the prosecution to comply with his request.

¶ 43 The prosecution produced several bodycam recordings but

said that its lead investigator hadn’t received Deputy Kugel’s

bodycam recording from the Boulder County Sheriff’s Department.

Eason’s attorney then followed up with the Sheriff’s Department to

get a copy. The prosecution then told Eason’s attorney that the

Sheriff’s Department couldn’t produce the bodycam recording

22
because it had been inadvertently and automatically deleted from

the department’s digital files.

¶ 44 Eason’s attorney filed a motion to dismiss the case, arguing

that the State’s failure to preserve the deputy’s bodycam recording

violated Eason’s due process rights. Eason’s counsel also argued

that the Sheriff’s Department had prematurely deleted the deputy’s

bodycam recording in bad faith by failing to preserve evidence for

three years in violation of its own document retention policy.

¶ 45 The prosecution responded that Eason hadn’t met the

requirement of showing the apparent exculpatory value of the

deputy’s bodycam recording before its destruction. The prosecution

challenged Eason’s attorney’s argument that the video was

necessary to impeach the credibility of key witnesses as speculative

and said that it had provided counsel with other evidence sufficient

to question the witnesses’ credibility. As for Eason’s counsel’s bad

faith argument, the prosecution countered that it had produced

numerous other bodycam recordings of the investigation and other

witness statements, and that the Sheriff’s Department had only

negligently failed to preserve the one recording.

23
¶ 46 The district court denied Eason’s motion to dismiss for the

reasons given in the prosecution’s response to the motion.

b. Analysis

¶ 47 There is no dispute that the State inadvertently destroyed the

deputy’s bodycam recording, thus establishing the first element of a

due process violation. Eason contends that the recording had

apparent exculpatory value and that it was his only reasonably

available means of testing the victims’ credibility. If we conclude,

however, that the recording didn’t have apparent exculpatory value

when it was destroyed, he contends in the alternative that his right

to due process was violated because the State destroyed it in bad

faith.7

¶ 48 We first conclude that Eason failed to establish that the

bodycam recording had apparent exculpatory value before the

7 Courts in other jurisdictions have concluded that, unless a
defendant establishes that a recording of an interview with a victim
had apparent exculpatory value when it was destroyed, there is no
due process violation unless the defendant establishes that the
recording was potentially useful and that the recording was
destroyed in bad faith. E.g., State v. Cote, 2015 ME 78, ¶¶ 6-20,
118 A.3d 805, 808-11; Garcia v. State, 592 S.W.3d 590, 600-01
(Tex. App. 2019). Eason appears to accept this view.

24
Sheriff’s Department destroyed it. “[E]xculpatory evidence includes

evidence which bears on the credibility of a witness the prosecution

intends to call at a trial.” Braunthal, 31 P.3d at 174-75; see also

United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment

evidence, . . . as well as exculpatory evidence, falls within the Brady

rule.”). Eason’s assertion that the recording had apparent

exculpatory value consistent with this definition is conclusory and

speculative. See People v. Daley, 97 P.3d 295, 299 (Colo. App.

2004) (destruction of clothing didn’t warrant sanctions tantamount

to dismissal; even though the trial court found that if the clothing

had been available, it might have exonerated the defendant, “the

mere possibility that testing might lead to exculpatory evidence

does not support dismissal of the charges”); People in Interest of

J.M.N., 39 P.3d 1261, 1264-65 (Colo. App. 2001) (the defendant

failed to establish that a sample taken from a horse’s back had

apparent exculpatory value when it was destroyed); People v.

Erickson, 883 P.2d 511, 515 (Colo. App. 1994) (officer’s notes of

conversation with the defendant, which were apparently destroyed

after the officer prepared his written report, didn’t have apparent

exculpatory value when they were destroyed); People v. Silva, 782

25
P.2d 846, 848 (Colo. App. 1989) (the defendant’s assertion that the

destroyed evidence had exculpatory impeachment value was

speculative).

¶ 49 And, Eason’s argument that the deputy’s bodycam recording

was the only evidence available to effectively cross-examine key

witnesses is belied by the record. The prosecution produced the

deputy’s written statement documenting his investigation, other

witnesses’ statements, and nine additional bodycam recordings.

¶ 50 Eason’s reliance on Holloway, 649 P.2d 318, is misplaced. In

that case, police officers inadvertently erased dispatch recordings of

an officer’s radio broadcast providing the description of a burglar

who the prosecution alleged was the defendant. Id. at 319. The

tapes were crucial to the defendant’s claim of misidentification

given the discrepancies between the officers’ recollection of the

burglar’s description at trial and the citizen complaint to police

allegedly describing the burglar as a Caucasian male. Id. at 320.

The defendant established that the dispatch recordings had

exculpatory value before their destruction because of “the

reasonable possibility that the evidence could have been of

assistance to the defense.” Id. (quoting People v. Morgan, 199 Colo.

26
237, 241, 606 P.2d 1296, 1299 (1980)). But the record in this case

is devoid of any comparable facts.

¶ 51 We also reject Eason’s alternative contention that the district

court erred by finding that the Sheriff’s Department didn’t act in

bad faith when it destroyed the bodycam recording. The

prosecution provided the court with communications showing that

the recording had been destroyed due to negligence: it had been

mislabeled (and therefore automatically destroyed) or there had

been “a download/upload” error. The prosecution noted that this

recording was the only one of ten bodycam recordings relating to

the case that had been destroyed, and that it had produced the

other nine to defense counsel. The district court accepted this

explanation.

¶ 52 Eason hasn’t persuaded us that the district court abused its

discretion by doing so. He doesn’t contest the prosecution’s stated

reasons why the recording was destroyed. He claims only that the

destruction of the video resulted from the Sheriff’s Department’s

failure to follow its retention policy. But evidence supports the

court’s conclusion that this failure was inadvertent, not willful.

27
¶ 53 Pointing to two other instances of destruction of bodycam

recordings, Eason also argues that the State’s “chronic failure” to

preserve such evidence shows bad faith. But those two other cases

were traffic cases for which the Sheriff’s Department’s policy

required retention for 180 days after creation of the recording and

automatic destruction thereafter. According to the evidence Eason

submitted with his motion to dismiss, the Sheriff’s Department

complied with that policy in both cases: the prosecution failed to

timely request the recordings or inform the department of any

discovery request for the recordings before the retention period

expired.8

¶ 54 In this case, in contrast, the Sheriff’s Department didn’t

comply with its policy to retain the recording for three years (the

period applicable to criminal cases such as this one). Thus, the

three failures at issue involve two qualitatively different failures by

two different entities. We don’t mean to suggest that these

incidents are — singularly or collectively — trivial. They aren’t. But

8Eason’s counsel relied on this explanation below and doesn’t
contest it on appeal.

28
Eason hasn’t shown that the district court erroneously concluded

that those incidents don’t show bad faith.9

3. Victims’ Written Statements

¶ 55 We also aren’t persuaded by Eason’s contention that dismissal

of the entire case was the only appropriate remedy for the

prosecution’s late disclosure of the victims’ written statements.

a. Additional Background

¶ 56 On the first day of trial, P.G. testified that he had given Deputy

Kugel a written statement about his confrontation with Eason. The

district court ordered the prosecutor to confirm whether witnesses’

written statements existed and, if so, to make them available to

Eason’s attorney and the court. On the second day of trial, the

prosecutor (1) said Deputy Kugel told him both victims had

provided written statements; (2) obtained those statements; and (3)

gave the statements to Eason’s attorney and the court. The

prosecutor conceded a Rule 16 violation.

9We also observe that while the district court could have imposed
some lesser sanction for the destruction of the video, Eason’s
counsel didn’t ask for one.

29
¶ 57 Eason’s counsel moved to dismiss the case based on this and

the prosecution’s previous discovery violation (the destruction of the

deputy’s bodycam recording). As to the written statements, Eason’s

counsel argued that they were potentially exculpatory as to the

menacing charges against Eason — whether he actually threatened

to get his gun and return to shoot the victims. The prosecutor

countered that the written statements were inculpatory because

they corroborated the victims’ testimony about Eason’s threat to get

his gun.

¶ 58 After considering the evidence and the circumstances

surrounding the delayed disclosure, the district court dismissed the

menacing charge relating to P.G. as a sanction because that charge

alleged the threatened use of a gun. But the court declined to

dismiss the menacing count relating to B.G. because that count

charged a threat by use of the dowel, not a gun. As for the assault

charges, the court found that the minor inconsistencies between

the written statements and the victims’ testimony didn’t

significantly impact Eason’s ability to defend against those

30
charges.10 The court offered to instruct the jury that the Sheriff’s

Department and the prosecution had violated their duty to timely

disclose the witness statements, the witness statements wouldn’t be

admitted into evidence, and the jury could not infer that those

statements would be helpful to the prosecution. (The limited

portion of the trial transcript that is part of the record on appeal

doesn’t show whether defense counsel took the court up on its

offer.)

b. Analysis

¶ 59 While we agree with Eason that, as a general proposition,

evidence bearing on a witness’s credibility qualifies as potentially

exculpatory evidence, we can’t determine whether the victims’

written statements were potentially exculpatory, nor can we

meaningfully evaluate the district court’s ruling, because Eason

hasn’t provided us with transcripts of any of the trial testimony. In

these circumstances, we must presume that the district court’s

choice of sanction was appropriate. See People v. Sosa, 2019 COA

182, ¶ 40; People v. Duran, 2015 COA 141, ¶ 12 (“If an appellant

10 As noted above, the jury acquitted Eason of assault.

31
intends to urge on appeal that a finding or conclusion is

unsupported by or contrary to the evidence, the appellant must

include in the record a transcript of all evidence relevant to such

finding or conclusion.”).

¶ 60 Therefore, we conclude that the district court didn’t abuse its

discretion.

III. Conclusion

¶ 61 The judgment is affirmed.

JUDGE GOMEZ concurs.

JUDGE LIPINSKY specially concurs.

32
JUDGE LIPINSKY, specially concurring.

¶ 62 While I agree with the majority’s analysis, I write separately to

make clear that today’s decision does not mean a law enforcement

agency’s repeated, systematic destruction of evidence can never

violate a defendant’s due process rights.

¶ 63 A law enforcement officer’s destruction of the recorded

statements of a defendant’s accusers can directly affect the outcome

of the defendant’s trial, particularly where, as here, the

prosecution’s case rests on those witnesses’ credibility. But a

defendant’s due process rights are not violated every time a law

enforcement officer destroys evidence — a defendant’s conviction or

acquittal can hinge on whether the evidence was lost because the

officer destroyed it in bad faith or through inadvertence.

¶ 64 The majority accurately recites the test for determining when a

law enforcement agency’s failure to preserve exculpatory evidence

results in a due process violation: “the defendant must establish

that (1) the evidence was destroyed by state action; (2) the evidence

possessed an exculpatory value that was apparent before it was

destroyed; and (3) the defendant was unable to obtain comparable

evidence by other reasonably available means.” People v. Braunthal,

33
31 P.3d 167, 173 (Colo. 2001). “[E]xculpatory evidence includes

evidence which bears on the credibility of a witness the prosecution

intends to call at trial.” Id. at 174.

¶ 65 A due process violation occurs if the agency destroyed the

evidence in bad faith; in contrast, the “‘[n]egligent destruction’ of

evidence cannot constitute a due process violation.” People v.

Young, 2014 COA 169, ¶ 69, 412 P.3d 676, 685 (citation omitted).

And due process is not violated if the agency inadvertently

destroyed the evidence and the defendant can only establish that

the evidence was potentially exculpatory. See People v. Abdu, 215

P.3d 1265, 1270 (Colo. App. 2009) (“Because defendant claims only

that the videotape was potentially useful, and cannot show it had

apparent exculpatory value when it was destroyed, he must show

bad faith in order to establish a federal or state due process

violation.”).

¶ 66 “[A] claim that the evidence was only ‘potentially useful’ cannot

prove that the evidence had ‘apparent exculpatory value’ when it

was destroyed” and, thus, that the destruction violated the

defendant’s due process rights. Young, 412 P.3d at 685 (citation

omitted); cf. People v. Holloway, 649 P.2d 318, 320 (Colo. 1982)

34
(holding that the defendant’s due process rights were violated when

the prosecution destroyed police dispatch tapes that were “not

merely incidental” to the defense theory of misidentification (quoting

People v. Morgan, 199 Colo. 237, 241, 606 P.2d 1296, 1299 (1980))).

In contrast, “[i]t is a violation of the defendant’s due process rights

when the state fails in bad faith to preserve evidence that might

have exonerated him or her.” People v. Scarlett, 985 P.2d 36, 39

(Colo. App. 1998).

¶ 67 These principles echo the United States Supreme Court’s

pronouncement in Arizona v. Youngblood that, “unless a criminal

defendant can show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute a denial of

due process of law.” 488 U.S. 51, 58 (1988). The Supreme Court

suggested that an agency’s destruction of evidence does not

constitute bad faith in the absence of “official animus towards

respondents or of a conscious effort to suppress exculpatory

evidence.” California v. Trombetta, 467 U.S. 479, 488 (1984).

¶ 68 The Colorado Supreme Court, “while once having adopted a

broader test, has since ‘expressly declined to find a broader

protection in the state constitution’ than that provided federally by

35
Youngblood.” Abdu, 215 P.3d at 1270 (quoting People v.

Wartena, 156 P.3d 469, 475 (Colo. 2007)). We are bound by our

supreme court’s decisions, People v. Tarr, 2022 COA 23, ¶ 33, ___

P.3d ___, ___, and, thus, must follow Youngblood.

¶ 69 The Colorado cases, however, have not considered whether a

law enforcement agency’s repeated inadvertent destruction of

evidence, in violation of its own retention policy, can rise to the level

of bad faith. Notably, here, the People do not challenge Eason’s

assertion that the Department deleted recordings of body camera

videos in two other cases close in time to the destruction of the

body camera recording at issue here.

¶ 70 Multiple violations of a preservation policy within a brief period

suggest a culture in which officers face no consequences for

noncompliance with the policy. This type of pattern and practice

can be indicative of a law enforcement agency that condones the

destruction of evidence it has a duty to preserve. Courts in other

jurisdictions have held that the willful failure to comply with a law

enforcement policy can rise to the level of bad faith. See, e.g., White

v. McKinley, No. 05-0203-CV-W-NKL, 2009 WL 813001, at *10

(W.D. Mo. Mar. 26, 2009) (unpublished opinion) (holding that a

36
police detective who consistently violated accepted practices and

policy acted in bad faith), aff’d, 605 F.3d 525 (8th Cir. 2010).

¶ 71 Even if a law enforcement agency’s tolerance of multiple

violations of its document retention policy does not constitute bad

faith, however, I would hold that the repeated destruction of

potentially exculpatory evidence as a consequence of this type of

careless approach to document retention violates a defendant’s due

process rights. Defendants have no control over the preservation of

evidence in the hands of governmental agents. Thus, it should not

matter whether evidence was lost because an officer purposefully

destroyed it, or whether the evidence was lost because the law

enforcement agency conveyed the message to its personnel that

they could take a cavalier approach to retention of evidence. In

these scenarios, either willful action or willful inaction resulted in

the loss of the evidence. This approach would be consistent with

the Supreme Court’s holding that a “conscious effort to suppress

exculpatory evidence” can be deemed bad faith. See Trombetta, 467

U.S. at 488. A culture in which officers routinely disregard their

agency’s retention policy may reflect a “conscious effort to suppress

exculpatory evidence.”

37
¶ 72 A law enforcement agency’s repeated violation of its document

retention policy can have significant consequences for a defendant’s

due process rights. This is particularly true when the lost evidence

was as potentially critical to the defense as the only recordings of

witness statements obtained immediately following the alleged

offense. Treating lax enforcement of document retention policies as

the equivalent of the bad faith destruction of evidence, if not bad

faith itself, would create a more level playing field when defendants

contend that the loss of potentially critical evidence violated their

due process rights.

¶ 73 First, it is not an easy task to prove bad faith. Law

enforcement officers have a disincentive to admit to their intentional

destruction of evidence, particularly because the intentional

destruction of evidence is sanctionable. And, even if evidence is

destroyed intentionally, the destruction of evidence is rarely

documented on a video recording. The task of proving the bad faith

destruction of evidence is so difficult that I am unaware of any

Colorado appellate decision holding that a law enforcement officer

destroyed evidence in bad faith. While the vast majority of officers

38
in Colorado would never think about engaging in such behavior, it

would be naive to assume it has never occurred.

¶ 74 Second, absent proof of bad faith, a defendant attempting to

prove a due process violation premised on a law enforcement

officer’s destruction of evidence faces an impossible task: proving

that the evidence he or she never saw was exculpatory.

¶ 75 Of course, Eason did not establish that the deleted body

camera recording was exculpatory. How could he? The

Department deleted the video before he and his counsel could see it.

The defense didn’t know, the trial court didn’t know, and we don’t

know what the victims and witnesses said on the destroyed video.

¶ 76 Nor could Eason assess whether the allegedly comparable

evidence, most notably the deputy’s one-page summary of the

hour-long video, was comparable to the information on the video

recording. Eason had nothing to compare to the allegedly

comparable evidence.

¶ 77 The Ohio Court of Appeals aptly described this conundrum:

The state contends that even if its refusal to
provide the videotape was noncompliant with
[Ohio] Crim. R. 16, [the defendant] has still
failed to show that he was prejudiced by the
refusal — as he offers only speculation and

39
cannot demonstrate that the tape would have
proven his innocence. After our initial
bewilderment, we question whether the state is
facetious in advancing this Alice-in-
Wonderland argument. The tautology is too
obvious: [T]he defendant has not justified his
right to a copy of the videotape upon which he
might experiment in search of exculpatory
evidence because he has not already proven
that the experiment would produce
exculpatory evidence. . . . The repetitive and
circular invective is dizzying.

Thus, we are reminded of Alice’s tumble down
the rabbit hole, and the point at which she
observed the Knave of Hearts standing trial for
theft of the Queen’s tarts. . . . Accordingly, if
[the defendant] cannot prove that he was not
the driver of the car, then he has no right
to demand evidence with which he might prove
that he was not the driver. This is patently
absurd.

State v. South, 2005-Ohio-2152, ¶¶ 13-14, 832 N.E.2d 1222,

1226-27.

¶ 78 But this is not the right case for deciding whether the

destruction of potentially exculpatory evidence as a consequence of

a law enforcement agency’s conscious disregard of its document

retention policy violates a defendant’s right to due process. The

record in this case does not reveal the circumstances of the

destruction of the body camera videos in the two other cases.

40
Without such information, it is impossible for us to determine

whether the employees of the Department consistently turn a blind

eye to the Department’s document retention policy. Accordingly,

based on the record of the proceedings in the trial court, I agree

with the majority that the Department did not destroy the body

camera video recording in bad faith. Following our precedents, I

also agree with the majority that the destruction of the recording

did not violate Eason’s due process rights.

¶ 79 But my agreement with my colleagues’ conclusion does not

mean that the majority opinion should be construed as condoning

law enforcement officers’ lackadaisical adherence to retention

requirements. The courts will not tolerate a law enforcement

agency’s systemic failure to comply with its document retention

policy or any other retention requirement imposed by law.

41