EXAMPLES OF MOTIONS
AND RESPONSES
1. Destruction of Exculpatory Evidence
Defense Motion ………………………………………….. 2
Prosecution Response ………………………………….. 9
2. Suppression of Statements of Juvenile Defendant
Defense Motion …………………………………………. 15
Prosecution Response …………………………………. 28
3. Prosecution Response “Motion to Compel Prosecution to Provide the Defense with the Oral Statements of
Witnesses” …………………………………………………….. 37
4. Prosecution Response “Change of Venue” ……………. 41
DISTRICT Court, CONEJOS County, ColoradoCourt Address: P. O. Box 128, Conejos, CO 81129 / cOURT USE ONLY
THE PEOPLE OF THE STATE OF COLORADO,
Plaintiff
v.
TYRONE MARTINEZ,
Defendant
Douglas K. Wilson, Colorado State Public Defender
Daniel F. Zettler, #32388
David M. Lipka, #37778
Deputy Public Defender
Alamosa Regional Public Defenders
610 Main St., Alamosa, CO 81101
Phone: (719) 589-9615 Fax: (719) 589-6178
E-mail: / Case No. 2010 CR 53
Division
MOTION TO DISMISS OR IN THE ALTERNATiVE IMPOSE SANCTIONS FOR DESTRUCTION OF EVIDENCE AND IMPEDING INVESTIGATION (D-30)
Mr. Martinez, through counsel, moves the Honorable Court to dismiss all charges or in the alternative impose sanctions for the destruction of evidence and for impeding counsel’s investigation in violation of Mr. Martinez’s Due Process rights under the Federal Constitution, as well as his Due Process rights under the Colorado State Constitution and his statutory rights under C.R.Cr.P. 16. He presents the following arguments in support of this motion:
BACKGROUUND
1. Mr. Martinez is charged with Murder in the First Degree, After Deliberation (F1) and Murder in the First Degree, Felony Murder (F1), in addition he is charged with numerous other lesser criminal law violations.
2. The prosecution alleges he shot the alleged victim, Norma Salazar, three times through an open window while standing outside her apartment.
3. On August 6, 2010, the Colorado Bureau of Investigation (CBI) conducted an investigation of the alleged crime scene at 302 Main Street, La Jara, Colorado. During this investigation, despite extensive efforts, they were unable to locate one of the projectiles that they believed passed through Norma Salazar causing her death. This projectile was the projectile whose path was relied on for CBI trajectory analysis.
4. On August 9, 2010, Mr. Martinez, through counsel, filed a Motion for Preservation and Production of Physical Evidence (D-4).
5. D-4 specifically requested that the Court order the Prosecution to preserve and provide him with access to any and all physical evidence.
6. On or about August 10, 2010 the prosecution filed a written response objecting to Mr. Martinez’s D-4.
7. The prosecution’s motion specifically acknowledged the constitutional and statutory obligation of the prosecution and “any others who have participated in the investigation… of the case” to preserve, disclose and not purposefully or in bad faith destroy any evidence:
a. “The People are required to act reasonably and not in bad faith in the preservation of constitutionally material evidence.” See People’s Response to Defendant’s “Motion For Preservation and Production of Physical Evidence (D-4),” (hereinafter People’s Response), introductory paragraph.
b. “The state is required to employ regular practices to preserve evidence when it is reasonably foreseeable that the evidence might be favorable to the accused.” See People’s Response at paragraph 4.
c. “The People are required to not purposefully or in bad faith destroy any Brady material.” See People’s Response at paragraph 5.
d. “Crim.P.16(I)(a)(2) requires the disclosure of ‘any material or information within (the prosecuting attorney’s) possession or control which tends to negate the guilt of the accused as to the offense charged.” See People’s Response at paragraph 13.
e. “Crim.P.16(I)(c)(sic) addresses materials held by other government personnel, other than the prosecution. The rule requires that the prosecution make ‘diligent good faith efforts to cause such material’ to be made available to the defense.” See People’s Response at paragraph 14.
8. On September 8, 2010, the Honorable Judge Mary Elizabeth Garcia granted Mr. Martinez’s Motion to Preserve (D-4).
9. On August 20, 2010, La Jara Police Chief Daniel Martinez, Deputy Howard Galvez of the Conejos County Sheriff’s Office, Deputy District Attorney McIntyre, Public Defender Investigatory Dale Salazar, Public Defender Daniel Zettler and Public Defender David Lipka where all present at 302 Main Street La Jara, Colorado so that the defense team could conduct initial investigations at the scene of the alleged crime.
10. Based on good faith belief, during the time all parties were present, Deputy Galvez located a flattened copper lined projectile on an outside stair rung leading up to the window outside Norma Salazar’s apartment.
11. Deputy Galvez showed the projectile to Deputy District Attorney McIntyre and La Jara Police Chief Daniel Martinez while intentionally keeping the discovery hidden from the defense team.
12. In contrast to standard practice concerning the handling of physical evidence, La Jara Police Chief Daniel Martinez picked the projectile up with his bare hands and placed it in the pocket of his trousers. Prior to handling and collecting the evidence he did not obtain gloves, an evidence collection bag or otherwise document the projectiles location or condition.
13. After collecting the evidence, La Jara Police Chief Daniel Martinez apparently forgot about the projectile and lost it.
14. Mr. Martinez has filed a motion requesting all projectiles be provided for independent forensic testing.
THE LAW
15. The prosecution's suppression of material evidence, which is favorable to an accused and relates to either guilt or punishment, violates due process of law. Brady v. Maryland, 373 U.S. 83 (1963); People v. Greathouse, 742 P.2d 334 (Colo. 1987); People v. Sheppard, 701 P.2d 49 (Colo. 1985). “[W]hen evidence can be collected and preserved in the performance of routine procedures by state agents, the failure to do so is tantamount to suppression of the evidence." Greathouse, 742 P.2d at 337; Gallagher v. District Court, 656 P.2d 1287 (Colo. 1983). The state is required to employ regular procedures to preserve evidence when it is reasonably foreseeable that such evidence might be favorable to the accused. Id..
16. It is well established that after a request is made by an accused, the prosecution's suppression of material evidence which is favorable to an accused and relates to either guilt or punishment, violates due process of law. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Accord, e.g., United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); People v. Sheppard, 701 P.2d 49 (Colo.1985); People ex rel. Gallagher v. District Court, 656 P.2d 1287 (Colo.1983); Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979). In considering whether the prosecution's acts amount to a suppression of evidence, we have held that “when evidence can be collected and preserved in the performance of routine procedures by state agents, the failure to do so is tantamount to suppression of the evidence.” Gallagher, 656 P.2d at 1291. The state is required to employ regular procedures to preserve evidence when it is reasonably foreseeable that such evidence might be favorable to the accused. Id.; People v. Gomez, 198 Colo. 105, 596 P.2d 1192 (1979). We have recognized that “when the police conduct scientific tests, they must preserve samples to permit the defendant to accomplish independent testing, permit the defendant's experts to monitor the police testing, or provide some other suitable means to allow the defendant to verify independently the appropriateness of the procedures and the accuracy of the results of the testing.” Gallagher, 656 P.2d at 1292. Our prior cases have involved “a failure to preserve evidence after arrests had been made and the facts had stabilized.” People v. Pope, 724 P.2d 1323, 1326 (Colo.1986) (emphasis added). In the case at bar, the state's failure to preserve evidence must be considered in the context of the ongoing investigation before the facts had stabilized.
17. To show a due process violation Mr. Martinez must show 1) the evidence was lost or destroyed by state action; 2) the evidence possessed an exculpatory value that was apparent before the evidence was destroyed; 3) the evidence is of such a nature that Mr. Martinez will be unable to obtain comparable evidence by other reasonably available means. See California v. Trombetta, 467 U.S. 479, 488 (1984); People v. Greathouse, 742 P.2d 334 (Colo. 1987); People v. Sheppard, 701 P.2d 49 (Colo. 1985).
18. Colorado Rule of Crim.P.16(I)(a)(1)(IV) requires the prosecution to “make available” any “tangible object held as evidence in connection with the case”.
19. Colorado Rule Crim.P.16(I)(a)(2) requires the disclosure of any material or information within (the prosecuting attorney’s) possession or control which tends to negate the guilt of the accused as to the offense charged.
20. Colorado Rule Crim.P.16 (III)(a) notes in relevant part that “the prosecuting attorney…nor other prosecution or defense personnel shall…refrain from... showing any relevant material to any party, counsel or their agent, nor shall otherwise impede counsel’s investigation of the case.”
21. Relevant material is defined as material that tends to prove or disprove any fact of consequence to the defendant’s guilt or innocence. See People v. Gallegos, 644 P.2d 920 (Colo. 1982); see also CRE 401.
22. The state has a constitutional duty to preserve evidence that is constitutionally material. See People v. Wyman, 788 P.2d 1278 (Colo. 1990); see also Arizona v. Youngblood, 488 U.S. 51 (1988)
23. The goal of preservation is to eliminate the catch 22 inherent in trying to argue why a piece of evidence was constitutionally material. See California v. Trombetta, 467 U.S. 479, 488 (1984).
24. "The trial court has broad discretion in fashioning an appropriate remedy to protect a defendant's rights where a due process violation has denied him access to evidence.” People v. District Court, 656 P.2d 1287, 1293 (Colo. 1983); People v. District Court, 808 P.2d 831 (Colo. 1991). "The imposition of sanctions serves the dual purposes of protecting the integrity of the truth-finding process and deterring the prosecutor and the police from [misconduct]." People v. District Court, 656 P.2d at 1293. In serving the purpose of protecting the truth-finding process, the sanction should be "no more restrictive than necessary to protect the defendant's right to due process." Id.. The exercise of discretion in fashioning a sanction "should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances." People v. District Court, 808 P.2d 831 (Colo. 1991). In fashioning a sanction to achieve the goal of eliminating the due process violation, a court must strive to restore as nearly as possible the level playing field that existed before the discovery violation. Id.
25. Colorado Rule of Crim.P.16 (III)(g) grants this court broad authority in determining appropriate sanctions for failure to comply with the rule. See People v. District Court, 665 P.2d 247 (Colo. 1983); see also People v. Reger, 731 P.2d 752 (Colo. App. 1986); see also People v. Patterson, 541 P.2d 894 (1975).
ARGUMENT
26. The defense made a request via D-4 for the preservation of all physical evidence, which includes projectiles.
27. The prosecution acknowledged the motion and their obligation to preserve such evidence in their response to D-4.
28. Despite defense motion D-4 and the prosecution’s acknowledgment of their constitutional and statutory obligations, the destruction of the projectile occurred in the presence of the District Attorney, and in a manner which strongly suggests an attempt to impede defense investigation, possibly bad faith, and clearly gross negligence.
29. The evidence was destroyed due to Chief Martinez’s failure to follow standard and well established procedures for the preservation of physical evidence. These actions were witnessed and implicitly approved by the District Attorney.
30. The projectile was clearly material, relevant and exculpatory. Forensic testing of the bullet would have allowed the defense to develop cross-examination of prosecution experts, alternate suspect information regarding what weapon fired the projectile, where and if the projectile passed through Mrs. Salazar’s body, and show the projectile was most likely fired from outside the residence.
31. Mr. Martinez is unable to obtain comparable evidence through other reasonable means. No other projectile recovered from the scene left two impact points, making it the only projectile from which viable trajectory analysis can occur. In addition, no other projectile would have the same trace evidence and damage evident, disallowing this analysis entirely.
32. The destruction and failure to preserve the projectile constitutes both a violation of Mr. Martinez’s Due Process rights under the United States and Colorado Constitutions and his statutory rights under Colorado Rule of Crim.P.16.
33. Dismissal is the appropriate sanction in this case as Mr. Martinez’s statutory rights, rights under the Fifth, Sixth, and Fourteenth Amendment rights under the Federal Constitution, as well as his rights under Article II, Sections 7, 16, 18, and 25 of the State Constitution, have been violated. Brady v. Maryland, 373 U.S. 83 (1963); People v. Greathouse, 742 P.2d 334 (Colo. 1987); People v. Shepherd, 701 P.2d 49 (1985). No less restrictive sanctions would protect Mr. Martinez’s due process rights.
34. If the Court feels dismissal is too harsh a remedy, Mr. Martinez asks for appropriate sanctions which will protect his constitutional rights and statutory rights, including, but not limited to, a reduction in charges and the state being precluded from mentioning, arguing or presenting evidence regarding where Mr. Martinez was allegedly standing when the projectiles were fired. See People v. District Court, 656 P.2d 1287 (Colo. 1983).
______
Daniel F. Zettler, #32388Deputy State Public Defender
Dated: March 21, 2011. / Certificate of Service
I hereby certify that on 03/24/2011, I served the foregoing document by delivering X_ mailing ___ faxing ___ same to all opposing counsel of record.
DISTRICT COURT
CONEJOS COUNTY
STATE OF COLORADO
6683 County Road 13, P.O. Box 128
Conejos, Colorado 81129
THE PEOPLE OF THE STATE OF COLORADO,
Plaintiff,
vs.
TYRONE MARTINEZ,
Defendant / ▲Court Use Only ▲
DAVID MAHONEE, DISTRICT ATTORNEY
Daniel W. Edwards, Special Deputy D.A., 7938
Attorney General’s Office
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Phone: 303-866-5760
Fax: 303-866-5671
Daniel McIntyre, Deputy District Attorney, 40084
Mark Franklin, Deputy District Attorney, 39087
426 San Juan Ave
Alamosa, Colorado 81101
Phone: 719-589-3691
Fax: 719-589-2734 / CASE NUMBER:
10CR53
PEOPLE’S RESPONSE TO DEFENDANT’S “MOTION TO DISMISS OR IN THE ALTERNATIVE IMPOSE SANCTIONS FOR DESTRUCTION OF EVIDENCE AND IMPEDING INVESTIGATION D-30”
COMES NOW, DAVID MAHONEE, District Attorney for the 12th Judicial District, by and through his duly appointed deputies, and respectfully files this “People’s Response To Defendant’s “Motion To Dismiss Or In The Alternative Impose Sanctions For Destruction Of Evidence And Impeding Investigation D-30” To establish a due process violation for the failure to preserve exculpatory evidence, the defendant must prove (1) the evidence was destroyed by state action; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; (3) the defendant was unable to obtain comparable evidence by other reasonably available means; (4) if the evidence was not apparently exculpatory when it was destroyed and was merely potentially useful, the defendant must show that the state agent acted in bad faith; and (5) speculative assertions regarding the exculpatory effect had the evidence been available for testing are not sufficient to show that the loss of the evidence constitutes a due process violation. California v. Trombetta, 467 U.S. 479, 488-89, (1984); Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); People v. Wartena, 156 P.3d 469 (Colo. 2007); People v. Braunthal, 31 P.3d 167, 173 (Colo.2001); People v. Wyman, 788 P.2d 1278, 1279 (Colo.1990); People v. Daley, 97 P.3d 295, 299 (Colo.App. 2004); People v. Scarlett, 985 P.2d 36, 39 (Colo.App. 1998). Applying these well recognized legal principles to the defendant’s motion, even when the motion is construed in the best light for the defendant, the motion is insufficient for a hearing let alone sanctions.