1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                         ADVANCE SHEET HEADNOTE
7                                                                  September 10, 2018
8
9                                         2018 CO 70
0
1   No. 15SC163, Zoll v. People—Disclosure—In Camera Review—Critical Stage.
2
3         The supreme court holds that when an appellate court determines that the trial

4   court erred in failing to disclose certain documents from a file reviewed in camera, the

5   proper remedy is to remand the case to the trial court with instructions to provide the

6   improperly withheld documents to the parties and to afford the defendant an

7   opportunity to demonstrate that there is a reasonable probability that, had the

8   documents been disclosed before trial, the result of the proceeding would have been

9   different. The supreme court also holds that, even if the court of appeals erred in

0   determining that replaying a small portion of a recording in the courtroom during

1   deliberations was not a critical stage of the proceeding that required the defendant’s

2   presence, any error in failing to secure the defendant’s attendance was harmless beyond

3   a reasonable doubt.
1

2

3                        The Supreme Court of the State of Colorado
4                          2 East 14th Avenue • Denver, Colorado 80203


5                                         2018 CO 70

6                            Supreme Court Case No. 15SC163
7                          Certiorari to the Colorado Court of Appeals
8                           Court of Appeals Case No. 11CA2316
9                                          Petitioner:
0                                       Matthew J. Zoll,
1                                              v.
2                                         Respondent:
3                             The People of the State of Colorado.

4                      Judgment Affirmed in Part and Reversed in Part
5                                           en banc
6                                      September 10, 2018
7
8
9   Attorneys for Petitioner:
0   Megan Ring, Public Defender
1   Tracy C. Renner, Deputy Public Defender
2    Denver, Colorado
3
4   Attorneys for Respondent:
5   Cynthia H. Coffman, Attorney General
6   Melissa D. Allen, Senior Assistant Attorney General
7    Denver, Colorado
8
9
0
1
2
3
4
5
6
7   JUSTICE SAMOUR delivered the Opinion of the Court.
¶1       A jury found petitioner, Matthew Zoll, guilty of second degree assault on a peace

officer, criminal impersonation, and two counts of resisting arrest. The trial court

subsequently adjudicated Zoll a habitual criminal and sentenced him to eighteen years

in the Department of Corrections. Zoll appealed, and a division of the court of appeals

affirmed his convictions in a unanimous, unpublished opinion. We granted certiorari to

determine: (1) the proper remedy when an appellate court concludes that the trial court

incorrectly failed to disclose certain documents from a responding officer’s personnel

file; and (2) whether replaying a 911 recording1 for the jury in the courtroom during

deliberations is a critical stage of the proceeding requiring the defendant’s presence.2

¶2       We hold that the court of appeals erred in assessing whether the nondisclosure of

documents in a responding officer’s personnel file affected the outcome of the trial.


1The recording is actually of police radio communications. However, because the
parties refer to it as a “911 recording,” we do the same here for the sake of consistency.

2   Specifically, we granted certiorari on the following issues:

         1. Whether an appellate court, having concluded that records relating to a police
            officer’s credibility should have been disclosed prior to trial, must remand the
            case to the trial court to determine whether a new trial is required.

         2. Whether the court of appeals applied an incorrect legal standard for
            determining whether a new trial is required.

         3. Whether the court of appeals erred in concluding that replaying a 911
            recording for the jury during deliberations was not a critical stage of the
            proceedings requiring petitioner’s presence.

Because the first two issues go hand-in-hand, we address them together.




                                               2
Instead, the court of appeals should have remanded the case to the trial court with

directions to disclose the improperly withheld documents to the parties and to afford

Zoll an opportunity to demonstrate that there is a reasonable probability that, had the

documents been disclosed to him before trial, the result of the proceeding would have

been different. We further hold that, even if replaying the 911 recording for the jury in

the courtroom during deliberations could be deemed a critical stage of the proceeding,

Zoll’s absence was harmless beyond a reasonable doubt.        Therefore, we decline to

address whether the court of appeals correctly decided that Zoll’s absence did not occur

during a critical stage of the proceeding. Accordingly, we reverse in part, affirm in

part—albeit on different grounds—and remand to the court of appeals with instructions

to return the case to the district court for further proceedings consistent with this

opinion.

                          I. Facts and Procedural History

¶3    Deputy Mitchell was on patrol around 2:00 a.m. when he discovered a car

parked in a construction area. He became suspicious, so he pulled up behind it. Inside

he found Zoll in the passenger seat and Zoll’s friend in the driver’s seat. He chatted

with them, took their names, and walked back to his patrol car to check the information

provided. Zoll, who had no form of identification and had given a false name, was

acting nervous and looking back in the direction of the patrol car. As Deputy Mitchell

returned with his gun drawn to talk to Zoll, things quickly went south, although the

jury heard different versions of what occurred. According to Deputy Mitchell, Zoll

opened his door and attacked him; but according to Zoll’s friend, Zoll tried to flee and


                                           3
struggled with the deputy in the process. Zoll was subsequently charged with multiple

crimes, including assault on a peace officer.

¶4     Not surprisingly, whose story held water became a central issue in the case.

Before trial, Zoll served a subpoena on Deputy Mitchell’s employer to obtain

information from the deputy’s disciplinary file.     Zoll specifically requested records

related to any internal affairs investigations, criminal charges, and complaints that

might indicate a “departure from the truth.” Deputy Mitchell’s employer tendered the

records requested to the trial court which, in turn, reviewed them in camera to protect

the deputy’s privacy. The trial court performed a balancing test, weighing the deputy’s

expectation of privacy against Zoll’s interest in defending himself, and then disclosed

four sets of documents. As mentioned, following a jury trial, Zoll was convicted of

assault on a peace officer, two counts of resisting arrest, and criminal impersonation.

¶5     On appeal, Zoll asked a division of the court of appeals to review the disciplinary

records subpoenaed in case the trial court had missed something. The division did so

and concluded that the trial court should have disclosed one additional set of

documents, which related to an August 2010 incident (the “August 2010 documents”).

However, it declined to reverse, holding that the undisclosed records “did not affect the

outcome of the trial and was harmless beyond a reasonable doubt.”

¶6     Zoll also contended that his presence was constitutionally required when, at the

jury’s request, the trial court replayed a 911 recording in the courtroom during

deliberations.   Shortly after receiving the jury’s request, the trial court asked the

Sheriff’s deputies to escort Zoll, who was in custody, back into the courtroom so that he


                                                4
could be present when the 911 recording was replayed. After waiting approximately

twenty minutes, defense counsel announced that he was “fine with waiving” Zoll’s

appearance. The trial court accepted counsel’s purported waiver, ordered the jury

brought in, and replayed the 911 recording outside Zoll’s presence. Zoll urged the

division to reverse his convictions, arguing this was a critical stage of the criminal

proceeding that he had a constitutional right to attend. The division disagreed. It

concluded that replaying the recording was not a critical stage of the proceeding

requiring Zoll’s presence.

                                     II. Analysis

¶7    Zoll avers that the court of appeals erred in assessing whether the nondisclosure

of the August 2010 documents affected the outcome of the trial. Rather, asserts Zoll, the

court of appeals should have remanded the case to the trial court with instructions to

disclose the improperly withheld documents to the parties and to give Zoll an

opportunity to show that a reasonable probability exists that, had the documents been

disclosed to him before trial, the result of the proceeding would have been different.

Zoll further maintains that replaying the 911 recording during deliberations was a

critical stage of the proceeding at which he had a constitutional right to be present. We

address each contention in turn.

            A. Proper Remedy for Trial Court’s Erroneous Failure to
               Disclose Documents Following In Camera Review

¶8    We have not had occasion to address the proper remedy when, following an in

camera review, the trial court provides the parties access to some, but not all, of the




                                           5
documents that should be disclosed. In determining that a remand was not necessary,

the court of appeals relied on People v. Kyle, 111 P.3d 491 (Colo. App. 2004). There, the

defendant claimed that the trial court erred in denying him access to records of the child

sexual assault victim maintained by the Department of Human Services (“DHS”) and a

treatment facility. Id. at 503. A division of the court of appeals disagreed, noting that

the defendant received a copy of certain notes from the victim’s psychotherapist related

to the allegations of sexual abuse brought against him. Id. Although the division

acknowledged that the trial court neither disclosed nor reviewed the rest of the

documents, it concluded, based on its own in camera review, that reversal was not

required because “none of those documents would have changed the outcome of any

pretrial proceeding or defendant’s trial.” Id. at 504.

¶9     Kyle relied exclusively on Exline v. Gunter, 985 F.2d 487 (10th Cir. 1993), for the

proposition that when a trial court errs in failing to conduct an in camera review of

DHS records, “reversal is not required if an appellate court can conclude, upon review

of the records, that the information in the files would probably not have changed the

outcome of the defendant’s trial, or if the nondisclosure was harmless beyond a

reasonable doubt.” Kyle, 111 P.3d at 504. But nothing in Exline supports this statement.

In Exline, a federal habeas corpus proceeding, the United States Court of Appeals for

the Tenth Circuit agreed with the federal district court’s finding that the defendant’s

right to due process was violated by the state trial court’s failure to conduct an in

camera review of certain DHS records related to the child sexual assault victim. 985

F.2d at 488–89. The court, therefore, declined to disturb the district court’s decision to


                                             6
hold in abeyance the habeas corpus petition until the state trial court conducted an in

camera review of the DHS records. Id. As the court explained, the state trial court had

yet to determine whether the records contained information that probably would have

changed the outcome of the defendant’s trial. Id. at 491. Thus, neither the appellate

court nor the federal district court in Exline assessed whether the nondisclosure of

documents affected the outcome of the trial or was harmless beyond a reasonable

doubt; rather, that determination was left to the state trial court in the first instance on

remand.

¶10    Six years after Kyle was decided, a different division of the court of appeals

addressed a similar issue in People in Interest of A.D.T., 232 P.3d 313 (Colo. App. 2010).

In A.D.T., A.D.T. appealed her adjudications for acts which, if committed by an adult,

would have constituted unlawful sexual contact and harassment.            Id. at 315. The

division concluded that the juvenile court erred in failing to review in camera eight of

the nine DHS files of the victim, as well as by failing to disclose certain documents from

the file it did review. Id. The question remained, however, as to “whether the failure to

disclose such documents previously entitle[d] A.D.T. to a new trial.” Id. at 320. The

division concluded that the juvenile court had to consider the issue first on remand:

       [B]ecause A.D.T. bears the burden of establishing prejudice, see [People v.
       Jowell, 199 P.3d 38, 47 (Colo. App. 2008)], the court shall disclose the
       pertinent documents to the parties and give A.D.T. an opportunity to
       demonstrate a reasonable probability that, had these records been
       disclosed to her, the result of the proceeding would have been different.
       See People v. Hustead, 74 Cal. App. 4th 410, 87 Cal. Rptr. 2d 875, 884–85
       (1999) (adopting such a procedure on similar facts, and holding, “On
       remand, the appellant will have an opportunity to determine if he would
       have been able to present any additional evidence at trial as a result of any


                                             7
       discoverable information.”); see also United States v. McGowan, 423 F.2d
       413, 418–19 (4th Cir. 1970) (in a case involving grand jury minutes, the
       court opined that once it had determined that certain of those minutes
       should have been disclosed to the defense, the appropriate procedure was
       for defense counsel to review those minutes to determine what in them
       was “useful”); Commonwealth v. French, 531 Pa. 42, 611 A.2d 175, 179–80
       (1992) (the question of prejudice resulting from the trial court’s erroneous
       failure to order the production of certain witness statements to the
       defendant should not be determined without first permitting defense
       counsel to view the statements in question with the eye of an advocate
       and to argue to the trial court their impeachment value).

Id. at 318.

¶11    We agree with the division’s approach in A.D.T. and adopt it now. It is the

defendant’s burden to show prejudice as a result of a trial court’s erroneous

nondisclosure, and an appellate court cannot review the improperly withheld

documents with an advocate’s eye. As the Pennsylvania Supreme Court recognized in

French, “[m]atters contained in a witness’s statement may appear innocuous to some,

but have great significance to counsel viewing the statements from the perspective of an

advocate for the accused about to cross-examine a witness.” 611 A.2d at 179 (quoting

Commonwealth v. Grayson, 353 A.2d 428, 429 (Pa. 1976)). This is particularly so where,

as here, the case turns on the witnesses’ credibility and the undisclosed information

relates directly to the credibility of the prosecution’s primary witness.     Of course,

defense counsel is also in the most suitable position to evaluate whether additional

evidence may have been discovered before trial as a result of the undisclosed

information. Hustead, 87 Cal. Rprt. 2d at 884–85.

¶12    Thus, we hold that when an appellate court determines that the trial court erred

in failing to disclose certain documents from a file reviewed in camera, the proper


                                            8
remedy is to remand the case to the trial court with instructions to provide the

documents to the parties and to afford the defendant an opportunity to demonstrate a

reasonable probability that, had the documents been disclosed before trial, the result of

the proceeding would have been different. On remand, the trial court, in its discretion,

should determine the manner in which to allow the defendant to attempt to make the

requisite showing of prejudicial error. A.D.T., 232 P.3d at 318, 320. If the trial court

concludes there is a reasonable probability that the result of the trial would have been

different, then it must grant the defendant a new trial. Id. at 321. On the other hand, if

the trial court finds no such reasonable probability exists, then it may leave in place its

judgment of conviction, subject to the defendant’s right to appeal. Id.

¶13   Because the division here failed to remand the case to the district court consistent

with the holding in A.D.T. and, instead, assessed whether the nondisclosure of the

August 2010 documents affected the outcome of the proceeding, we reverse its

judgment. We disapprove the holding in Kyle to the extent it is inconsistent with this

opinion.

           B. Zoll’s Absence as 911 Recording Was Replayed During
              Deliberations

¶14   Zoll next claims that the court of appeals erred in determining that replaying the

911 recording in the courtroom during deliberations was not a critical stage of the

proceeding that required his presence. We conclude that, even if Zoll is correct, any

error by the trial court in accepting the purported waiver of his appearance was

harmless beyond a reasonable doubt.



                                            9
                                1. Standard of Review

¶15    “Whether a trial court violated a defendant’s right to be present is a

constitutional question that is reviewed de novo.” People v. Guzman-Rincon, 2015

COA 166M, ¶ 29, 369 P.3d 752, 758; see also People v. Bergerud, 223 P.3d 686, 693 (Colo.

2010) (de novo standard applies to review of a waiver of a constitutional right). The

effectiveness of a waiver of the right to be present is likewise reviewed de novo. People

v. Price, 240 P.3d 557, 560 (Colo. App. 2010).

¶16    We have clarified that if a constitutional trial error was not preserved, the claim

is subject to plain error analysis, not harmless error analysis. People v. Miller, 113 P.3d

743, 749–50 (Colo. 2005). In Miller, we explained “that constitutional harmless error

analysis is reserved for those cases in which the defendant preserved his claim for

review by raising a contemporaneous objection.” Id. at 749. Thus, only where an error

in the denial of a defendant’s right to be present was preserved through a

contemporaneous objection will we review for constitutional harmless error. People v.

Payne, 2014 COA 81, ¶ 7, 361 P.3d 1040, 1042.

¶17    The People urge us to apply plain error analysis, arguing that the trial court’s

alleged error was not preserved because no contemporaneous objection was lodged

when the 911 recording was replayed outside Zoll’s presence. As the People note, not

only was there no objection, defense counsel specifically informed the trial court that he

waived his client’s appearance for the publication of the 911 recording during

deliberations.   However, we reject the People’s position and apply harmless error

analysis because Zoll did not have an opportunity to contemporaneously object to the


                                            10
publication of the 911 recording during deliberations or to his counsel’s purported

waiver, as was Zoll’s right. See People v. Curtis, 681 P.2d 504, 511 (Colo. 1984); People

v. Wingfield, 2014 COA 173, ¶ 19, 411 P.3d 869, 873; Crim. P. 51 (“[I]f a party has no

opportunity to object to a ruling or order, the absence of an objection does not thereafter

prejudice him.”). Zoll was not in the courtroom when the trial court decided, and both

counsel agreed, to replay the 911 recording for the jury. Nor was he in the courtroom

when his counsel’s purported waiver occurred.

¶18    Unlike the plain error standard, which holds that the error must have been “so

clear-cut [and] so obvious” that the trial judge should have been able “to avoid it

without the benefit of objection,” People v. Pollard, 2013 COA 31M, ¶ 39, 307 P.3d 1124,

1133, under harmless error analysis, we evaluate whether the trial court’s error “was

harmless beyond a reasonable doubt,” Luu v. People, 841 P.2d 271, 275 (Colo. 1992)

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). More than fifty years ago, the

United States Supreme Court “recognized that most constitutional errors can be

harmless.”   Id. at 273 (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).

Harmless error review analyzes the basis on which “the jury actually rested its verdict.”

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (quoting Yates v. Evatt, 500 U.S. 391, 404

(1991)). The inquiry “is not what effect the constitutional error might generally be

expected to have upon a reasonable jury, but rather what effect it had upon the guilty

verdict in the case at hand.” Id. Stated differently, the question “is not whether, in a

trial that occurred without the error, a guilty verdict would surely have been rendered,

but whether the guilty verdict actually rendered in this trial was surely unattributable


                                            11
to the error.” Id. For an error to be constitutionally harmless, the reviewing court

“must be confident beyond a reasonable doubt that the error did not contribute to the

guilty verdict.” Bernal v. People, 44 P.3d 184, 200 (Colo. 2002). If a review of the entire

record demonstrates “a reasonable possibility that the error might have contributed to

the conviction,” the error cannot be harmless and we must reverse. Hagos v. People,

2012 CO 63, ¶ 11, 288 P.3d 116, 119 (quotation, alteration, and emphasis omitted).

                                    2. Relevant Law

¶19    Both the United States Constitution and the Colorado Constitution “guarantee

the right of a criminal defendant to be present at all critical stages of the prosecution.”

People v. White, 870 P.2d 424, 458 (Colo. 1994). “The constitutional right to presence is

rooted to a large extent in the Confrontation Clause of the Sixth Amendment, . . . but . . .

[that] right is protected by the Due Process Clause in some situations where the

defendant is not actually confronting witnesses or evidence against him.” United States

v. Gagnon, 470 U.S. 522, 526 (1985).

¶20    Whether grounded in the Sixth Amendment or the Fourteenth Amendment, the

right to presence “is not absolute.” Luu, 841 P.2d at 273. A defendant has the right to

be present “whenever his presence has a relation, reasonably substantial, to the fullness

of his opportunity to defend against the charge.” Kentucky v. Stincer, 482 U.S. 730, 745

(1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06 (1934)). In other words,

the defendant’s presence is only required “to the extent that a fair and just hearing

would be thwarted by his absence.”           Id.    (quoting Snyder, 291 U.S. at 108).

Consequently, the right to be present is not constitutionally guaranteed when the


                                            12
defendant’s presence would be useless or when the benefit of the defendant’s presence

would be “but a shadow.” Id. (quoting Snyder, 291 U.S. at 106–07).

¶21    A defendant may waive the right to be present at critical stages of criminal

proceedings. Wingfield, ¶ 19, 411 P.3d at 873. But defense counsel cannot waive this

right on the defendant’s behalf. Id. (citing Curtis, 681 P.2d at 511).

                                     3. Application

¶22    Even if the trial court erred in replaying the 911 recording during deliberations in

Zoll’s absence, we are satisfied that any error was harmless beyond a reasonable doubt.

For multiple reasons, we conclude that there is no reasonable possibility that Zoll’s

absence might have contributed to his convictions.

¶23    First, only a small portion of the 911 recording was played during deliberations.

The record reflects that what was replayed for the jury was approximately three

minutes in duration.

¶24    Second, the portion of the 911 recording published during deliberations had been

played for the jury already in Zoll’s presence without objection. Hence, during Zoll’s

absence, the jury simply heard a second time the recording it had previously heard in

his presence.

¶25    Third, Zoll’s counsel was present as the 911 recording was replayed. Thus, while

Zoll was not in attendance, his representative was in the courtroom.

¶26    Fourth, the 911 recording was replayed under the watchful eye of the trial judge,

and there is no allegation that counsel, the jury, or anyone else engaged in improper

conduct as the recording was replayed. Nor is there any indication that an irregularity


                                             13
took place while the 911 recording was replayed, or that the 911 recording was tainted

or vulnerable to manipulation.

¶27   Finally, the part of the trial during which the 911 recording was replayed did not

include any dialogue, much less a substantive discussion, between the judge and the

parties. There was no need for the trial court to consult with Zoll about any issue or for

Zoll to provide feedback to his counsel about any matter. Indeed, Zoll’s own counsel

did not believe Zoll’s appearance was necessary.         It was defense counsel who,

unprompted, advised the trial court that he waived Zoll’s appearance for the

publication of the 911 recording during deliberations. In so doing, counsel admitted

that Zoll’s appearance was not needed because “[a]ll we’re going to do is play the tape”

and “Zoll’s heard the tape once” already during the trial. Zoll’s counsel then aptly

acknowledged that “a lot of times the jury will listen” to admitted recordings during

deliberations “without any of the parties present.”

¶28    Zoll nevertheless contends that reversal is required because of the negative

psychological impact his absence may have had on the jury. More specifically, Zoll

asserts that the jury may have become biased or prejudiced against him because it may

have inferred from his absence that he did not take the case seriously.           We are

unpersuaded by Zoll’s speculation.

¶29   Significantly, although the jury found Zoll guilty of multiple charges, it acquitted

him of the charge of attempting to disarm a peace officer. If, as Zoll surmises, the jury

had such a negative reaction to his absence that its verdicts were influenced by bias or

prejudice, it presumably would have found him guilty of all the charges. That the jury


                                           14
found him not guilty of one charge and guilty of the remaining charges suggests that it

did not disregard the trial court’s instructions, including the instruction to make

decisions “by applying the rules of law” provided “to the evidence presented at trial”

without being influenced by “sympathy” or “prejudice.” See People v. McKeel, 246

P.3d 638, 641 (Colo. 2010) (“We presume that jurors follow the instructions that they

receive.”); People v. Ibarra, 849 P.2d 33, 39 (Colo. 1993) (When the defendant fails to

present “evidence of jury bias,” we presume “that the jury understood and heeded the

trial court’s instructions.”). Nor is there any basis to believe that all twelve jurors were

so significantly impacted by Zoll’s absence that they violated the oath they took at the

beginning of the trial to “well and truly try the case” and to “render a true verdict

according to the evidence.”

¶30    On the record before us, we are confident beyond a reasonable doubt that Zoll’s

absence in no way contributed to the guilty verdicts. Therefore, we conclude that any

error by the trial court was harmless.

¶31    We feel compelled to emphasize that the better practice would have been for the

trial court to wait until Zoll was brought into the courtroom. Even when defense

counsel offers to waive the defendant’s appearance from what may seem like a

noncritical stage of the proceeding, the most prudent and sound course of action is for

the trial court to wait until the defendant is present. We sympathize with the trial

courts because we are keenly aware of the burdensome dockets and severe time

demands they face. But, as the old adage goes, “haste makes waste.”




                                            15
                                    III. Conclusion

¶32    We hold that the court of appeals erred in assessing whether the nondisclosure of

certain documents from Deputy Mitchell’s personnel file affected the outcome of the

trial. Instead, the court of appeals should have remanded the case to the district court

with directions to provide the parties the improperly withheld documents and to afford

Zoll an opportunity to demonstrate that there is a reasonable probability that, had he

received the documents before trial, the outcome of the proceeding would have been

different. We further hold that, even if the court of appeals erred in determining that

replaying the 911 recording during deliberations was not a critical stage of the

proceeding that required Zoll’s presence, any error in failing to secure Zoll’s attendance

was harmless beyond a reasonable doubt. Therefore, we reverse in part, affirm in part

on different grounds, and remand to the court of appeals with instructions to return the

case to the district court for further proceedings consistent with this opinion.




                                            16
