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                                                                     January 22, 2018
8
9                                            2018 CO 4
0
1   No. 13SC1017, People v. Bueno—Motion for New Trial—Evidence.
2
3          In this case, the supreme court considers two questions. The first is whether a

4   Crim. P. 33(c) motion for a new trial is time-barred because it was filed more than one

5   year after the defendant’s conviction, and thus arguably more than one year after “entry

6   of judgment.” The second is whether the trial court erred in granting a new trial after

7   concluding that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by

8   failing to provide to the defense evidence that the prosecution had obtained at the

9   outset of the investigation until after the defendant’s conviction. The supreme court

0   holds that “entry of judgment,” for the purposes of Rule 33(c), does not occur until both

1   a verdict or finding of guilt and the imposition of a sentence. And the supreme court

2   concludes that, applying Brady’s disclosure requirements, the trial court did not abuse

3   its discretion in granting a motion for a new trial.
1

2

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


5                                          2018 CO 4

6                            Supreme Court Case No. 13SC1017
7                           Certiorari to the Colorado Court of Appeals
8                            Court of Appeals Case No. 10CA2114
9                                          Petitioner:
0                              The People of the State of Colorado,
1                                               v.
2                                         Respondent:
3                                         David Bueno.

4                                     Judgment Affirmed
5                                            en banc
6                                        January 22, 2018
7
8   Attorneys for Petitioner:
9   George H. Brauchler, District Attorney, Eighteenth Judicial District
0   David C. Jones, Senior Deputy District Attorney
1   Jennifer Gilbert, Deputy District Attorney
2     Centennial, Colorado
3
4   Attorneys for Respondent:
5   Douglas K. Wilson, Public Defender
6   Karen N. Taylor, Deputy Public Defender
7    Denver, Colorado
8
9
0
1
2
3
4
5
6
7   JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1     A jury found David Bueno, a state-prison inmate, guilty of first-degree murder

and conspiracy in a case concerning a white inmate’s death. The case took more than

two months to try, involved hundreds of motions, and generated tens of thousands of

pages of discovery.    Fifteen months after Bueno’s conviction—but before he was

sentenced—the prosecution disclosed, as relevant here, two reports that had been in its

possession since the first days of the investigation.      One report documented the

discovery of a note found on the day of the murder indicating that white supremacists

were planning to murder white inmates in the prison. The other evinced a detective’s

suspicion that the murder was linked to another homicide that had been committed in

the prison a few days later. Arguing that this belated disclosure violated Brady v.

Maryland, 373 U.S. 83 (1963), Bueno moved for a new trial under Crim. P. 33(c). The

trial court, which had presided over the entirety of this case, found a discovery

violation and determined that a new trial was warranted. A division of the court of

appeals affirmed in a split opinion.

¶2     This appeal requires us to address two questions. The first is whether Bueno’s

Rule 33(c) motion was time-barred because he filed it more than a year after his

conviction, and thus arguably more than a year after “entry of judgment.” The second

is whether the trial court erred in concluding that the prosecution violated Brady’s

disclosure requirement, and specifically, whether the trial court abused its discretion in

concluding that the evidence at issue was material and that the prosecution violated

Crim. P. 16.




                                            2
¶3     As to the first issue, we hold that “entry of judgment” for purposes of Rule 33

occurs after delivery of a verdict of guilt and imposition of a sentence. Hence, because

Bueno filed his Rule 33 motion before the trial court sentenced him, we conclude that he

filed the motion before entry of judgment, meaning it was not time-barred. As to the

second issue, we conclude that the trial court applied appropriate legal standards in

ruling on Bueno’s Brady claim, and we perceive no clear error in the trial court’s factual

findings. Accordingly, we determine that the trial court did not abuse its discretion in

ordering a new trial, and we affirm the judgment of the court of appeals.

                           I. Facts and Procedural History

¶4     Michael Snyder, a white inmate at the Limon Correctional Facility (“LCF”), told

his wife in a recorded phone conversation that he had been ordered to stab another

inmate. The next day, Jeffrey Heird, another white inmate at LCF, was found stabbed

to death in his cell. Snyder would later tell investigators that Heird was the man he had

been ordered to kill.

¶5     Immediately after the discovery of Heird’s body, an inmate found a piece of

paper in the showers that read, “Killers Beuno [sic] and Alehanro [sic]! 1st and 2nd teirs

[sic].” That same evening, Linda Deatrich, a nurse at LCF, discovered a second note

commingled with inmate requests for medical appointments. The parties call that note

“the ABN Letter.” The ABN Letter detailed threats by a white supremacist group to kill

“men of the white race who refuse to accept their proud race,” identified two inmates to

carry out the executions, and named three white inmates at LCF as targets. Neither




                                            3
Bueno nor Snyder was named in the ABN Letter as one of the putative executioners,

and Heird’s name was not among the potential victims.

¶6    Within approximately twenty minutes of her discovery, Deatrich wrote a report,

attached a copy of the ABN Letter to it, and filed the two documents together as an

incident report with LCF; the parties call this “the Deatrich Report.” About an hour

after Deatrich discovered the ABN Letter, a prosecutor named Robert Watson from the

district attorney’s office arrived at LCF to provide legal counsel for the investigation.

By the time Watson left the next morning, he had collected a copy of the Deatrich

Report. It is undisputed that Watson’s working file contained the Deatrich Report and

that the prosecutors possessed it from the day after the murder. Both this report and a

copy of the note found in the shower were included in a packet that investigators at

LCF received at a briefing the morning after Heird’s murder.

¶7    Two days after Heird’s murder, David Hollenbeck, one of the inmates listed as a

target in the ABN Letter, suffered cardiac distress and later died. Lieutenant Tim

Smelser, one of the LCF investigators working on Hollenbeck’s case, explained in his

incident report that the injury that killed Hollenbeck was “predominantly caused by

blunt trauma to the chest,” indicating that Hollenbeck had likely been murdered.

Smelser was concerned at the time that Heird’s murder and Hollenbeck’s suspicious

death were connected because of the ABN Letter. Smelser conveyed his concerns in a

report he prepared three days after Hollenbeck’s death, which the parties call “the




                                           4
Smelser Report.”1 Smelser gave his report to the officers assigned to investigate Heird’s

murder.

¶8       The investigation of Heird’s murder focused on the men named in the note

found in the shower: Bueno and Alejandro Perez.             Almost one year into the

investigation and prior to charging Bueno, Watson left the district attorney’s office. The

trial court found that Watson left his working file regarding the homicide—which

contained, among other documents, the Deatrich Report—at the prosecutor’s office.

Ultimately, the People charged Bueno, Perez, and Perez’s cellmate, Michael Ramirez,2

for Heird’s death.

¶9       Bueno’s and Perez’s cases proceeded through motions and trial separately.3

Bueno’s defense team settled on an alternate-suspect theory of defense. During the

three-plus years Bueno’s case was litigated, Bueno’s defense team repeatedly sought

discovery from the prosecutors of any evidence related to four white inmates at LCF

whom the defense had identified as alternative suspects, including Snyder, who, as

previously noted, told his wife he had been ordered to stab a white inmate the day

before Heird’s murder.         In response to each discovery request, the prosecution

represented that it had disclosed all evidence favorable to the defense, including all

evidence related to the alternative suspects. Well in advance of trial, the prosecution

1 The parties do not relate and the record does not clarify what, if any, further action
investigators took regarding Hollenbeck’s death.
2 After Bueno was found guilty, Ramirez pleaded guilty to tampering with physical
evidence, a class-six felony, and being an accessory to crime (murder), a class-four
felony. He was sentenced to serve two years in prison and four years of probation.
3   Perez’s case was transferred to a different venue.


                                               5
had informed the defense of the note found in the shower and of Snyder’s statement

that he had been ordered to kill a white inmate. Despite its representation of full

disclosure, however, the prosecution did not turn over the Deatrich or Smelser Reports

prior to trial.

¶10    In its search for evidence related to the alternative suspects, the defense team

sought access to five years’ worth of incident report files at LCF, which encompassed

time periods both before and after the murder, involving the use or possession of

shanks in the prison. In response to Bueno’s motion requesting discovery of those

incident report files, the prosecution contended that the reports were irrelevant to the

case. Eventually, the defense obtained access to the files at LCF, and there it searched

9,600 incident reports for all incidents involving the use or possession of shanks at LCF

for the five-year period. Although the Deatrich and Smelser Reports were among the

9,600 incident reports, the defense did not find them in that search.

¶11    The case went to trial nearly four years after Heird’s murder, and the prosecution

sought the death penalty. The identity of Heird’s killer was the core issue at trial, with

Bueno arguing that white supremacists had committed the murder. The trial lasted

more than two months. After four days of deliberation and having received a special

instruction from the court on how to overcome a deadlock, the jury returned guilty

verdicts on the conspiracy and first-degree murder charges.         The jury declined to

impose the death sentence. For reasons not documented in the record provided to us,

the trial court did not impose a sentence, and Bueno remains unsentenced at this time.




                                            6
¶12   Two months after Bueno’s conviction, the Perez defense team gave Bueno’s

defense team the Deatrich and Smelser Reports. Bueno did not have these documents

prior to this time. Bueno’s team did not file a Rule 33(c) motion or otherwise use the

evidence in the months immediately following his conviction.4

¶13   One year after the Perez defense team gave the reports to Bueno’s defense team,

the judge conducting Perez’s trial ordered the prosecution to produce former

prosecutor Watson’s working file to the trial court for in camera review.5         After

producing that file, which included copies of the Deatrich and Smelser Reports, to the

judge in the Perez case, prosecutors disclosed, for the first time, copies of those two

reports from Watson’s working file to Bueno. The People do not dispute that the

prosecution possessed both of these reports within days of Heird’s murder but did not

provide copies of them to Bueno until five years later.

¶14   A week after prosecutors provided Bueno with copies of this evidence, Bueno

moved for a new trial based on newly discovered evidence under Rule 33(c).



4The two defense teams entered into an evidence-sharing agreement that prohibited the
use or disclosure of evidence shared under the agreement until it became public
through use by the disclosing party or the prosecution. Bueno justifies his delayed Rule
33(c) motion for new trial on this agreement. The People counter that such agreements
cannot contravene the Rules of Criminal Procedure, and that Bueno’s thirteen-month
delay from the date Perez’s defense team shared the Deatrich and Smelser Reports
violated the charge in Rule 33(c) to file motions based on newly discovered evidence “as
soon after entry of judgment as the facts supporting it become known to the defendant.”
Because we conclude that Bueno filed his motion before he was sentenced—and thus,
before entry of judgment—we need not address this dispute.
5 The parties do not explain and the trial court here did not make a record as to why the
judge in Perez’s case was aware of Watson’s working file or why it needed to examine it
in camera.


                                            7
Specifically, Bueno alleged that the prosecution’s failure to disclose the Deatrich and

Smelser Reports violated Brady’s disclosure requirements. The prosecution countered

that Bueno’s motion was time-barred under the plain language of Rule 33(c) because he

had filed it more than fifteen months after the jury found him guilty. And even if the

motion was timely, the prosecution argued, the evidence was made available to the

defense because the defense team had access to the reports prior to trial. Hence, those

reports could not constitute newly discovered evidence.         Finally, the prosecution

argued that the reports were not material for Brady purposes.

¶15    After conducting an evidentiary hearing on the alleged Brady violation, the trial

court found that the prosecution had possessed this evidence from the inception of the

investigation, that “a conscious decision was made at some point early in this case to

keep the information from the Defendant by separating these documents from the

balance of Watson’s working file,” and that this suppression “could have significantly

impacted the outcome” of Bueno’s trial.        Based on these findings, the trial court

concluded that the prosecution had violated the disclosure requirements under Brady

and Crim. P. 16(I)(a)(2).   Accordingly, the trial court granted Bueno’s motion and

ordered that he receive a new trial.

¶16    The People appealed, and a division of the court of appeals affirmed in a split

opinion. People v. Bueno, 2013 COA 151, ¶ 30, __ P.3d __. As pertinent here, the

majority affirmed the trial court’s determination that the prosecution had committed a

Brady violation, id. at ¶¶ 26–29, while the dissent concluded that the evidence was not

material for Brady purposes and thus that there was no Brady violation, id. at ¶¶ 31–33.


                                           8
The entirety of the panel agreed that Bueno’s Rule 33(c) motion was timely. Id. at

¶¶ 23, 31. The People then petitioned this court for review, and we granted certiorari.6

¶17      Our task now is to resolve whether Bueno’s motion for a new trial was time-

barred and, if not, whether the trial court abused its discretion in granting that motion.

To do so, we must discuss two related areas of law: Rule 33(c) motions for new trial and

Brady disclosure standards.

                                  II. Standard of Review

¶18      “This court has plenary authority to promulgate and interpret the rules of

criminal procedure.” People v. Steen, 2014 CO 9, ¶ 10, 318 P.3d 487, 490 (citing Colo.

Const. art. VI, § 21).      As such, we review constructions of the rules of criminal

procedure de novo, employing the “same interpretive rules applicable to statutory




6   We granted certiorari to review the following issues:
         1. Whether, as Crim. P. 16(I)(a)(2) requires prosecutors to “disclose”
            material that tends to negate the accused’s guilt, that requirement is
            satisfied where the prosecution possesses a copy, and the defense team
            reviews the material at the investigating police agency but does not
            seek to obtain a copy.
         2. Whether, as Crim. P. 33(c) requires a motion for new trial based on
            newly discovered evidence to be filed as soon after “entry of
            judgment” as to facts supporting it become known, “entry of
            judgment” occurs when the court accepts the jury’s guilty verdict, or
            whether it does not occur until sentencing—such that the defense can
            delay filing the motion—if the defendant has yet to be sentenced.
         3. Whether, in Colorado, where a court may grant a motion for new trial
            based on newly discovered evidence only if the evidence, if presented
            at a new trial, would “probably” produce an acquittal, a court can
            grant such a motion without reciting that standard and without
            making findings that would satisfy that standard.


                                              9
construction.” People v. Corson, 2016 CO 33, ¶ 44, 379 P.3d 288, 297 (quoting Kazadi v.

People, 2012 CO 73, ¶ 11, 291 P.3d 16, 20).

¶19    Our review of a trial court’s ruling on a motion for new trial, however, is more

constrained. A trial court’s decision to grant or deny a new trial is a matter entrusted to

the court’s discretion. People v. Wadle, 97 P.3d 932, 936 (Colo. 2004). A trial court

abuses its discretion if its decision is manifestly unreasonable, arbitrary, or unfair, see

People v. Lee, 18 P.3d 192, 196 (Colo. 2001), or “if it based its ruling on an erroneous

view of the law or on a clearly erroneous assessment of the evidence,” Wadle, 97 P.3d at

936.

¶20    “In ruling on a motion for new trial . . . trial courts are regularly called upon to

resolve questions of fact and apply standards of law.” Id. A Brady claim presents such

a mixed question of law and fact. Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 827

(10th Cir. 1995); see also Salazar v. People, 870 P.2d 1215, 1224 (Colo. 1994) (resolving a

Rule 16 claim against the backdrop of Brady). When reviewing a mixed question of law

and fact, this court reviews the trial court’s findings of fact for clear error and its

conclusions of law de novo. People v. Arapu, 2012 CO 42, ¶ 17, 283 P.3d 680, 684. A

trial court clearly errs if its finding is without support in the record. See id. at ¶ 46, 283

P.3d at 689.

                      III. Crim. P. 33(c) Motions for New Trial

¶21    We must first resolve whether Bueno timely filed his motion under Rule 33(c).

This issue presents a specific question: Whether the phrase “entry of judgment” in Rule




                                              10
33(c) encompasses a verdict or finding of guilt alone, or whether judgment does not

enter until imposition of a sentence.

¶22       Rule 33(c) affords criminal defendants the opportunity to move for a new trial

“in the interest of justice” if (1) the defendant produces newly discovered evidence, or

(2) for some other reason the defendant believes a new trial is warranted. Crim. P.

33(c). The rule sets forth separate timelines for each type of motion:

         Motions predicated on newly discovered evidence “shall be filed as soon after

          entry of judgment as the facts supporting it become known to the defendant.”

         Alternatively, “[a] motion for a new trial other than on the ground of newly

          discovered evidence shall be filed within 14 days after verdict or finding of guilt

          or within such additional time as the court may fix during the 14-day period.”

Id. (emphases added).

¶23       Thus, by Rule 33(c)’s plain language, “entry of judgment,” which triggers the

timing for a motion based on newly discovered evidence, is different from a “verdict or

finding of guilt,” which triggers the timing for a motion based on another ground.

Recognizing this textual distinction, the division below persuasively reasoned that the

two different phrases must have different meanings. Bueno, ¶ 21 (citing Carlson v.

Ferris, 85 P.3d 504, 509 (Colo. 2003) (articulating this interpretive canon)). We agree.

Because Rule 33(c) creates two distinct timing mechanisms—one that begins running

after “entry of judgment” and the other that begins running after “verdict or finding of

guilt”—the phrase “entry of judgment” must refer to more than a verdict or finding of

guilt.


                                              11
¶24    In other words, “entry of judgment” must be more than a “verdict or finding of

guilt” alone. Otherwise, the rule would have used a “verdict or finding of guilt” to

trigger the timing for both types of motions. We therefore decline to adopt the People’s

argument that entry of judgment occurs when the court accepts the jury’s verdict,

because to do so would render the difference between the terms meaningless. See

Pineda-Liberato v. People, 2017 CO 95, ¶ 39, 403 P.3d 160, 166 (noting that we do not

“interpret statutory provisions so as to render any of their words or phrases

meaningless”).7 Thus, we hold that “entry of judgment” for purposes of Rule 33(c) does

not occur until both a verdict or finding of guilt and the imposition of a sentence.

¶25    Applying this holding here, we conclude that Bueno’s motion for a new trial was

not time-barred. Bueno has not yet been sentenced; therefore, he filed his motion based

on newly discovered evidence before entry of judgment. As such, Bueno filed his

motion ahead of the deadline Rule 33(c) prescribes.

¶26    Accordingly, we conclude that Bueno’s motion was timely filed.              Having

determined that Bueno timely filed his Rule 33(c) motion, we turn to the merits of his

Brady claim.




7 Adopting the People’s argument would also contradict our previous explanation that
“judgment” means more than just a verdict or finding of guilt: “The judgment in a
criminal case includes imposition of the sentence.” People v. Campbell, 738 P.2d 1179,
1181 (Colo. 1987) (relying on the definition of “judgment” in Crim. P. 32(b)(3) to
construe Crim. P. 35), superseded by statute on other grounds, § 16-12-102, C.R.S.
(2017), as recognized in People v. Blagg, 2015 CO 2, ¶ 14, 340 P.3d 1137, 1141.


                                            12
                                 IV. The Brady Claim

                                           A. Law

¶27      The U.S. and Colorado Constitutions guarantee a defendant due process of law.

U.S. Const. amends. V, XIV; Colo. Const. art. 2, § 25. When, in a criminal trial, the

prosecution suppresses “evidence favorable to an accused . . . where the evidence is

material either to guilt or to punishment,” that suppression violates the constitutional

guarantees of due process. Brady, 373 U.S. at 87.

¶28      Rule 16(I)(a)(2) codifies Brady’s constitutional disclosure requirement.      See

People v. Dist. Court, 790 P.2d 332, 337 (Colo. 1990) (“[Rule 16(I)(a)(2)] is grounded in

the due process requirements identified by the United States Supreme Court in

[Brady].”). Specifically, Rule 16(I)(a)(2) requires prosecutors to “disclose to the defense

any material or information within his or her possession or control which tends to

negate the guilt of the accused as to the offense charged or would tend to reduce the

punishment therefor.” We have consistently interpreted this disclosure requirement

against the backdrop of Brady jurisprudence. See, e.g., In re Attorney C, 47 P.3d 1167,

1170–71 (Colo. 2002) (“Hence, the materiality standard of Brady . . . applies to Rule 16

disclosures in Colorado.”). Thus, we evaluate the People’s appeal through the lens of

Brady.

¶29      A Brady claim requires a defendant to show that (1) the prosecution suppressed

evidence (2) that is exculpatory or favorable to the defendant and (3) that is material to

the case. People v. Pope, 724 P.2d 1323, 1325 (Colo. 1986).




                                            13
¶30    First, suppression for Brady purposes occurs where prosecutors fail to disclose

material and exculpatory evidence to the defense.8 Smith, 50 F.3d at 824. The U.S.

Supreme Court has held that the prosecution’s disclosure requirement exists

independent of a request for such evidence from the defense. United States v. Agurs,

427 U.S. 97, 110–11 (1976), abrogated on other grounds by United States v. Bagley, 473

U.S. 667, 682 (1985); People v. Sheppard, 701 P.2d 49, 51 n.5 (Colo. 1985). The Court has

further clarified that whether the prosecution acts in good or bad faith in failing to

disclose evidence at issue is irrelevant to the Brady inquiry. Kyles v. Whitley, 514 U.S.

419, 432 (1995).

¶31    Second, evidence is exculpatory for Brady purposes if it tends to mitigate the

likelihood of guilt or the severity of the sentence.9 Brady, 373 U.S. at 87–88; see also

Bagley, 473 U.S. at 676 (explaining that the Brady disclosure requirement applies to

evidence useful to a defendant for impeachment purposes).

¶32    And third, evidence is material under the Brady analysis “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.       A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682. The




8 “Suppression” is a legal term that encompasses any failure to disclose evidence,
whether intentional or not, see People v. Sheppard, 701 P.2d 49, 52 (Colo. 1985), and
“irrespective of the good faith or bad faith of the prosecution,” Brady, 373 U.S. at 87.
9As we stated above, suppressed evidence must be exculpatory or favorable to the
defendant. Pope, 724 P.2d at 1325. Because the evidence at issue here is exculpatory in
nature, we focus only on that type of evidence.


                                           14
standard under Brady is not whether each piece of evidence at issue is individually

material, but whether it is material collectively. Kyles, 514 U.S. at 436.

¶33    Having articulated the three elements of a Brady claim, we now examine them in

detail to determine whether the trial court abused its discretion.

                               B. Analysis and Application

                1. Suppression: Failure to Disclose or Make Available

¶34    Rule 16(I) imposes two disclosure requirements on prosecutors. The first is that

they “shall make available” enumerated “material and information which is within

[their] possession or control.” Crim. P. 16(I)(a)(1). The second is that they “shall

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

which tends to negate” the defendant’s guilt or reduce his punishment.          Crim. P.

16(I)(a)(2).

¶35    The People argue that the government made the evidence at issue here available

to Bueno’s attorneys before the trial; specifically, the People point to the time when the

defense team gained access to the LCF incident report files. Bueno’s team was given

access to files at LCF almost a year ahead of Bueno’s trial, and these files contained the

evidence at issue.     Thus, the People argue that had Bueno’s attorneys exercised

reasonable diligence, they would have found the Deatrich and Smelser Reports,

meaning that the People satisfied Rule 16 and did not violate Brady.

¶36    In making this argument, the People assert that the court of appeals erred in

concluding that the phrase “shall disclose” in Rule 16(I)(a)(2) must mean “something

more than making information ‘available’ under Crim. P. 16(I)(a)(1),” Bueno, ¶ 16, or,


                                             15
stated differently, that the court erred in holding that Rule 16(I)(a)(2) requires the

prosecution to affirmatively disclose material, exculpatory evidence. Rather, the People

argue, Rule 16’s commands to disclose evidence and to make it available are

coextensive. We need not resolve the difference between the meaning of these terms

because we conclude on the facts here that the prosecution neither disclosed nor made

the evidence at issue available, and thus, the record supports the trial court’s finding

that the prosecution suppressed the Deatrich and Smelser Reports for Brady purposes.

¶37   As to the issue of disclosure, the trial court’s findings support, and the People do

not dispute, that the prosecution failed to provide copies of the Deatrich and Smelser

Reports to Bueno. Indeed, the trial court found that the prosecution possessed the two

reports “near the very beginning of the investigation” and did not give it to Bueno until

“some fifteen (15) months after the guilty verdicts.” The trial court also found that the

prosecution had “made the conscious decision this information was not to be included

in discovery” and had “segregated [the evidence] from the balance of the

[prosecution’s] working file.” The record supports these findings. The investigators

looking into Heird’s murder received a packet with the Deatrich Report shortly after

their arrival at LCF, and Watson had received a copy of the report by the time he left the

next day. Smelser gave his report to those same investigators within days of Heird’s

murder. And the prosecution, despite its immediate recognition that these reports were

relevant to the investigation, segregated them from the prosecution’s working file and

did not provide them to Bueno’s defense team.         Based on these record-supported

findings, we conclude that the prosecution failed to disclose this evidence.


                                            16
¶38    We next turn to the People’s contention that they made the evidence available for

Rule 16’s purposes by allowing the defense access to the LCF files. The People urge us

to follow several federal circuit decisions holding that where evidence is otherwise

available through reasonable diligence by the defendant, that evidence is not

suppressed under Brady. See Dennis v. Sec’y, Pa. Dep’t of Corr., 777 F.3d 642, 653–55

(3d Cir. 2015), rev’d en banc, 834 F.3d 263 (3d Cir. 2016); United States v. Pelullo, 399

F.3d 197, 212, 213 n.16 (3d Cir. 2005); United States v. Gonzales, 319 F.3d 291, 297 (7th

Cir. 2003); United States v. Mulderig, 120 F.3d 534, 541 (5th Cir. 1997); United States v.

Wilson, 901 F.2d 378, 381 (4th Cir. 1990). Here, the People contend, the government’s

permission to let Bueno conduct a search through the LCF incident report files satisfies

Brady’s disclosure requirements because the evidence was available to Bueno eight

months before his trial began, and he should have located the relevant reports through

reasonable diligence.

¶39    The Supreme Court has at least twice rejected arguments similar to the People’s

assertion that the defense must make reasonable efforts to locate Brady materials. In

Strickler v. Greene, 527 U.S. 263, 283–85 (1999), the Court rejected the State’s contention

that the defendant should have been alerted to a witness’s undisclosed police

interviews by her trial testimony and a letter she had published in a newspaper. The

Court concluded that because the prosecution suppressed documentary evidence of the

interviews despite its supposed open-file policy, the defense reasonably relied on “not

just the presumption that the prosecutor would fully perform” his disclosure duty, “but

also the implicit representation that such materials would be included in the open files


                                            17
tendered to defense counsel.” Id. at 284. The Court further noted that the State’s

representation that it had fully disclosed all Brady materials meant the defendant

reasonably believed that the State had complied with Brady. Id. at 287.

¶40   The Court affirmed the notion that the defense need not search for a needle in a

haystack in Banks v. Dretke, 540 U.S. 668 (2004). There, it rejected the State’s argument

that the defendant would have discovered evidence to impeach a key witness had he

sought to interview the witness or the investigating officers.     Id. at 695–96.   That

argument, the Court reasoned, was inconsistent with its Brady precedent, which

“lend[s] no support to the notion that defendants must scavenge for hints of

undisclosed Brady material when the prosecution represents that all such material has

been disclosed.” Id. at 695. “A rule thus declaring ‘prosecutor may hide, defendant

must seek,’” the Court further reasoned, “is not tenable in a system constitutionally

bound to accord defendants due process.” Id. at 696.

¶41   Besides, even if we were to apply a reasonable diligence requirement, it would

not avail the People here. As reflected in the record, for several reasons, the defense

team’s reasonable diligence would not have led to its discovery of the reports. First, by

the time Bueno’s team searched the LCF incident report files, the prosecution had

repeatedly affirmed that it had already disclosed all Brady evidence. See Strickler, 527

U.S. at 287 (justifying the defendant’s reliance on the State’s Brady-compliance with the

State’s assertion that it had fully disclosed everything known to it).      Second, the

prosecution asserted that the LCF reports were irrelevant to the case. See Pelullo, 399

F.3d at 213 (“[D]efense counsel’s knowledge of, and access to, evidence may be


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effectively nullified when a prosecutor misleads the defense into believing the evidence

will not be favorable to the defendant.”). Third, the LCF files that Bueno’s defense team

reviewed were voluminous, containing 9,600 incident reports.10 Finally, Bueno’s team

was not looking for these reports—or even these types of reports—when it searched the

LCF files. Rather, it was collecting all incident reports involving the use or possession

of shanks in the prison. Yet neither report at issue contained any references to shanks

or stabbings. The reports, one of which detailed a threat on inmates’ lives and the other

a death caused by chest trauma, would therefore not fall within the scope of the Bueno

defense team’s search. Hence, under these facts, and consistent with the trial court’s

finding that the prosecution failed to comply with Rule 16, we conclude that the

evidence was not made available to the defense.

¶42   Thus, because the trial court correctly concluded that the prosecution neither

disclosed this evidence nor made it available to Bueno, we conclude that the

prosecution did not satisfy its Rule 16 obligations and that it instead suppressed this

evidence for Brady purposes.

                                 2. Exculpatory Nature

¶43   The parties do not dispute that this evidence was exculpatory for Brady

purposes. The trial court found that Bueno immediately raised the alternate-suspect

theory of defense, and the evidence at issue here—a note detailing plans by a white



10 Bueno asserted during oral arguments that an average incident report was a few
pages long, meaning that Bueno’s defense team was likely examining approximately
30,000 pages of documents.


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supremacist group to murder other white inmates, when Bueno was charged with

killing a white inmate, and a report from an LCF investigator expressing concern that

Heird’s murder was related to another white inmate’s suspicious and temporally

proximate death—plainly supports that theory of defense. As such, we conclude that

this evidence was indeed exculpatory. The final dispositive issue, then, is whether this

information meets the requirement of materiality under Brady.

                                      3. Materiality11

¶44   The People’s arguments as to materiality distill into two related points: (1) that

the trial court applied the wrong standard for when evidence is material for Brady

purposes; and (2) that, under the correct standard, the evidence here was not material.

Specifically, the People note that evidence is material only if there is a “reasonable

probability” that the verdict would have been different, but that the trial court

concluded only that the results of Bueno’s trial “could” have been different. The People


11 As a preliminary matter, we address the People’s failure to designate the trial court
transcript in the record. Incomplete records make it difficult to complete our appellate
review. This is especially the case with Brady’s materiality inquiry, which requires that
we look de novo at the suppressed evidence and make a judgment about the import of
that evidence relative to the other evidence at trial. Where the other evidence at trial is
overwhelming, even the suppression of highly relevant evidence may not undermine
our confidence in the outcome. Conversely, confidence in a verdict obtained on
underwhelming evidence is more easily shaken. Because the People asked us to resolve
the issue of materiality on appeal to this court, they bore the burden to designate a
record adequate for us to make this comparison, as the then-applicable C.A.R. 10(b)
made clear: “If the appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the appellant shall include
in the record a transcript of all evidence relevant to such finding or conclusion.” We
proceed on the limited record before us, but where adequate comparison is impossible,
we must presume that the trial court’s materiality ruling is correct. See LePage v.
People, 2014 CO 13, ¶ 15, 320 P.3d 348, 351.


                                            20
also fault the trial court for failing to make express findings on how the evidence would

impact Bueno’s alternate-suspect theory and the jury’s verdict.12

¶45    We reject the People’s contention that the trial court employed the wrong

materiality standard. The standard it employed was that the evidence “could have

significantly impacted the outcome of the trial.” The standard we employ, as outlined

above, is that “there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”

Bagley, 473 U.S. at 682. Although the trial court did not use that exact language, we

conclude that the standard it employed is functionally equivalent. Cf. People v. Dist.

Court, 808 P.2d 831, 834 (Colo. 1991) (affirming a trial court’s materiality finding despite

that court’s failure to expressly state and apply the materiality standard). Indeed, the

phrase “could have significantly impacted the outcome of the trial” casts the same

degree of doubt as the phrase “a probability sufficient to undermine confidence in the

outcome.” The trial court therefore applied an appropriate materiality standard.

¶46    Nor do we agree that the trial court erroneously concluded that this evidence

was material.    In support of its conclusion, the trial court explained that the jury

deliberated for four days and reached a verdict only after receiving special instructions


12The People also argue that the trial court erred when it did not address the evidence’s
admissibility in its Brady analysis. But undisclosed evidence need not be admissible to
satisfy Brady; it need merely lead to the possible discovery of other evidence. Cf. Wood
v. Bartholomew, 516 U.S. 1, 6 (1995) (analyzing whether the undisclosed evidence
“might have led [defendant’s] counsel to conduct additional discovery that might have
led to some additional evidence that could have been utilized”).


                                            21
on how to overcome a deadlock. This fact permits a reasonable inference that the jury

debated Bueno’s guilt at length.      Considering that the jury indicated that it was

deadlocked at some point, the suppressed evidence could have impacted its

determination of Bueno’s guilt. This is especially so given the theory of the case that

Bueno’s defense presented.      Specifically, he asserted an alternate-suspect theory of

defense, and the undisclosed evidence pointed to alternate suspects.              While the

evidence in question did not specifically reference the victim, at the very least, it was

relevant to the manner in which the investigation was conducted. Undoubtedly, the

defense would have questioned the investigators in this case on the use (or non-use) of

the reports during the investigation. The scope of the investigation is highly relevant,

as both the Deatrich and Smelser Reports bear directly on the issue of the murderer’s

identity. The prosecution knew this, as it immediately obtained these reports at the

outset of its investigation.    The reports’ potential value to Bueno, therefore, was

significantly greater given their early availability to the prosecution. Importantly, the

trial court judge, who was intimately familiar with all aspects of this case and presided

over it from the beginning, concluded that this evidence could have impacted the

outcome of Bueno’s trial, at the very least, by precluding Bueno from “fully

develop[ing] [his] theory of defense.” That is the very essence of materiality.

¶47    The question of Bueno’s guilt was debated at length by the jury, and there is a

reasonable probability that failing to disclose or make available this evidence—which

was relevant to the central issue in the case—may have affected the verdict. Thus, we

perceive no abuse of discretion in the trial court’s conclusion.


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                      4. Conclusion Regarding the Brady Claim

¶48   In sum, we conclude that the prosecution here suppressed exculpatory and

material evidence, and therefore, that the prosecution violated Brady’s disclosure

requirements. We therefore conclude that the trial court did not abuse its discretion in

granting Bueno’s motion for a new trial, a decision that is supported by the record and

appropriate given the nature of the discovery violation. See Lee, 18 P.3d at 196 (“The

imposition of discovery sanctions generally serves the dual purposes of protecting the

integrity of the truth-finding process and deterring discovery-related misconduct.”).

                                    V. Conclusion

¶49   We hold that “entry of judgment” for purposes of Rule 33 includes both a verdict

or finding of guilt and the imposition of a sentence. Thus, because Bueno filed his Rule

33(c) motion before the trial court imposed a sentence, we conclude that he filed the

motion before entry of judgment and it was therefore not time-barred. On the merits,

we conclude that the trial court applied the proper standards in ruling on Bueno’s

Brady claim, and we perceive no clear error in the trial court’s findings. And like the

trial court, we conclude on the record before us that the prosecution violated Brady’s

disclosure requirements. Ultimately, we conclude that the trial court did not abuse its

discretion in ordering a new trial. Accordingly, we affirm the judgment of the court of

appeals.




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