     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
                                                            February 7, 2019

                                2019COA17

No. 16CA2198, People v. Burlingame — Constitutional Law —
Due Process; Criminal Law — Outrageous Government Conduct

     A division of the court of appeals concludes that the trial

court’s factual findings do not support a finding of outrageous

government conduct. As a result, the division instructs the trial

court to reinstate the charges and remands the case to the trial

court for consideration of the remaining issues. The special

concurrence addresses the question of what should be the correct

standard of review.
COLORADO COURT OF APPEALS                                        2019COA17


Court of Appeals No. 16CA2198
City and County of Denver District Court No. 15CR4899
Honorable Brian R. Whitney, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Jasmine Burlingame,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division IV
                          Opinion by JUDGE NIETO*
                            Hawthorne, J., concurs
                           Tow, J., specially concurs

                               February 7, 2019


Beth McCann, District Attorney, Katherine A. Hansen, Deputy District
Attorney, Denver, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    The People appeal the trial court’s dismissal of charges against

 defendant, Jasmine Burlingame, based on outrageous government

 conduct. We reverse and remand with directions.

                           I.    Background

¶2    Defendant alleged that after a night out drinking with a

 coworker, she went with him to his home. She reported that later

 that evening she was raped by his roommate. She submitted to a

 Sexual Assault Nurse Examiner exam where samples were taken

 from various places on her body. Police investigators contacted the

 coworker and the roommate, both of whom volunteered DNA

 samples which the investigators then compared with the samples

 taken from defendant’s body. The results of the DNA test

 conclusively showed that it could not have been the roommate who

 had sexual contact with defendant, but rather that it was the

 coworker.

¶3    Upon learning this, two prosecutors, an investigator from the

 prosecutor’s office, and a police detective decided to interview

 defendant. Defendant was experiencing car trouble, so they visited

 her at home. They brought a video camera to record the interview

 and set defendant up on a folding chair in the camera’s frame. Out


                                    1
 of the frame sat defendant’s mother, other female friends and

 family, the prosecutors, and the investigators.

¶4    On the video recording, the police detective informed

 defendant that the DNA proved that it was the coworker, not the

 roommate, who had sexual contact with her, contrary to what she

 said had happened. Defendant became visibly upset and began to

 cry. The prosecutors informed her that they would have to drop the

 charges against the man she claimed raped her, and they asked her

 if there was anything else she would like to tell them. Defendant

 made statements such as “I don’t know what to say,” and “I don’t

 understand how that is possible.” She stated that she had blacked

 out a lot of the incident, so her memory was less than clear.

¶5    After several more minutes of discussion, defendant, in tears,

 told the investigators and prosecutors to leave, and they did.

¶6    Prosecutors charged defendant with two counts of attempting

 to influence a public servant and one count of false reporting.

¶7    The trial court held a hearing where defendant argued, as is

 relevant here, that the videotape of the interview should be

 suppressed, and that the case should be dismissed because the

 government’s conduct was outrageous. Defendant had also


                                   2
  subpoenaed one of the prosecutors who was present for the

  interview to testify at the hearing, which the trial court allowed,

  denying the prosecution’s motion to quash the subpoena. During

  the hearing, the prosecutor, invoking the work product privilege,

  objected to evidence that might have shed light on the decision-

  making process that led the district attorney’s office to the decisions

  to interview and file charges against the defendant.

¶8     In an oral ruling, the trial court dismissed the case based on a

  finding of outrageous government conduct. It did not rule on the

  request to suppress the videotape.

                              II.   Analysis

¶9     The People assert on appeal that the trial court erred in

  concluding that there was outrageous government conduct

  warranting dismissal of the charges against defendant. We agree.

¶ 10   Trial courts determine whether there has been outrageous

  government conduct by “reviewing the totality of the facts in a given

  case.” People v. McDowell, 219 P.3d 332, 336 (Colo. App. 2009).

  We review a trial court’s dismissal of a case based on a finding of

  outrageous government conduct for an abuse of discretion. Id. A

  trial court abuses it discretion when its ruling is manifestly


                                     3
  arbitrary or unreasonable. People v. Medina, 51 P.3d 1006, 1011

  (Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d

  973 (Colo. 2003). It is an abuse of discretion if the court

  misinterprets or misapplies the law. People v. Douglas, 2016 COA

  59, ¶ 54.

¶ 11   However, we note that outrageous government conduct has

  always been recognized as a violation of due process. See Bailey v.

  People, 630 P.2d 1062, 1068 (Colo. 1981); McDowell, 219 P.3d at

  336; Medina, 51 P.3d at 1011. We review due process violations de

  novo. See, e.g., Quintano v. People, 105 P.3d 585, 592 (Colo. 2005);

  People in Interest of C.J., 2017 COA 157, ¶ 25. We need not resolve

  this conflict because we conclude the trial court abused its

  discretion.

¶ 12   “Outrageous governmental conduct is conduct that violates

  fundamental fairness and is shocking to the universal sense of

  justice.” Medina, 51 P.3d at 1011. Instances where trial courts

  have found outrageous government conduct in Colorado are

  vanishingly rare, and the threshold for such a finding appears to be

  exceedingly high. In fact, we found only one such case where a

  Colorado appellate court upheld a finding of outrageous government


                                    4
  conduct. People v. Auld, 815 P.2d 956, 959 (Colo. App. 1991)

  (upholding the dismissal of charges based on a finding of

  outrageous government conduct because the prosecution filed fake

  charges against an undercover agent and therefore “dup[ed the]

  court into becoming an accomplice” to their nefarious actions).

¶ 13   We understand the trial court’s ruling to be based on (1) the

  fact that the interview was videotaped; (2) the fact that the

  prosecutors repeatedly used the work product privilege to block any

  evidence showing why they chose to videotape the interview or to

  explain their decision-making process in filing the charges; and

  (3) a violation of the Victim Rights Act, sections 24-4.1-301 to -305,

  C.R.S. 2018. The court’s oral ruling is sparse, and it cites no legal

  authority for support. We conclude that the trial court’s findings of

  fact do not support its conclusion that the government’s conduct

  was outrageous.

¶ 14   First, the trial court did not cite authority or explain why

  videotaping the interview with defendant was improper other than

  the judge’s personal experience and his conclusion, without

  evidentiary support, that this was an extraordinary and

  unprecedented action by the police and the prosecutors. However,


                                     5
  given the state’s authority to investigate suspected criminal

  conduct, we fail to see how this fact alone can constitute

  outrageous conduct. See Medina, 51 P.3d at 1012.

¶ 15   Second, the prosecution’s persistent, but largely proper, use of

  the work product privilege cannot form a basis for a finding of

  outrageous governmental conduct no matter how frustrating it may

  have been to the trial court. The trial court could and did use the

  lack of evidence caused by the objections to find that the state’s

  sole purpose in videotaping the interview was to collect evidence

  against the defendant. But, as the trial court recognized, the

  objections were largely proper, and again we fail to see how making

  a proper objection to questions can constitute outrageous conduct.

¶ 16   Third, the trial court found a violation of the Victim Rights Act

  without identifying the specific section violated. We presume the

  finding relates to section 24-4.1-302.5(1)(a), C.R.S. 2018, which

  states that victims have “[t]he right to be treated with fairness,

  respect, and dignity, and to be free from intimidation, harassment,

  or abuse, throughout the criminal justice process.” However, the

  videotape shows that during the interview the defendant was

  treated with respect and was not harassed or abused. The large


                                     6
  police presence might have been intimidating, but that was

  mitigated by the respectful treatment and the interview taking place

  in the defendant’s home with her family and friends present. In any

  event, under the circumstances shown by this record, this was at

  most a procedural violation that cannot support a finding of

  outrageous conduct. See McDowell, 219 P.3d at 336 (intentionally

  withholding Miranda warnings to obtain statements and then giving

  the warnings and repeating the questions did not constitute

  outrageous conduct); Medina, 51 P.3d at 1012 (egregious violations

  of a defendant’s Fifth Amendment rights did not constitute

  outrageous conduct).

¶ 17   Finally, even considered together, these circumstances cannot

  be fairly said to “violate[] fundamental fairness” or to be “shocking

  to the universal sense of justice.” Medina, 51 P.3d at 1011.

  Because the trial court’s findings of fact are not supported by the

  record, we conclude they were arbitrary and thus an abuse of

  discretion.

¶ 18   At the heart of our decision is our conclusion that while the

  government’s behavior might be considered poor judgment or even




                                     7
  legal error, the conduct did not rise to the level of outrageous

  governmental conduct.

¶ 19   Therefore, we reverse the district court’s order dismissing the

  case and remand with directions to reinstate the charges and to

  consider the motions still pending before it, including whether the

  interview should be suppressed because the totality of the

  circumstances surrounding it constituted psychological coercion.

       JUDGE HAWTHORNE concurs.

       JUDGE TOW specially concurs.




                                     8
  JUDGE TOW, specially concurring.

¶ 20   I agree with my colleagues that the district court here abused

  its discretion in finding that the government’s conduct in this case

  violated defendant’s due process rights, and thus erred in

  dismissing the charges. However, I write separately to urge the

  Colorado Supreme Court to revisit the standard of review in such

  cases.

¶ 21   The Colorado Supreme Court first acknowledged the concept

  of outrageous government conduct in People v. Vandiver, 191 Colo.

  263, 552 P.2d 6 (1976). There, in addressing the defense of

  entrapment, the court observed that “[a]bsent outrageous conduct

  by the officers violating fundamental standards of due process, the

  focus remains on the defendant.” Id. at 268, 552 P.2d at 9. Five

  years later, the supreme court went a bit further and appeared to

  accept at least the possibility that outrageous government conduct

  may be a defense to a criminal prosecution in certain

  circumstances. See Bailey v. People, 630 P.2d 1062, 1068 (Colo.

  1981) (noting the consistency between the above-quoted statement

  in Vandiver and Justice Powell’s concurring opinion in Hampton v.

  United States, 425 U.S. 484, 495 (1976), “in which he refused to


                                    9
  join the plurality in declaring that ‘no matter what the

  circumstances, neither due process principles nor our supervisory

  power could support a bar to conviction in any case where the

  Government is able to prove predisposition’”).

¶ 22   In People in Interest of M.N., 761 P.2d 1124 (Colo. 1988), the

  supreme court reviewed a trial court’s application of this defense.

  In M.N., the trial court had dismissed three juvenile delinquency

  petitions after finding that an undercover police officer had induced

  the minors to commit the charged crimes, and that the officer’s

  actions constituted outrageous government conduct that deprived

  the juvenile of due process. Id. at 1127. A plurality of the supreme

  court said that “[t]he question whether circumstances are

  demonstrated which would bar prosecution under due process

  principles is for the court.” Id. at 1129 (quoting United States v.

  Szycher, 585 F.2d 443, 445 (10th Cir. 1978)). The plurality

  continued, “[t]he district court was therefore acting within its

  discretion when it ruled on the outrageous governmental conduct

  issue.” Id. Noting that it was “clear that the district court erred in

  holding that the testimony at the hearing established that the

  defendant had made a showing of outrageous governmental


                                    10
  conduct,” the plurality held “that the district court’s holding as a

  matter of the law that the charges must be dismissed as a result of

  due process violations arising from outrageous governmental

  conduct was erroneous and constituted an abuse of discretion.” Id.

  at 1129-30.

¶ 23   Divisions of this court have applied the abuse of discretion

  standard announced in M.N. See People v. McDowell, 219 P.3d 332,

  336 (Colo. App. 2009); People v. Medina, 51 P.3d 1006, 1011 (Colo.

  App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d 973

  (Colo. 2003).

¶ 24   I believe the language in M.N. establishing the standard of

  review as an abuse of discretion was not supported by the authority

  on which it relied and was (and remains) inconsistent with the

  standard of review of due process claims in every other context.

¶ 25   First, upon close analysis, it is not even clear whether the

  court in M.N. actually reviewed the matter for an abuse of

  discretion. The court did not recite what test is applied to

  determine whether a trial court abuses its discretion. Rather, it

  quickly concluded that the trial court had erred, without applying

  any particular test.


                                    11
¶ 26   Moreover, even if the review conducted in M.N. was for an

  abuse of discretion, there is no clear explanation as to why such

  review would be applicable. In fact, the invocation and application

  of abuse of discretion review was not supported by citation to

  Szycher, or any other case. The court in M.N. correctly quoted the

  Tenth Circuit’s decision in Szycher, which held that the question

  whether due process was violated was “for the court.” 761 P.2d at

  1129 (quoting Szycher, 585 F.2d at 445). But the context of that

  statement in the federal case is informative.

¶ 27   There, the outrageous government conduct claim was closely

  intertwined with an entrapment defense. Szycher, 585 F.2d at 445.

  The jury had been permitted to consider (and had rejected) the

  entrapment defense, while the court had ruled on the outrageous

  government conduct claim. The Tenth Circuit panel opined that

  “the trial judge was correct in deciding this issue himself. The

  question whether circumstances are demonstrated which would bar

  prosecution under due process principles is for the court.” Id. In

  other words, the Tenth Circuit was addressing whether the trial

  court appropriately removed consideration of this particular defense




                                    12
  from the jury’s purview, not whether the decision by the trial court

  was a discretionary one.

¶ 28   Nor does abuse of discretion review necessarily flow from the

  mere premise that the question is one “for the court.” The

  characterization of an issue as one “for the court” rather than “for

  the jury” generally means it is not a factual but rather a legal

  determination. An appellate court generally reviews a trial court’s

  legal conclusions de novo. See, e.g., Westin Operator, LLC v. Groh,

  2015 CO 25, ¶¶ 18-19 (reviewing de novo a trial court’s ruling

  granting summary judgment on the legal question of whether there

  was a duty); Peper v. St. Mary’s Hosp. & Med. Ctr., 207 P.3d 881,

  888 (Colo. App. 2008) (observing that immunity “is a question of

  law for the court to decide” and applying de novo review) (citation

  omitted); Boulder Plaza Residential, LLC v. Summit Flooring, LLC,

  198 P.3d 1217, 1220 (Colo. App. 2008) (applying de novo review to

  the construction of a contract, which “is a question of law for the

  court”); Bd. of Cty. Comm’rs v. City of Aurora, 62 P.3d 1049, 1053

  (Colo. App. 2002) (noting that interpretation of the Municipal

  Annexation Act “is a question of law for the court to decide, and our

  review is therefore de novo”).


                                    13
¶ 29   Indeed, had the supreme court looked to the federal courts for

  guidance on the standard of review, it would not have found any

  support for applying an abuse of discretion review. I could find no

  cases that had been decided when M.N. was announced applying an

  abuse of discretion review; to the contrary, those cases that had

  stated a standard of review had reviewed the matter de novo. See,

  e.g., United States v. Citro, 842 F.2d 1149, 1152 (9th Cir. 1988);

  United States v. Valona, 834 F.2d 1334, 1343 (7th Cir. 1987).

¶ 30   In the intervening years, the Tenth Circuit has clearly said

  that outrageous government conduct claims are reviewed de novo.

  United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). In

  doing so, the trial court’s factual findings are reviewed under the

  clearly erroneous standard. United States v. McKissick, 204 F.3d

  1282, 1295 (10th Cir. 2000). In other words, these rulings are

  reviewed as mixed questions of law and fact.

¶ 31   As for state courts, none aside from the Colorado Supreme

  Court has clearly established abuse of discretion as the standard of

  review in this area. Indeed, the California Court of Appeals is the

  only other state court that employs abuse of discretion review in

  this area, and that judicial body has a split of authority on the


                                    14
  point. Compare People v. Uribe, 132 Cal. Rptr. 3d 102, 120-21 (Cal.

  Ct. App. 2011) (reviewing de novo), with People v. Velasco-Palacios,

  185 Cal. Rptr. 3d 286, 290 (Cal. Ct. App. 2015) (reviewing for an

  abuse of discretion). Of the other states that have considered the

  issue, many take the same approach as the federal courts,

  reviewing it as a mixed question of law and fact. See State v.

  Williamson, 343 P.3d 1, 6 (Ariz. Ct. App. 2015); State v. Simmons,

  364 S.W.3d 741, 745 (Mo. Ct. App. 2012); State v. Laurence, 848

  A.2d 238, 250 (R.I. 2004); State v. Valentine, 935 P.2d 1294, 1305

  (Wash. 1997); State v. Houston, 475 S.E.2d 307, 321 (W. Va. 1996).

  Other states have held that the ultimate question of whether

  government conduct violated a defendant’s right to due process is

  reviewed de novo, without mention of any deferential review of the

  trial court’s factual findings. See Todd v. State, 425 S.W.3d 25, 32

  (Ark. Ct. App. 2012); State v. Nelson, 822 P.2d 53, 56 (Kan. 1991);

  State v. Fitzpatrick, 291 P.3d 1106, 1109 (Mont. 2012); State v.

  Hoverson, 710 N.W.2d 890, 895 (N.D. 2006); State v. Hudson, 2012

  WI App 118, ¶ 8.

¶ 32   Even within Colorado, abuse of discretion review is generally

  not the applicable standard in areas of constitutional inquiry.


                                   15
  Rather, Colorado’s appellate courts apply the “mixed question of law

  and fact” in such scenarios. For example, “[w]e defer to a trial

  court’s findings of credibility and historical facts so long as they are

  supported by the record. But we review de novo the legal

  determination of whether an individual is in custody for Miranda

  purposes.” People v. Sampson, 2017 CO 100, ¶ 16 (citation

  omitted). The same standard is used when reviewing “whether a

  seizure violated constitutional prohibitions against unreasonable

  searches and seizures.” People v. Funez-Palagua, 2012 CO 37, ¶ 6.

  And the “mixed question of law and fact” review standard has been

  applied in a different due process context. Bernal v. People, 44 P.3d

  184, 206-07 (Colo. 2002) (reviewing whether a pretrial identification

  procedure violated the defendant’s right to due process by creating

  a very substantial likelihood of misidentification).

¶ 33   In still other due process contexts, our appellate courts have

  reviewed de novo whether a defendant’s right to due process was

  violated. In Quintano v. People, the supreme court reviewed de novo

  whether the defendant’s due process rights were denied when the

  prosecution failed to elect the particular act on which it relied for

  conviction. 105 P.3d 585, 592-93 (Colo. 2005). In People v.


                                     16
  Calderon, a division of this court reviewed de novo a claim that the

  defendant’s due process rights were violated when his probation

  was revoked without his having received notice of the probation

  conditions. 2014 COA 144, ¶ 23. And in People v. Nave, another

  division of this court applied de novo review to the question whether

  the defendant’s due process rights were violated as a result of lost

  or destroyed evidence. 689 P.2d 645, 647 (Colo. App. 1984).

¶ 34   The due process claims in Quintano, Calderon, and Nave

  generally are not the type of claims that will present significant

  factual disputes. Thus, a pure de novo analysis makes sense in

  those circumstances. However, a claim of outrageous government

  conduct will necessarily involve factual findings by the trial court.

  Indeed, the plurality in M.N. observed that such a claim must “be

  tested by an appraisal of the totality of facts in a given case.” 761

  P.2d at 1129 (quoting United States v. Spivey, 508 F.2d 146, 149

  n.2 (10th Cir. 1975)). Consequently, in my view, the appropriate

  standard of review of outrageous government conduct claims is to

  defer to the trial court’s factual findings unless clearly erroneous,

  and then review de novo the ultimate conclusion as to whether the

  defendant’s right to due process was violated.


                                    17
¶ 35   I do not deny that often, as here, one can reach the same

  result after reviewing for an abuse of discretion. Nevertheless,

  applying such a deferential standard of review to an issue of

  constitutional magnitude is an extreme outlier. This anomaly

  engenders confusion and risks creating inconsistencies and

  disparities in our due process jurisprudence. For these reasons, I

  urge the supreme court to look anew at this important question.




                                   18
