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People v. Palomo9/10/2001
RULE MADE ABSOLUTE
EN BANC
In this original proceeding pursuant to C.A.R. 21, we determine whether the district court properly exercised its discretion by granting the defendant's motion to recuse the Thirteenth Judicial District Attorney's Office (district attorney) and the Capital Crimes Unit of the Colorado Attorney General's Office (Capital Crimes Unit) from further participation in this case after finding an appearance of impropriety. We issued a rule directing the respondent, Cruz Palomo, to show cause why the district attorney and Capital Crimes Unit, should not be permitted to prosecute a criminal case against Palomo. We now make that rule absolute and conclude that the trial court had insufficient grounds for disqualification of the district attorney and the Capital Crimes Unit.
Specifically, we disagree that the files of Palomo contained medical records as described in the statute prohibiting the theft of medical records, and therefore infer no potentially criminal wrongdoing either of the personnel director or the district attorney's office as to those files. An employer's personnel records of employee drug tests and physical ability tests that are required as conditions of employment are not medical records for purposes of the theft statute. Further, the defendant has no standing to raise any privilege with respect to the personnel files of the victim, Flora Padilla. However, should the trial court sua sponte find impropriety by the personnel director or the district attorney's investigator in releasing those records, the court should consider appointment of a special prosecutor to pursue the theft charge and to determine the appropriateness of an offer of immunity to the personnel director and should also consider exclusion or limitation of the evidence at trial.
I.
This case arises out of the prosecution of Cruz Palomo (Palomo) for the murder of Flora Padilla (Padilla). Palomo and Padilla had worked together at the Excel Corporation meat packing plant in Fort Morgan, Colorado. Excel eventually fired Palomo. On the day of the murder, investigators from the district attorney's office and the Capital Crimes Unit spoke with Excel's assistant personnel manager to determine if he knew anything about, or had any records concerning, interactions between Palomo and Padilla.
During the conversation, the investigators asked for copies of Palomo's and Padilla's personnel files. The investigators told the personnel manager that if necessary, they could seek a subpoena or a search warrant for the files. The investigators testified at the hearing on the defense motion to disqualify the district attorney's office that they told the personnel manager that they did not want any medical or psychological files concerning Palomo or Padilla.
After conferring with Excel's corporate counsel, the personnel manager informed the investigators that Excel needed a written request for the records from the district attorney's office. The investigators provided a written request and the personnel manager released Palomo's and Padilla's personnel files. The investigators then had the files copied for discovery purposes, and provided copies to defense counsel.
Contrary to the investigators' professed directions to delete any documents that might relate to medical or psychological issues, both files did contain the results of employment-required drug screening and physical ability tests. Padilla's personnel file also contained routine medical test results associated with work-related injuries and with a workers' compensation disability claim.
Once the district attorney filed first degree murder charges against Pal
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