LARAMIE — Albany County District Court Judge Tori Kricken ruled Tuesday that the personnel records of Derek Colling, the sheriff’s deputy who fatally shot a Laramie man in November, cannot be subpoenaed as evidence by a defense attorney in a local felony prosecution.
Laramie attorney Cole Sherard, who represents an Albany County ranch manager charged with aggravated assault and battery, had subpoenaed both Albany County and Laramie governments for the Colling’s records.
Colling was the lead detective for the case’s prosecution and is a likely trial witness if 44-year-old Scott Dunlap's case makes it that far. Sherard accused the controversial detective of conducting an illegal search while investigating Dunlap, the ranch manager for a True Ranches property in northern Albany County who’s charged with aggravated assault and battery.
Before being fired from the Las Vegas Metropolitan Police Department, Colling was involved in two police shootings in Las Vegas. In November, he fatally shot 39-year-old Robbie Ramirez during a traffic stop on East Garfield Street in which Ramirez first tried fleeing the scene and then tried fighting Colling after the deputy unsuccessfully used his taser on the man.
In the wake of the shooting, Colling was moved into a detective position.
Sherard tried to subpoena a “full and complete copy of all records, entire personnel/employment files, including any and all documentation regarding part of current disciplinary action of Derek Colling” for the past decade.
The Wyoming Rules of Criminal Procedure say that “the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation.”
Certain past conduct of a witness can also be explored if it could be relevant to the witness’s “character of truthfulness.”
Those rules also provide for attorneys to issue subpoenas, but a judge can quash such subpoenas if they’re deemed to be “unreasonable or oppressive.”
Sherard had argued that “any evidence discovered that would compromise the deputy’s credibility or competency would have a direct impact on the validity of this investigation including witness interviews, tests, analysis, observations conducted, determinations made and the relevancy of evidence gathered.”
In choosing to quash the subpoenas, Kricken knocked that argument by Sherard, calling it “conclusory” and saying Sherard “neglects to explain how” his credibility would have a “direct impact” on the validity of that evidence.
A 1951 U.S. Supreme Court case, cited by Kricken, puts a burden on attorneys issuing subpoenas to “show that the documents are evidentiary and relevant” and are not part of a “fishing expedition.”
“This is not a case where Mr. Dunlap asserts that Deputy Colling used any force against him such that discovery of prior investigations or claims of excessive force would be material and relevant,” Kricken said. “Nor is there any assertion that Deputy Colling is the sole witness to a crime to the extent that his credibility is of crucial importance to Mr. Dunlap’s defense.”
Dunlap was charged for hitting a trespassing turkey hunter in the head with a shovel at the Double 4 Ranch on April 24. The victim was knocked unconscious and received eight stitches at Ivinson Memorial Hospital.
According to court records, Dunlap intends to argue he acted in self-defense.
The day after the attack, Colling and another deputy came to the ranch to question Dunlap.
According to court filings, Colling lied and said he was investigating a trespassing case — he made no mention of the alleged assault.
The detective then took the shovel from the property without a warrant. Dunlap’s wife claims her consent was coerced by a threat made by the deputies — that they might tow Dunlap's pick-up from the property if consent was not given.
In quashing Sherard’s subpoenas, Kricken downplayed those allegations in her Tuesday ruling.
“In fact, the only allegation by Mr. Dunlap of 'wrongdoing' in any of the pleadings before the court is presented in Mr. Dunlap’s motion to suppress in which Mr. Dunlap takes issue with deputies Colling and Gladney explaining to Ms. Dunlap that they were investigation an alleged trespass but not also explaining that they were investigating an alleged assault/battery,” Kricken wrote in her Tuesday ruling, ignoring the allegation of an illegal search that’s the basis for a scheduled November hearing in the case on Sherard’s motion to suppress.
Sherard had tried to subpoena Sheriff Dave O’Malley, Laramie Chief of Police Dale Stalder and the city of Laramie’s attorney, Bob Southard, to have the three men turn over personnel files for Colling.
Kricken’s ruling came after the Albany County Attorney’s Office, which has responsibility for prosecuting Dunlap, asked those subpoenas to be quashed, calling the defense counsel’s request “a fishing expedition.”
Kricken agreed with that characterization and said Sherard had not showed his subpoenas were anything more than “an overall attempt to disparage” Colling.
“The news reports that Deputy Colling was terminated from employment with Las Vegas Metropolitan Police Department for ‘rules violations’ or that he was terminated from the city of Laramie’s special response team because he ‘could not be controlled’ are nothing more than conjecture and speculation and, even if true, are not at all relevant to this proceedings,” Kricken wrote.
In recent decades, the personnel histories of police officers have become an increasing point of concern for prosecutors nationwide.
At a hearing over the matter last week, Albany County Attorney Peggy Trent said she worried that rehashing Colling’s past during Dunlap’s prosecution would create a “trial within a trial” that would merely confuse jurors.
In some jurisdictions, prosecutors keep a list of officers with credibility issues. Those sorts of lists are often known as Brady lists, named after the 1963 U.S. Supreme Court case Brady v. Maryland, in which the justices ruled prosecutors must turn over to defense counsel any evidence that might exonerate a defendant.
Since 1996, the Department of Justice has maintained its “Giglio policy,” named after the 1972 U.S. Supreme Court case Giglio v. U.S., in which the justices ruled that juries should be made aware of significant character issues of a witnesses that could reflect on their credibility.
The Giglio policy requires federal law enforcement to disclose to prosecutors any evidence that might impeach the credibility of an officer.