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.

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.
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

¶ 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 
2

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 
3

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 decisionmaking 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 
4

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 
5

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, 
6

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 
7

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 
8

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.
9

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 
10

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 
11

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. 
12

¶ 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 
13

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”). 
14

¶ 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 
15

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. 
16

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. 
17

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. 
18

¶ 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.