Defense attorneys in an Albany County aggravated assault and battery case are using the police record of Derek Colling, the sheriff’s deputy who fatally shot a Laramie man in November, to challenge his credibility as a witness in local prosecutions.
Colling currently works as a detective in the Albany County Sheriff’s Office — a position that gives him the responsibility of investigating and aiding in the prosecution of some serious felonies.
Laramie attorney Cole Sherard, a partner at Pence and Macmillan who’s representing an Albany County ranch hand charged for hitting a trespassing hunter with a shovel, is trying 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, who investigated the aggravated assault case.
The Albany County Attorney’s Office, which has responsibility for prosecuting 44-year-old Scott Dunlap, has asked those subpoenas to be quashed, calling the defense counsel’s request “a fishing expedition.”
The new scrutiny of Colling’s record comes amid the prosecution of Dunlap, the ranch manager at the Double 4 Ranch in northern Albany County. Dunlap has been charged with the felonious assault charge after hitting turkey hunter Matt Allshouse in the head with a shovel during an April 24 incident, when Allshouse allegedly came onto the ranch property to shoot a turkey.
The Double 4 Ranch is owned by a True Ranches, a limited liability company managed by Hank True and his brother Dave, chairman of the University of Wyoming Board of Trustees.
According to the Allshouse, he and his friend had spent two days turkey hunting near Laramie Peak in late April.
When the hunters headed back to town, they spotted turkeys off of Cottonwood Park Road and killed one with a shotgun only after “determining they were on BLM land,” according to an affidavit. Dunlap has been adamant the hunters were on True Ranches property, a fact that seems to be conceded by prosecutors’ filings.
When Allshouse went to grab the turkey, he was confronted by Dunlap upon returning to his truck.
Dunlap reportedly was holding the shovel in “port of arms” position and “yelled at him for trespassing.”
After an “extremely short exchange,” Dunlap hit the hunter in the left temple with a shovel. The attack knocked Allshouse unconscious, left a gash almost two inches long “cut to the bone” above his left eye and a “large amount of swelling.”
The hunter told Colling that when he regained consciousness, he saw the man “briskly walk back to his truck and threw the shovel into the back of his truck and leave the area.”
“The victim said the man never asked him to put his gun down nor gave him any directions before hitting him with the shovel,” Colling’s affidavit states.
Allshouse’s friend said that the attack mimicked a baseball swing and the victim’s gun was “pointed straight up and was not pointed anywhere near Dunlap.”
Allshouse later received eight stitches at Ivinson Memorial Hospital.
When Dunlap was identified as the main suspect, the ranch hand confirmed to the Albany County Sheriff’s Office much of the events as the hunter had attested to. Dunlap confirmed he argued the hunters were on True Ranches property while the two men argued they were on BLM land.
“When asked if he was provoked or threatened by the victim, Dunlap said that the victim had plenty of opportunities to put his gun down and he didn’t do it,” Colling’s affidavit states.
Court filings by Dunlap’s attorney, Cole Sherard, present a different side of the story.
According to those documents, Dunlap approached the hunters to tell them they were trespassing.
“This hunter did not respond, which made Mr. Dunlap feel very uneasy,” Sherard wrote. “As Mr. Dunlap approached Mr. Allshouse, he noticed he had a turkey in his left hand and 12 gauge shotgun in his right hand. Mr. Dunlap began to calmly explain to Mr. Allshouse that he was hunting on private property. Mr. Allshouse incessantly argued that he was on BLM land. As Mr. Allshouse aggressively approached Mr. Dunlap with the shotgun, he felt threatened and struck him in the head with a shovel out of fear that he might get shot.”
In the investigation that followed, Sherard contends that Colling conducted “an illegal search” and seizure of the shovel that prosecutors are likely to use as evidence.
Colling and another deputy came to the ranch the day after the attack.
According to both the prosecution and defense counsel’s accounts, Colling told Dunlap’s wife that he was “investigating a possible trespassing.”
“They did not mention anything about a possible assault,” Sherard said.
Dunlap’s wife showed Colling their five pickups, which all had shovels in them at the time.
“It was at this point that Deputy Colling observed a shovel in the back of a white Dodge pickup truck with a regular bed and confiscated it without a warrant,” Sherard said.
Allshouse and another hunter had given conflicting descriptions to police of the truck Dunlap had been driving. Allshouse told police Dunlap was driving a white Chevy, while another hunter described the pickup as a flatbed.
Dunlap’s wife asked “what happens if I don’t let you take the shovel?,” to which the second deputy “then threatened to seize the entire pickup truck and tow it to Laramie if she would not provide the shovel,” Sherard contends.
“Mrs. Dunlap felt threatened and had no choice but to allow the deputies to take the shovel,” Sherard wrote. “Deputy Colling removed the shovel from the truck, and the deputies ended their conversation, asked Mrs. Dunlap to have Mr. Dunlap call them, and left. At no time did law enforcement have a search warrant to confiscate the shovel or the truck.”
At the end of August, Sherard filed a motion to have Albany County district court Judge Tori Kricken suppress that evidence as a violation of Dunlap’s rights under the U.S. Constitution’s fourth amendment.
At the same time, Sherard asked the district court clerks to issue subpoenas for O’Malley, Southard and Stalder.
From the sheriff’s office, Sherard is trying 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.
Sherard has subpoenaed similar files from the city, seeking “information related to Derek Colling’s employment and termination by the LPD Special Response Team.”
In a Thursday defense of the subpoenas, Sherard noted that Colling “has been the subject and/or accused of numerous allegations of police misconduct in multiple jurisdictions” and that it’s necessary to “investigate the deputy’s background to discover what, if any, impact these allegations may have on his credibility, competency and character as a witness pursuant to the Wyoming Rules of Evidence.”
Those rules 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.”
Colling was fired from the Las Vegas Metropolitan Police Department in 2011 after an investigation that stemmed from Colling beating a videographer.
“Internal investigators concluded in July (2011) that Colling … violated several Metropolitan Police Department policies,” the Las Vegas Review-Journal reported in 2011.
The Las Vegas police department did not publicize which specific policies Colling was guilty of violating.
Sherard cited Colling’s history in Las Vegas, as well as the Nov. 4 shooting death of Robbie Ramirez in Laramie, as evidence of a need to delve into Colling’s records.
In recent decades, the personnel histories of police officers have become an increasing point of concern for prosecutors.
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.
In New Hampshire, there’s been considerable political conflict in recent years over the public’s right of access to the state’s “Laurie List,” a prosecutorial list of hundreds of New Hampshire officers with credibility issues.
In July, a judge ruled that New Hampshire’s Laurie List does not qualify for confidentiality protections under state law and are subject to disclosure, according to the New Hampshire Union Leader.
Kricken has set a Nov. 4 hearing to consider both whether Sherard’s subpoenas for Colling’s records should be quashed. The judge is also set hearing to consider at that hearing the issue of whether the shovel Colling took from the ranch can be used as evidence.
In 2005, the Wyoming Supreme Court created, in Rideout v. State, a list of seven circumstances that merit a warrantless search or seizure.
In Dunlap’s case, prosecutors are arguing Colling met two of those circumstances: “a search which results when an object is inadvertently in the plain view of police officers while they are where they have a right to be” and “a search and/or seizure conducted pursuant to consent.”
Sherard argued Colling didn’t truly have the consent of Dunlap’s wife because it was coerced by the threat of towing her truck.
The defense attorney also argues Colling did not have a right to be where he “inadvertently” saw the shovel because he was only shown the trucks because he lied and said he was investigating a trespassing, not an assault.
Prosecutor Ben Harwich argued in a Sept. 17 court filing that the shovel should be admissible evidence, in part because Colling’s “use of deception in order to gain lawful positions is not dispositive of a search not being consensual,” though he acknowledges it’s a factor courts can use to determine a search in nonconsensual.
Nor does the deputies’ threat of towing the vehicle constitute coercion, Harwich argues.
The prosecutor points to the 2014 Wyoming Supreme Court decision of State v. Incenhower, in which supreme court justices determined that “when a law enforcement officer tells a suspect that he intends to do something that he is legally authorized to do under the circumstances, his conduct is not misleading and does not amount to tricky.
“The officer instead just correctly informs the individual of his legal situation,” the supreme court ruled.
And while the pickup that Colling grabbed the shovel from might not have perfectly matched the description given by the hunters, Harwich contends that Colling had plenty of probable cause to assume it was the right shovel.
For example, the pickup Colling took the shovel from bore a “1-6907” license plate, and Allshouse told police that Dunlap’s pickup had a license plate number of either 1-6907 or 1-6901.