J.S. v. Chambers

• Decision Date: 17 September 2009
• Docket Number: No. 09CA1396.,09CA1396.
• Citation: 226 P.3d 1193
• Parties: J.S., an individual, Petitioner-Appellee, v. Carol CHAMBERS, District Attorney, Eighteenth Judicial District, Respondent-Appellant.
• Court: Colorado Court of Appeals

226 P.3d 1193

J.S., an individual, Petitioner-Appellee, v. Carol CHAMBERS, District Attorney, Eighteenth Judicial District, Respondent-Appellant.

No. 09CA1396.

Colorado Court of Appeals, Div. A.

September 17, 2009.

As Modified on Denial of Rehearing October 22, 2009.

Hutchinson Black and Cook, LLC, Baine P. Kerr, Boulder, Colorado, for Petitioner-Appellee.

Carol Chambers, District Attorney, Andrew Cooper, Senior Deputy District Attorney, Centennial, Colorado, for Respondent-Appellant.

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Catherine P. Adkisson, Assistant Solicitor General, Denver, Colorado, for Amicus Curiae the State of Colorado.

Molly Chilson, Deputy District Attorney, Salida, Colorado; Ted C. Tow III, Denver, Colorado, for Amicus Curiae Colorado District Attorneys' Council.

Opinion by Judge WEBB.

Although a district attorney has broad discretion in determining what offenses to prosecute, by statute a judge may either order the district attorney to prosecute a case or appoint a special prosecutor to do so, upon finding that the refusal to prosecute was "arbitrary or capricious and without reasonable excuse." § 16-5-209, C.R.S.2008. Here, because we conclude that this high standard has not been met by clear and convincing evidence, the district court's order appointing a special prosecutor must be reversed.

I. Summary

Petitioner, J.S., asserted that in 2000 she had been the victim of two sexual assaults committed within Arapahoe County. The Arapahoe County District Attorney's Office declined to prosecute in 2001, when J.S. indicated that she did not wish to proceed; again in 2004, although J.S. by then had agreed to cooperate; and in 2007, despite communications from J.S.'s attorney.

In 2008, J.S. commenced this action for appointment of a special prosecutor. Respondent, Carol Chambers, who had become the District Attorney in 2005, opposed the petition. After holding an evidentiary hearing, the district court concluded that the likelihood of obtaining convictions was "great," ordered that "charges must be filed" against both suspects, and later appointed the Boulder County District Attorney as special prosecutor.

We do not consider the district court's conclusion on prosecutability dispositive, even if it is correct. Rather, because prosecutorial discretion means that a district attorney need not charge in every prosecutable case, we address whether Chambers' asserted reasons for not prosecuting are supported by some competent evidence, are based on proper factors bearing on prosecutorial discretion, and are not overwhelmed by countervailing proper factors.

Based on J.S.'s initial refusal to cooperate, a jury's possible perception of an improper motive by J.S. for changing her position, the passage of time since the alleged offenses, and a 2007 letter to Chambers from the Larimer County District Attorney's Office concluding that "insufficient evidence exists to warrant the filing of criminal charges," we cannot say that clear and convincing evidence showed the refusal to prosecute between 2004 and 2008 was arbitrary or capricious. Therefore, we reverse the district court's orders and remand for dismissal of the petition.

II. Introduction

A. Undisputed Background Facts

During the evening of June 1 and the early morning hours of June 2, 2000, J.S., Riley McMurdo, and Clyde Surrell, all acquaintances who attended the same high school, along with a number of other young people, attended a private graduation party. Alcoholic beverages were plentiful. Most of the witnesses whom the police later interviewed had been drinking, and some of them acknowledged that they were drunk.

J.S. told the officer who took her complaint that after leaving the party, she had fallen asleep in her car while McMurdo was driving it and did not remember anything else until she awoke at approximately 3:00 a.m. She was still in her car, now parked in her garage, and was wearing only a shirt that was different from the one she had worn to the party. Both Surrell and McMurdo described J.S. as intoxicated, which was her recollection. Most other witnesses believed J.S. to have been so intoxicated that she was incapable of consenting to sexual contact.

According to several witnesses, she left the party in a car driven by a friend in which McMurdo and others were passengers. J.S. and McMurdo sat together and some witnesses observed them kissing. Accounts differ as to whether "the kissing was mutual" and whether J.S. "was capable of responding" to the kissing.

J.S. was driven to her car, parked some distance from the party. After she had been helped into her car, McMurdo agreed to drive her home. Instead, he drove to his house. The sexual contact with McMurdo occurred during the drive to his house.

Surrell arrived at McMurdo's house in a car along with others who had left the party, where they encountered McMurdo and J.S. Surrell agreed to drive J.S. to her home in her car. McMurdo joined the others, who were going to get gasoline for Surrell's car and then pick him up at J.S.'s home. The sexual contact with Surrell occurred during the drive to her home.

When Surrell and J.S. reached her home, they encountered McMurdo and the others, who had been waiting there. Two witnesses, in addition to Surrell and McMurdo, observed J.S. either enter her garage or enter her home, unassisted. One witness added that she was "fully clothed." Surrell, McMurdo, and the others left.

After awakening early the next morning, J.S. suspected that she had been sexually assaulted and immediately contacted the Aurora Police Department. J.S. submitted to a medical examination. According to the emergency department report, the examiner observed some minor abrasions that J.S. suspected she had suffered during the assaults, but did not "see any specific evidence of trauma on the pelvic exam." An addendum to the report noted "some mild erythema bilaterally."

The officer then accompanied J.S. to her home to collect physical evidence. The pants that she had worn to the party were found in her bedroom. She could not explain how they got there.

Aurora Detective Ronald Hahn was put in charge of the case. Among many other party-goers, Hahn interviewed McMurdo. He admitted having had intercourse with J.S. after she had performed oral sex on him, but he asserted it had been consensual. A friend of McMurdo's told Hahn that in recounting the evening of the party a few days later, McMurdo had described only J.S.'s performing oral sex.

Surrell's versions of the events also varied. In a pretext telephone conversation approximately one week after the party, set up and recorded by Hahn, Surrell told J.S. that she "went down on [him]." When later interviewed by Hahn, however, Surrell denied any sexual contact. He provided a DNA sample.

At that time, Deputy District Attorney Karen Pearson told Hahn, "based upon all of the information at this time, her office would not accept the filing of charges." The record neither explains her reasons nor indicates that Hahn or J.S. took issue with the decision.

Months later, DNA testing of vaginal and anal swabs taken from J.S. identified Surrell's genetic material. Shortly thereafter, Hahn recognized that the alleged offenses had not occurred within the City of Aurora and forwarded the file to the Arapahoe County Sheriff. Investigator Joni Gordanier was assigned to the case, although Hahn continued to have contact with Pearson, J.S., and J.S.'s mother.

In a January 2001 interview, Gordanier informed Surrell of the DNA evidence. He then admitted having had sexual intercourse with J.S., but said that she had consented. Gordanier prepared an Arapahoe County offense report and an affidavit of probable cause for arrest warrant against Surrell, based on Hahn's file. She could not explain the absence of similar action relative to McMurdo. Gordanier did not communicate directly with the district attorney's office before preparing these documents, but testified that she expected charges would be filed against Surrell.

According to Hahn's contemporaneous supplemental report and his testimony, Pearson advised him that "the case against Clyde Surrell was fileable [sic], and that she felt that charges could also be pressed against Riley McMurdo." She requested him to perform unspecified follow-up investigation. He asked for and received her permission to contact J.S.

J.S. was then attending college in Arizona. She testified that Hahn had telephoned and said "they had decided they were going to prosecute and it was just up to me as to whether I wanted to move forward." J.S., who had attempted suicide after learning of the DNA results, whose parents were divorcing, and whose father was terminally ill, told Hahn that she could not go forward.

On learning that J.S. would not proceed, Pearson created a "No File Work Sheet" stating, "[J.S.] does not want to go forward with this for personal reasons (parents divorcing, father ill, [she] tried to commit suicide a few weeks ago). The likelihood of success at trial is slim due to facts."

In 2003, while still attending college in Arizona, J.S. learned of an investigation into alleged sexual assaults by football players and recruiting improprieties at the University of Colorado (CU). She came to believe that Surrell was "the ring leader of the recruiting scandal" and expressed regret to her mother about not having proceeded in 2001, which might have prevented harm to other victims. J.S.'s mother contacted Hahn.

In early 2004, a meeting occurred among Hahn, Pearson, J.S., and J.S.'s mother. According to J.S.'s testimony, Pearson said, "we've decided we're not going to go forward with it because of time issues," "with the length of time that it might be difficult," and "it would look like we were stacking CU's plate and trying to jump on the bandwagon." J.S. did not recall Pearson having said anything "about the strength of the evidence in the case." Hahn...