Kailey v. Chambers, 10CA1209.

• Decision Date: 23 June 2011
• Docket Number: No. 10CA1209.,10CA1209.
• Citation: 261 P.3d 792
• Parties: Randy KAILEY, Petitioner–Appellant,v.Carol CHAMBERS, District Attorney–Appellee.
• Court: Colorado Court of Appeals

261 P.3d 792

Randy KAILEY, Petitioner–Appellant,

v.Carol CHAMBERS, District Attorney–Appellee.

No. 10CA1209.

Colorado Court of Appeals, Div. II.

June 23, 2011.

Randy Kailey, Pro Se.Carol Chambers, District Attorney, Andrew Cooper, Chief Deputy District Attorney, Centennial, Colorado, for Attorney–Appellee.Opinion by Judge DAILEY.

Petitioner, Randy Kailey, appeals the district court's order denying his motion for appointment of a special prosecutor or, in the alternative, a warrant to arrest a particular person. We affirm.

I. Background

In 1985, Kailey was convicted of two counts of aggravated incest involving his daughters, NJ and BK, for which he was sentenced to thirty-two years imprisonment. In 2004, he received information from NJ that DMB, Kailey's former sister-in-law, had sexually assaulted both his daughters and his granddaughter, MM, while they stayed with her at an undisclosed Englewood, Colorado address in Arapahoe County. He later received information that DMB had sexually assaulted BK in 2007.

According to Kailey, in May 2009, he filed documents with the Denver Police Department and District Attorney's office, accusing DMB of sexually assaulting BK beginning in 1996 (when BK was fifteen) and of sexually assaulting four-year-old MM in 2003 or 2004. The Denver District Attorney's office responded that (1) it could not commence a criminal prosecution against DMB because the alleged crimes had occurred outside the City and County of Denver and (2) he should contact the District Attorney's office for the Eighteenth Judicial District instead.

Kailey then sent copies of his daughters' letters and affidavits, as well as independent investigative reports conducted by the Colorado Innocence Project, to both the Englewood Police Department and to Carol Chambers, the District Attorney for the Eighteenth Judicial District. After five months passed without receiving a response from either the police department or the District Attorney, he prepared the motion that is at issue in this appeal; four months later, he filed that motion with the court.

In his motion, Kailey requested appointment of a special prosecutor pursuant to section 16–5–209, C.R.S.2010, and the issuance of a warrant to arrest DMB pursuant to section 16–3–108, C.R.S.2010. Without requiring a response from the District Attorney or conducting a hearing, the district court denied Kailey's motion, finding that he had not met his burden under section 16–5–209 “of overcoming the presumption that the prosecutor acted in accordance with the law and prov[ing] by clear and convincing evidence that the prosecutor's decision was arbitrary and capricious.” The court did not explicitly address Kailey's alternative request for a warrant to arrest DMB.

II. Appellate Contentions

On appeal, Kailey contends that, for the following reasons, the trial court erred:

• first, under section 16–5–209, the court abused its discretion when it did not order the District Attorney to (1) respond to his motion and (2) initiate an investigation; and

• second, under section 16–3–108, the trial court erred by not issuing an arrest warrant for DMB.

We address and reject each contention in turn.

III. Section 16–5–209

District attorneys are not part of the judicial branch of government; they belong, instead, to the executive branch. People v. Dist. Court, 632 P.2d 1022, 1024 (Colo.1981). As executive officers, they have broad discretion in the performance of their duties. Id.; J.S. v. Chambers, 226 P.3d 1193, 1200 (Colo.App.2009). “The scope of this discretion extends to the power to investigate and to determine who shall be prosecuted and what crimes shall be charged.” Dist. Court, 632 P.2d at 1024; see also People v. Renander, 151 P.3d 657, 659 (Colo.App.2006) (“[A]s a general matter, the power to initiate, alter, or dismiss charges rests solely within the prosecuting attorney's discretion, and may not be controlled or limited by judicial intervention.”).

Section 16–5–209 limits this power, J.S., 226 P.3d at 1200, by providing relief in the event of an unjustifiable refusal to prosecute a person for a crime:

The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so.

§ 16–5–209.

Because a district attorney's charging decision is afforded a presumption of correctness, there must be a clear and convincing showing that his or her decision not to prosecute was arbitrary or capricious and without reasonable excuse before the court will order prosecution or the appointment of a special prosecutor. See Landis v. Farish, 674 P.2d 957, 959 (Colo.1984). Hence, “[a]bsent a clear abuse of discretion, a judge may not substitute his judgment or discretion for that of the prosecutor.” J.S., 226 P.3d at 1201 (quoting Landis, 674 P.2d at 959). We review de novo the district court's application of the statutory abuse of discretion standard (i.e., “arbitrary or capricious and without reasonable excuse”) to the district attorney's decision. J.S., 226 P.3d at 1203.

A. The Charging Decision

Ordinarily, when, as here, a person alleges a district attorney's unjustified refusal to prosecute, a trial court should first determine whether the district attorney has made a charging decision not to prosecute. If no such decision has been made, then there has not been a “refusal” to prosecute, as contemplated by section 16–5–209, and no further inquiry is necessary.

In the present case, nothing in the record, other than the passage of time, indicates that the District Attorney had made any decision not to prosecute (or, for that matter, investigate) DMB based on the allegations in Kailey's and his daughters' affidavits. Because the parties on appeal assume that the District Attorney decided not to prosecute, we will do likewise.¹

B. Lack of a Response

As quoted above, section 16–5–209 states that upon receiving an affidavit alleging the commission of a crime and the unjustified refusal of the district attorney to prosecute, a court “ may require the prosecuting attorney to appear before the judge and explain the refusal.” (Emphasis added.)

When interpreting statutes, our primary task is to ascertain and give effect to the intent of the legislature in enacting them; we give statutory terms their commonly accepted meaning to discern that intent. People v. Triantos, 55 P.3d 131, 134 (Colo.2002). When the language is unambiguous and the legislative intent reasonably clear, we need not resort to other rules of statutory construction. Id.

The legislature's use of the term “may” indicates a grant of discretion or choice among alternatives. Id. “[T]o say that a court has discretion in resolving an issue means that it has the power to choose between two or more courses of action and that it is therefore not bound in all cases to select one over the other.” Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1203–04 (Colo.App.2010) (quoting Bruce W. Higley Defined Benefit Annuity Plan v. Kidder, Peabody & Co., 920 P.2d 884, 891 (Colo.App.1996)).

The legislature, by using the term “may” in section 16–5–209, granted the district court discretion whether to require the prosecuting attorney to appear before the court and explain the refusal to prosecute. See Schupper v. Smith, 128 P.3d 323, 326 (Colo.App.2005) (construing the present version of section 16–5–209 as “providing for an evidentiary hearing at the trial court's discretion, once it had considered the petitioner's affidavit; the explanation of the district attorney, if required by the trial court; and any argument of the parties”) (emphasis added).

Thus, we must determine if, under the circumstances here, the court abused that discretion.

C. Failure to Require an Investigation

Initially, we note that, although district attorneys have investigative powers, section 16–5–209 addresses only a district attorney's unjustified refusal to “prosecute”; it says nothing about a district attorney's failure or refusal to “investigate.”

The power to prosecute is distinct from the power to investigate. Compare, e.g., Black's Law Dictionary 1341 (9th ed. 2009) (defining “prosecute,” as pertinent here, as “[t]o commence and carry out a legal action”; “[t]o institute and pursue a criminal action against (a person)”), and State v. Arculeo, 29 Kan.App.2d 962, 36 P.3d 305, 313 (2001) (“To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court.... It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or information.”) (quoting State v. Bowles, 70 Kan. 821, 79 P. 726, 728 (1905)), with Black's Law Dictionary at 902 (defining investigate as “[t]o inquire into (a matter) systematically; to make (a suspect) the subject of a criminal inquiry”), and Wright v. Kellogg Co., 289 Mich.App. 63, 795 N.W.2d 607, 610 (2010) (same).

Because statutory restrictions on the powers of district attorneys are “construed as narrowly as possible by the courts,” J.S., 226 P.3d at 1201 (quoting People ex rel. Losavio v. Gentry, 199 Colo. 153, 159, 606 P.2d 57, 61–62 (1980)), we interpret section 16–5–209 as providing a remedy only for a district...