People v. Chavez

• Decision Date: 26 June 2006
• Docket Number: No. 05SA311.,05SA311.
• Citation: 139 P.3d 649
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Loren Aldopho CHAVEZ, Defendant-Appellee.
• Court: Colorado Supreme Court

139 P.3d 649

The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Loren Aldopho CHAVEZ, Defendant-Appellee.

No. 05SA311.

Supreme Court of Colorado, En Banc.

June 26, 2006.

Bill Thiebaut, District Attorney, Tenth Judicial District, Karl S. Tameler, Deputy District Attorney, Pueblo, Colorado, Attorney for Plaintiff-Appellant.

The Law Offices of J.E. Losavio, J.E. Losavio, Wesley Hassler, Suzanne E. McKinney-Swanstrom, Pueblo, Colorado, Attorneys for Defendant-Appellee.

Justice RICE delivered the Opinion of the Court.

I. Facts and Procedural History

Defendant Loren Aldopho Chavez has been charged in six different cases in Pueblo County District Court.¹ Pueblo Attorney Cory TenBrink entered his appearance in five of the cases. Attorney Steven Newell later entered a substitution of counsel in four of the five cases. Thereafter, on July 21, 2005, the defendant substituted another new counsel, J.E. Losavio, with respect to all six of his cases.

Defendant then filed a motion entitled Defendant's Motion for the Disqualification of the Office of the District Attorney for the Tenth Judicial District in all six cases. Each motion alleged that Cecil Turner's employment as An assistant district attorney for the Pueblo District Attorney's office,² after having engaged in confidential communications with the defendant about the pending cases, constituted an appearance of impropriety such that the Office of the District Attorney for the Tenth Judicial District (hereinafter District Attorney's Office) should be disqualified.

The motions were each supported by the same affidavit from attorney Cory TenBrink, who stated that Cecil Turner told him that a woman Turner knew as Amber Anaya came to Turner's office more than once to discuss retaining Turner to represent the defendant in the six pending cases. TenBrink averred that Turner had a discussion with the defendant about the cases. Turner told TenBrink about these contacts because Turner was under the impression that defendant's cases "should have ended up in his office."

A hearing was held on all six motions to disqualify on October 4, 2005. At the hearing, the defense called TenBrink, who testified that he had been contacted and retained by the defendant in January 2005 for the purpose of representing him in the cases then pending. Later, TenBrink testified, he had a conversation with attorney Cecil Turner, who at that time was a colleague and a friend. According to TenBrink, in that conversation Turner "indicated . . . that he thought that the defendant was going to hire his office." TenBrink then spoke to the defendant and learned that the defendant had spoken with Turner's office, as well as that of another Pueblo attorney. TenBrink testified that the defendant told him that he had spoken with Turner by phone about the case.

The defendant also testified at the hearing. He stated that Turner called him on his cellular telephone, and that in the course of the eight-to-ten-minute conversation that ensued, he disclosed to Turner information about his pending cases. He further testified that he believed that the information he discussed would be kept confidential.

The People called Douglas McMillan as a witness. McMillan testified that he worked for Turner as a clerical assistant during January, 2005. McMillan testified that no formal intake sheet was completed for the defendant, although he does remember that a female called about retaining Turner's services for the defendant. He did not take any confidential or case-related information from the female. Turner later asked McMillan to make a follow-up call to the female, who told him that the defendant had already hired TenBrink.

Finally, the People introduced into evidence a copy of the Pueblo District Attorney's "Policy Screening Current District Attorney Employees from Participating in the Prosecution of Former Clients." This policy prohibits any employee who formerly represented private criminal defendants from speaking about their representation or about their duties in that capacity to any member of the District Attorney's Office or sharing any information or becoming involved in the cases that would now be pending against former clients.³

The trial court granted the defendant's motion for disqualification of the District Attorney's Office on October 5, 2005. The trial court found that the defendant had an eight-to-ten-minute conversation with Turner "where Mr. Chavez disclosed to Mr. Turner information about the pending cases. Mr. Chavez believed the information he gave Mr. Turner would be kept confidential." The trial court also found that McMillan confirmed the fact that someone had contacted Turner's office regarding representation of defendant. Moreover, the trial court found that Turner had a discussion with defendant's former counsel, TenBrink, and that TenBrink described Turner as "mildly upset" about TenBrink's representation of defendant because "Mr. Turner was under the impression that Mr. Chavez's cases should have ended up in his office." The trial court also found that Turner himself had believed the relationship existed at one point in time, and that the existence of an attorney-client relationship is "not dependant on payment of fees or upon the execution of a formal contract."

The court did not find that Turner had a personal or financial interest in the prosecution; however, based upon the above findings of fact, the court concluded that there was an appearance of impropriety in the District Attorney's continuing to prosecute the defendant. The court additionally found that the District Attorney's Office's screening policy was not sufficient to overcome the appearance of impropriety under the circumstances of this case.⁴ Therefore, the court granted Defendant's motion for disqualification of the District Attorney's Office in his cases.

The People filed an interlocutory appeal of the trial court's ruling in this court. We conclude that the trial court erred in basing disqualification on an appearance of impropriety. However, our review of the record leads us to conclude that Turner's prior attorney-client relationship with Chavez requires that he personally be disqualified. We remand for a determination whether "special circumstances that would render it unlikely that the defendant would receive a fair trial" under section 20-1-107(2), C.R.S. (2005), exist such that the statute requires the entire District Attorney's Office to be disqualified.

II. Analysis

A. The Trial Court Erred in Basing Disqualification on an "Appearance of Impropriety"

In People v. N.R., which we also announce today, we hold that section 20-1-107, C.R.S (2005), eliminates "appearance of impropriety" as a basis for disqualification of district attorneys. N.R., Nos. 05SA273, 05SA294, slip op. at 10-11. The trial court in the instant case, therefore, erred in disqualifying the District Attorney's Office because of the appearance of impropriety it found in the case.

B. Section 20-1-107 Requires Disqualification of Assistant District Attorney Turner

Section 20-1-107(2) authorizes disqualification of a district attorney's office "at the request of the district attorney or upon a showing that the district attorney has a personal or financial interest" or if the court finds that "special circumstances exist that would render it unlikely that the defendant would receive a fair trial." The district attorney has not requested disqualification in this case, and the trial court expressly found that there is no personal or financial interest on the part of the District Attorney's Office that warrants disqualification. The only issue we must resolve, then, is whether Assistant District Attorney Turner's contacts with the defendant when Turner was in private practice amount to "circumstances that would render it unlikely that the defendant would receive a fair trial" if prosecuted by the District Attorney's Office.

We have not, before today, construed the provision in section 20-1-107(2) that authorizes disqualification when the trial court finds that "special circumstances exist that would render it unlikely that the defendant would receive a fair trial." However, as we note in N.R., we have considered what type of facts would support the conclusion that disqualification is necessary to ensure that the defendant receives a fair trial. See People v. C.V., 64 P.3d 272, 275-76 (Colo.2003); People v. Dist. Court in and For Second Judicial District, 189 Colo. 159, 162, 538 P.2d 887, 888-89 (1975); Wheeler v. District Court, 180 Colo. 275, 278-79, 504 P.2d 1094, 1096 (1973).

Indeed, in Farina v. Dist. Court, which was consolidated with Osborn v. Dist. Court, 619 P.2d 41 (Colo.1980), we considered whether the district attorney's prior representation of a criminal defendant could reasonably form the basis for the conclusion the defendant would "`probably not receive a fair trial'" if prosecuted by the district attorney's office. Id. at 48 (quoting Wheeler, 180 Colo. at 278-79, 504 P.2d at 1096).<sup>5</sup> The defendant in Farina moved to disqualify the district attorney's office because the district attorney had represented the defendant in an unrelated case thirteen years prior to the prosecution at issue. We concluded that disqualification is proper when "the present prosecution is `substantially related' to the earlier case." See Osborn, 619 P.2d at 48 (framing the disqualification issue in these terms). Given the factual distinctions between the two prosecutions, as well as the fact that thirteen years had passed between them, we concluded that the defendant had not met his burden of proving that he would "probably not receive a fair trial" if prosecuted by the district attorney. Id. at 48.

In light of Farina, we hold that where the prosecuting attorney had an attorney-client relationship with the defendant in a case that was substantially related to the case in which the defendant is being prosecuted, "circumstances exist that...