People v. CV, No. 02SA331.

• Decision Date: 03 March 2003
• Docket Number: No. 02SA331.
• Citation: 64 P.3d 272
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. C.V., a child, Defendant-Appellee. and concerning, Helen Rowe, parental respondent.
• Court: Colorado Supreme Court

64 P.3d 272

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. C.V., a child, Defendant-Appellee. and concerning, Helen Rowe, parental respondent.

No. 02SA331.

Supreme Court of Colorado, En Banc.

March 3, 2003.

Mike Davidson, District Attorney for the Fifteenth Judicial District, Lamar, CO, Attorneys for Plaintiff-Appellant.

David S. Kaplan, Colorado State Public Defender, Gail Morrison, Deputy State Public Defender, La Junta, CO, Attorneys for Defendant-Appellee.

Justice KOURLIS delivered the Opinion of the Court.

In this case, we determine that the trial court abused its discretion by disqualifying the District Attorney from prosecuting the defendant for allegations of criminal mischief on the basis that the District Attorney was a member of the congregation of the vandalized church and had seen the defendant at that church at some time in the past.¹

I. Facts and Procedural History

The juvenile defendant here faces prosecution based on numerous crimes committed at various times. Of specific relevance at this stage of the proceeding are allegations that the defendant broke into the Lamar Church of Christ on May 18, 2002, and damaged property therein. Because the District Attorney attends the church and stated that he has before seen the defendant at the church, the defendant sought disqualification of the Fifteenth Judicial District Attorney's office and appointment of a special prosecutor to proceed with the case. On October 25, 2002, the trial court, operating under section 20-1-107 as it existed prior to July 1, 2002, granted the defendant's motion without the introduction of any evidence, stating that the District Attorney's prosecution of the case created an appearance of impropriety. The People contest that decision.

II. Jurisdiction

The People assert alternate grounds for jurisdiction in this case. They first rely upon sections 20-1-107(3), 6 C.R.S. (2002), XX-XX-XXX(2), 6 C.R.S. (2002) and C.A.R. 4.1, which affirmatively create a right of interlocutory appeal to contest district attorney disqualification orders. Alternatively, the People contend original jurisdiction exists under C.A.R. 21.

We exercise our discretion to accept original jurisdiction pursuant to the provisions of C.A.R. 21. Prior to the enactment of the amendments to sections 20-1-107 and XX-XX-XXX, this court accepted original jurisdiction under C.A.R. 21 over appeals raising similar issues. See, e.g., People v. Palomo, 31 P.3d 879 (Colo.2001) (evaluating district attorney removal as an original proceeding pursuant to C.A.R. 21); People ex rel. Sandstrom v. Dist. Ct., 884 P.2d 707 (Colo.1994) (reviewing district attorney disqualification as an original proceeding pursuant to C.A.R. 21); Riboni v. Dist. Ct., 196 Colo. 272, 586 P.2d 9 (1978) (accepting jurisdiction over original proceeding brought by party seeking relief in the nature of mandamus pursuant to C.A.R. 21 for district attorney disqualification). The exercise of original jurisdiction is discretionary and may be appropriate where the ruling at issue "may have a significant impact on a party's ability to litigate the merits of a controversy," or where the district court is proceeding without or in excess of its jurisdiction. People v. Braunthal, 31 P.3d 167, 172 (Colo.2001) (citations omitted); see also, People v. Casias, 59 P.3d 853, 856 (Colo.2002). Further, original jurisdiction may be necessary to review a serious abuse of discretion that could not adequately be remedied by appellate review. See Casias, 59 P.3d at 856; Braunthal, 31 P.3d at 172 (quoting People v. Dist. Ct., 790 P.2d 332, 334-35 (Colo.1990)). As we have addressed similar district attorney disqualification cases under our original jurisdiction, we now similarly exercise our discretion to accept original jurisdiction in this case pursuant to C.A.R. 21.

III. Analysis

Generally, Colorado requires its district attorneys to prosecute criminal cases on behalf of the state and the counties within his or her district. Colo. Const. art. VI, § 13; § 20-1-102(1)(a), 6 C.R.S. (2002). Trial courts, however, have broad discretion to disqualify district attorneys from prosecuting a particular case. Section 20-1-107, as it existed prior to July 1, 2002, provided the trial courts discretion to disqualify a district attorney, and to appoint a special prosecutor, if the district attorney was "interested" in the case. § 20-1-107, 6 C.R.S. (2001) (amended 2002). Additionally, under that statute this court has also approved disqualification if the continued prosecution of the case by the district attorney would create an "appearance of impropriety." See People v. Palomo, 31 P.3d 879, 882 (Colo.2001); People ex rel. Sandstrom v. Dist. Ct., 884 P.2d 707, 710 (Colo.1994); People v. Garcia, 698 P.2d 801, 806 (Colo.1985).

Effective July 1, 2002, the General Assembly amended section 20-1-107 to read:

A district attorney may only be disqualified in a particular case at the request of the district attorney or upon a showing that the district attorney has a personal or financial interest or finds special circumstances that would render it unlikely that the defendant would receive a fair trial. A motion to disqualify a district attorney shall be served upon the district attorney at least two weeks before the motion is heard. Such motion shall contain at least a statement of the facts setting forth the grounds for the claimed disqualification and the legal authorities relied upon by the movant and shall be supported by affidavits of witnesses who are competent to testify to the facts set forth in the affidavit. The district attorney may file a response in opposition to the motion and may appear at any hearing held on the motion. The judge shall review the pleadings and determine whether an evidentiary hearing is necessary. The motion shall not be granted unless requested by the district attorney or unless the court finds that the district attorney has a personal or financial interest or special circumstances exist that would render it unlikely that the defendant would receive a fair trial.

§ 20-1-107(2), 6 C.R.S. (2002). The first question before this court today is whether the trial court should have applied the amended provisions of the statute, because it was in effect as of the date the motion was filed, despite the fact that the criminal act giving rise to the issue occurred prior to the effective date of the amendments. We find it unnecessary to reach that question, as the trial court clearly abused its discretion in disqualifying the District Attorney, irrespective of which standard applied to the motion.

Under the section 20-1-107 as it read prior to the July, 2002 amendments, the General Assembly did not define or qualify the term "interested." We have interpreted the term to mean that disqualification is warranted when the district attorney has some involvement in the defendant's case such that the district attorney's ability to continue the prosecution fairly would be impaired. See Sandstrom, 884 P.2d at 710. However, a showing of mere partiality is not sufficient. "[A]llegations of interest must show a concern in the outcome of the matter such that the district attorney will either reap some benefit or suffer some disadvantage." People ex rel. Losavio v. Gentry, 199 Colo. 153, 160, 606 P.2d 57, 62 (1980); see also Gray v. Dist. Ct., 42 Colo. 298, 304, 94 P. 287, 289 (1908).

Even where the district attorney has no direct interest in the case, we have allowed district attorney disqualifications where there is an "appearance of impropriety". See Palomo, 31 P.3d at 882 (recognizing that disqualification can be based on a finding of an appearance of impropriety, but reversing the trial court's order due to insufficient evidence that such a result would transpire); Sandstrom, 884 P.2d at 710-11 (holding that the trial court abused its discretion in disqualifying the district attorney, as the district attorney's involvement in both a criminal case and a civil forfeiture case was too attenuated to constitute an actual conflict of interest or an appearance of impropriety); Garcia, 698 P.2d at 806 (recognizing the appearance of impropriety standard, but finding no abuse of discretion where the trial court disqualified the district attorney listed as a prosecution witness). Generally, we have defined appearance of impropriety as a circumstance where the district attorney again has `an interest' in the matter aside from his or her "professional responsibility of upholding the law." Sandstrom, 884 P.2d at 711 (quoting People v. Dist. Ct., 189 Colo. 159, 162, 538 P.2d 887, 889 (1975)); see also Palomo, 31 P.3d at 882. In evaluating whether an appearance of impropriety exists, we have been careful to note that courts should not accept the most cynical view. Palomo, 31 P.3d at 882; McFarlan v. Dist. Ct., 718 P.2d 247, 249 (Colo.1986).

In determining whether to disqualify a district attorney, the trial court should focus on whether disqualification appears reasonably necessary to ensure "the integrity of the fact-finding process, the fairness or appearance of fairness of trial, the orderly or efficient administration of justice, or public trust or confidence in the criminal justice system." Garcia, 698 P.2d at 806 (internal quotations omitted); see also Palomo, 31 P.3d at 882. It is incumbent upon the defendant to present sufficient evidence to support a conclusion that he or she will be denied a fair trial if the prosecuting attorney is allowed to proceed with the prosecution. See Riboni v. Dist. Ct., 196 Colo. 272, 274, 586 P.2d 9, 11 (1978); Wheeler v. Dist. Ct., 180 Colo. 275, 278-79, 504 P.2d 1094, 1096 (1973).

In reviewing a trial court's decision to disqualify a district attorney, this court looks to whether the facts support a conclusion that the "public would perceive continued prosecution by the district attorney's office, under the particular circumstances here, as improper and unjust, so as to...