People v. Roehrs

• Citation: 440 P.3d 1231
• Decision Date: 07 March 2019
• Docket Number: Court of Appeals No. 16CA2229
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dana ROEHRS, Defendant-Appellant.
• Court: Court of Appeals of Colorado

440 P.3d 1231

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Dana ROEHRS, Defendant-Appellant.

Court of Appeals No. 16CA2229

Colorado Court of Appeals, Division VI.

Announced March 7, 2019

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant-Appellant

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Dana Roehrs, appeals the judgment of conviction entered on a jury verdict finding her guilty of retaliation against a witness and harassment. We reverse the judgment of conviction and remand with directions to grant Roehrs a new trial before a different judge.

I. Background

¶ 2 Roehrs was an interested party in a dependency and neglect hearing at which Judge Theresa M. Cisneros presided. At the hearing, Sergeant Couch, of the Teller County Sheriff’s Department, testified concerning Roehrs’s presence at the scene of an investigation that he was conducting. During Sergeant Couch’s testimony, Roehrs stood up, walked toward the witness stand, and said, "You're a liar. I am going to have your job." Judge Cisneros asked Roehrs to leave the courtroom, a directive that Roehrs followed. After testifying, Sergeant Couch left the courtroom. On his way to the clerk’s office, he passed Roehrs, who was sitting on a bench in the hallway. As he passed, he heard Roehrs say, "I'm going to fuck you up."

Sergeant Couch responded, "What did you say.... Are you threatening me?" Roehrs responded, "I'm going to sue you." Sergeant Couch replied, "What did you say before that?" Roehrs answered, "I said, I am going to sue you."

¶ 3 As a result of Roehrs’s behavior at the courthouse, the People charged her with retaliation against a witness, harassment, and intimidating a witness. § 18-8-704(1)(a), C.R.S. 2018; § 18-8-706, C.R.S. 2018; § 18-9-111(1)(h), C.R.S. 2018.¹ As the presiding judge at the dependency and neglect hearing, Judge Cisneros witnessed some of the behavior and statements that were at issue in the later criminal trial on these charges. The substance, tone, and intent of Roehrs’s courtroom statements were disputed at trial, as was her location within the courtroom when she made the statements. Moreover, according to Sergeant Couch, Judge Cisneros later called him and the attorneys into her chambers to discuss what had happened outside the courtroom. During that meeting, Sergeant Couch told Judge Cisneros about the incident with Roehrs. Nonetheless, Judge Cisneros was assigned to preside over the trial on these criminal charges.

¶ 4 Before trial, Roehrs’s counsel moved to recuse² Judge Cisneros on the grounds that because Judge Cisneros had personal knowledge of the facts to be tried and was a material witness to Roehrs’s conduct, there was an appearance of bias or prejudice. Judge Cisneros denied the motion, ruling that Roehrs had failed to prove bias or personal knowledge of disputed facts.

¶ 5 Judge Cisneros then presided over all proceedings in the district court. The jury found Roehrs guilty of retaliation against a witness and harassment. Roehrs was acquitted on the charge of intimidating a witness. Judge Cisneros sentenced Roehrs to four years in the custody of the Department of Corrections and five years of parole for the retaliation conviction, in addition to six months in county jail for the harassment conviction, to run concurrently to her four-year prison sentence.

¶ 6 On appeal, Roehrs contends that the trial court erred in denying her motion to recuse and in imposing an unduly punitive sentence. Because we reverse and remand for a new trial based on the denial of the motion to recuse, we do not reach the sentencing issue.

II. Recusal

A. Applicable Law

¶ 7 We review a trial court’s ruling on a motion to disqualify a judge de novo. Smith v. Dist. Court , 629 P.2d 1055, 1056 (Colo. 1981). When evaluating a motion to recuse, we must bear in mind that a judge must not be tainted by bias or partiality. People v. Julien , 47 P.3d 1194, 1197 (Colo. 2002). A criminal defendant has a constitutional right to have an impartial judge sit on her case at all stages of the proceedings. People v. Hagos , 250 P.3d 596, 611 (Colo. App. 2009). "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

¶ 8 Also essential to our review are the statutes, rules, and codes that govern judicial conduct in Colorado. Smith v. Beckman , 683 P.2d 1214, 1216 (Colo. App. 1984) (stating that when a judge considers the sufficiency of a motion for disqualification, she must consider the applicable statutes and rules of procedure as well as the Code of Judicial Conduct). These laws delineate three fundamental limitations on a judge’s authority to preside over a criminal case where the judge has knowledge of the allegedly criminal actions.

¶ 9 First, section 16-6-201(1)(d), C.R.S. 2018, and Colorado Rule of Criminal Procedure 21(b)(1)(IV) provide that a judge shall be disqualified when she is "in any way interested or prejudiced³ with respect to the case, the parties, or counsel."

¶ 10 Second, Canon 2 of the Colorado Code of Judicial Conduct states that "[a] judge shall perform the duties of judicial office impartially, competently, and diligently." Implementing that canon with respect to disqualification, Rule 2.11(A) states as follows:

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding .

C.J.C. 2.11(A) (emphasis added).⁴ Thus, Rule 2.11(A)(1) goes further than section 16-6-201(1)(d) and Crim. P. 21(b)(1)(IV) in explicitly including not only personal bias and prejudice as a basis for disqualification but also reasonable questions regarding partiality that arise when a judge has "personal knowledge of facts that are in dispute" in a proceeding. Accordingly, CRE 605 provides that the judge presiding at trial may not testify in that trial as a witness, even if no objection is made.

¶ 11 Third, C.J.C. Rule 2.11(A)(2)(d) further states that a judge’s impartiality might reasonably be questioned if a judge knows that she is "likely to be a material witness in the proceeding."

¶ 12 To determine whether recusal is warranted in light of these limitations, a judge must evaluate the sufficiency of the motion and affidavits, accepting the facts stated therein as true. People v. Botham , 629 P.2d 589, 595 (Colo. 1981), superseded by rule on other grounds as stated in People v. Garner , 806 P.2d 366, 370 (Colo. 1991). A motion is legally sufficient when it states "facts from which it may reasonably be inferred that the judge has a bias or prejudice that will prevent him from dealing fairly with the defendant." Id. The court must examine both the actuality and the appearance of fairness in light of the facts alleged. Id. ; see Estep v. Hardeman , 705 P.2d 523, 526 (Colo. 1985) ("Thus, either actual prejudice on the part of the trial judge or its mere appearance can require the disqualification of that judge."). Even if the judge is entirely convinced of her own impartiality, she must take care not to allow the justice system to be impugned by an appearance of partiality. Botham , 629 P.2d at 595. This concern must be given the "highest consideration in ruling on a motion for disqualification" to secure the confidence of litigants and maintain public respect for the courts. Smith , 683 P.2d at 1216.

B. Procedural Sufficiency of the Motion and Affidavit

¶ 13 As an initial matter, the People argue that Roehrs’s motion fails on procedural grounds. They correctly note that section 16-6-201(3) and Crim. P. 21(b)(1) require that the motion be supported by affidavits from at least two credible persons who are not related to the defendant. Roehrs’s motion was supported by only one affidavit from her counsel.

¶ 14 The record does not contain any indication that the prosecution objected to the motion to recuse on this basis when it was filed. The motion was also renewed at a pretrial hearing, and the prosecution again made no objection on this basis. However, a party can ordinarily defend the judgment of the trial court on any ground supported by the record. People v. Eppens , 979 P.2d 14, 22 (Colo. 1999). Nonetheless, due to the unusual facts at issue in this case and the resulting strong appearance of impropriety, we decline to dispose of this claim on procedural grounds for several reasons.

¶ 15 The judge was aware of the facts on which the motion was based and did not dispute those facts. See People v. Owens , 219 P.3d 379, 385-86 (Colo. App. 2009) (reviewing the merits of a petition for rehearing in which a motion to recuse a judge was made without affidavits, because the judge was aware of the facts alleged and did not dispute them). Also, the affidavit was sufficient to verify the facts set forth in the motion. Botham , 629 P.2d at 596 (stating that the affidavits need not contain all the essential facts but must verify those facts set forth in the motion). Moreover, had this technical deficiency been raised before the trial court, Roehrs may well have been able to cure it by submitting a second affidavit. Owens , 219 P.3d at 386 (noting that in the interests of judicial economy, review on the merits is warranted where a court anticipates that a defendant could immediately supplement the motion with the proper affidavits). Finally, the trial court addressed the merits of the motion and denied it only on the merits. We therefore also choose to address the merits.⁵ See People v. Fitzgibbons , 909 P.2d 1098, 1101 (Colo. 1996) (noting that the respondent filed no affidavit, but the hearing board reached the merits of the case and the court would...