Rodriguez v. District Court for City and County of Denver

• Decision Date: 19 May 1986
• Docket Number: No. 85SA98,85SA98
• Parties: Frank D. RODRIGUEZ, Petitioner, v. DISTRICT COURT for the CITY AND COUNTY OF DENVER and Honorable Lynne Hufnagel, one of the judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 699

719 P.2d 699

Frank D. RODRIGUEZ, Petitioner, v. DISTRICT COURT for the CITY AND COUNTY OF DENVER and Honorable Lynne Hufnagel, one of the judges

thereof, Respondents.

No. 85SA98.

Supreme Court of Colorado,

En Banc.

May 19, 1986.

As Modified on Denial of Rehearing

June 23, 1986.

David F. Vela, Public Defender, David G. Eisner, Chief Deputy Public Defender, Robin J. Desmond, Michael J. Heher, Deputy State Public Defenders, Denver, for petitioner.

Norman S. Early, Jr., Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for respondents.

James F. Smith, Dist. Atty., Seventeenth Judicial Dist., Steven L. Bernard, Chief Trial Deputy, Brighton, for amicus curiae Colorado Dist. Attorneys' Council.

KIRSHBAUM, Justice.

The petitioner, Frank D. Rodriguez, has filed this original proceeding challenging orders of the respondent trial judge (the respondent) denying the petitioner's motion for recusal of the respondent and granting a motion by the People to disqualify the office of the public defender from representing the petitioner. The rule is discharged in part, made absolute in part, and the cause is remanded with instructions.

On November 14, 1984, the petitioner was arrested by Denver police officers as a result of their investigation of the death of a victim of a kidnapping. Late that evening deputy public defenders Philip Cherner and Robin Desmond, together with an investigator, traveled to the Denver police headquarters and requested permission to speak with the person who had been arrested in connection with the alleged kidnapping and homicide. They did not see the petitioner that evening. The following morning, at an advisement proceeding, Desmond and chief deputy public defender David Eisner were appointed co-counsel by the judge presiding at that proceeding to represent the petitioner.

In early February 1985, Margie Marquez, who at the time was in custody in connection with two separate Denver felony theft cases, contacted the Denver district attorney's office and requested a meeting with representatives thereof. Marquez was then represented on the theft charges by deputy public defender David Joyce. On February 6, 1985, Marquez met with deputy district attorneys Michael Little and Michael Kane and police personnel. At that time she stated she had documents tending to incriminate the petitioner in the kidnapping and murder charges which by then had been filed against him. Another meeting between Marquez and representatives of the Denver district attorney's office was scheduled, at which time Marquez would produce the documents. Her attorney, Joyce, was not present at these meetings.

On February 14, 1985, Marquez and Joyce appeared at a previously scheduled hearing in connection with the Denver theft cases. At the outset of the hearing, deputy district attorney Little informed the presiding judge that a possible conflict of interest had developed between Marquez and the public defender's office and that he, therefore, requested a continuance of the hearing. Joyce then stated on the record that he was informed that Marquez had initiated conversations with Little, that he did not know the content thereof, but that he "had an idea about what this is all about." Joyce then stated that if he were correct, there would be a conflict. The presiding judge granted the People's request to continue the hearing.

On the evening of February 14, Joyce visited his client, Marquez, at the Denver County Jail. According to the testimony of Marquez, Joyce did not approve of what she was doing and became angry with her. Marquez also testified that Joyce indicated to her he might have to withdraw as her counsel. The next day, Marquez delivered several letters to the prosecution which alleged certain information about the kidnapping and murder charges pending against the petitioner. At some time during that same day, Joyce requested and was granted permission to withdraw as counsel for Marquez in the theft cases. The two theft cases against Marquez were subsequently dismissed at the request of the People.

In March 1985, the petitioner filed motions to dismiss, a motion to disqualify the Denver district attorney's office from participating in this case, and a motion for discovery. These motions alleged, among other things, violations of ethical standards by the prosecution and violations of the petitioner's constitutional rights to due process of law by police officials and the prosecution. The petitioner also filed motions to discover communications between the respondent and the Honorable J. Stephen Phillips, another trial judge who was to preside over portions of this case, including jury selection proceedings; for appointment of a judge other than the respondent to hear this discovery motion; for substitution of judge(s); ¹ and for substitution of the respondent. During this time period, the People filed a motion to disqualify the office of the public defender as attorneys for the petitioner.

In the motion for substitution of judge(s), filed prior to the filing of the motion for substitution of the respondent, the petitioner alleged that prejudice existed on the part of Judge Phillips with regard to deputy public defender Eisner and asserted that such prejudice had been demonstrated during the course of proceedings in a case in which Eisner had participated as defense counsel and over which Judge Phillips had presided. The motion also stated that, pending further discovery, the public defender might later seek to disqualify the respondent from participating in the instant case, in part, on the basis of conversations between the respondent and Judge Phillips concerning the processing of this case. The motion for substitution of judge(s) also stated that counsel for the petitioner was filing a discovery motion "to determine the extent of the discussions between these two judges concerning ... this particular counsel."

Judge Phillips denied the petitioner's motion for substitution of judge(s). He also denied the motion for discovery insofar as it related to him. The respondent denied the petitioner's request for appointment of a different judge to hear the discovery motion. In the course of denying the petitioner's discovery motion insofar as it pertained to her, the respondent provided the following information:

1. The respondent had not ever spoken to defense counsel Eisner before his entry in this case, nor had the court ever met him socially before that time.

2. The respondent was aware that Judge Phillips had tried a particular capital case, and as a result of that case some difficulties between Judge Phillips and Eisner had arisen, but was not aware of what the difficulties were. The respondent was also aware of a letter sent to State Public Defender David Vela by Judge Phillips and of a letter in response by Vela but was not aware of the content of the letters.

3. That the respondent had not and did not intend to read the affidavits attached to the defense's motion for substitution of judge(s), except the respondent had read the affidavit of Desmond. With regard to this latter affidavit, the respondent stated that whether she had personal opinions concerning the death penalty was irrelevant since respondent would uphold the law regardless of what her personal opinions might be.

4. Any prior communications between the respondent and Judge Phillips concerning the division of responsibility in this case did not involve discussion of any counsel but merely involved procedural matters, except that a joint decision was made that all communication between counsel and the court should be on the record.

Subsequent to this ruling, the petitioner filed his motion for substitution of the respondent. Accompanying this motion was the same affidavit of Desmond which had previously been filed with the petitioner's motion for substitution of judge(s). No other affidavits were filed to support the motion for substitution of the respondent. The respondent's denial of this motion as well as the respondent's order granting the People's motion to disqualify the office of the public defender from representing the petitioner are challenged by this original proceeding.

I

Section 16-6-201(3), 8 C.R.S. (1978), states in pertinent part that motions for change of a judge "must be verified and supported by the affidavits of at least two credible persons...." Id. (emphasis added); see also Crim.P. 21(b). We do not agree with the petitioner's contention that the respondent's partial denial of his discovery motion prevented him from obtaining further information for additional affidavits to substantiate the alleged appearance of impropriety resulting from communications between the respondent and Judge Phillips, and that the respondent's ruling concerning the discovery motion was in and of itself indicative of prejudice with respect to the petitioner's case. The fact that the respondent granted the petitioner's discovery motion in part only, whether erroneous or not, fails to suggest any bias or prejudice on the part of the respondent with regard to this case or any issue or participant therein. See Altobella v. People, 161 Colo. 177, 420 P.2d 832 (1966). More importantly, the respondent did consider the allegations in the motion and in Desmond's affidavit but found them insufficient to require disqualification.

A motion and accompanying affidavits requesting disqualification of a trial judge from participating in a case properly assigned to that judge must state facts from which it may be reasonably inferred that the judge has a bias or prejudice with respect to the case, a party or counsel. Estep v. Hardeman, 705 P.2d 523 (Colo.1985); People v. Botham, 629 P.2d 589 (Colo.1981); People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977); Crim.P. 21(b)(1). In reviewing any motion and affidavits addressing this question, the trial court must consider both the...