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People v. Kendrick

Supreme Court of Colorado, En Banc

July 3, 2017

The People of the State of Colorado, Plaintiff-Appellant,
Maurice Dee Kendrick, Defendant-Appellee,

         Interlocutory Appeal from the District Court El Paso County District Court Case No. 15CR2069 Honorable Jann P. DuBois, Judge

          Attorneys for Plaintiff-Appellant: Daniel H. May, District Attorney, Fourth Judicial District, Jennifer Darby, Deputy District Attorney, Stephanie Redfield, Deputy District Attorney, Doyle Baker, Senior Deputy District Attorney Colorado Springs, Colorado

          Attorneys for Defendant-Appellee: The Kohn Law Firm, Molly Hostetler, Shimon Kohn Colorado Springs, Colorado



         ¶1 Prosecutors from the District Attorney's Office for the Fourth Judicial District (the "District Attorney") twice brought the defendant, Maurice Dee Kendrick, to trial on numerous charges related to allegations that he threatened several women with a gun and then fired the gun at two occupied houses. Each trial ended in a mistrial, and after ordering the second mistrial, the district court found, pursuant to section 20-1-107(2), C.R.S. (2016), that "special circumstances" rendered it unlikely that Kendrick would receive a fair trial if he were again tried by the District Attorney. Accordingly, the court disqualified the District Attorney from re-prosecuting the case and ordered that a special prosecutor be appointed to try Kendrick a third time. The People then filed what they deemed an interlocutory appeal pursuant to C.A.R. 4.1, requesting that we reverse the disqualification order.[1]

         ¶2 As a threshold matter, we note that the People erred in filing the current proceeding under C.A.R. 4.1. That rule enumerates specific grounds for interlocutory appeals in criminal cases, and district attorney disqualification is not one of those grounds. As discussed more fully below, however, section 16-12-102(2), C.R.S. (2016), specifically allows the People to file an interlocutory appeal in the circumstances presented here, and we will treat the People's appeal as having been filed under that statute. Turning then to the merits, we conclude that the district court misinterpreted the "special circumstances" prong of section 20-1-107(2) in finding that the circumstances of this case satisfy the high burden required to bar an entire district attorney's office from prosecuting a defendant.

         ¶3 Accordingly, we conclude that the district court abused its discretion in disqualifying the District Attorney, and we therefore reverse the district court's order and remand this case for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶4 Late one night, Kendrick visited the home of his friend A.B., where she and four other women were drinking and "hanging out." According to several witnesses, Kendrick began flirting with two of the women, but they were not interested in him. This upset Kendrick, and he brandished a gun and threatened the women. A.B. then told him to leave, and he went outside, where a car was waiting for him.

         ¶5 Witnesses further reported that after Kendrick got into the car, he drew his gun and fired several rounds toward A.B.'s house and a neighboring house. Some of the women who had been visiting A.B. were in A.B.'s front yard, the rest were inside A.B.'s house, and A.B.'s neighbor and the neighbor's six-year-old son were in their house. The police found three bullets at A.B.'s house and four bullet holes on the exterior of the neighbor's house (two bullets had ended up in the neighbor's living room, a third was found by an easy chair, and the fourth was found in a desk in the son's room).

         ¶6 The District Attorney subsequently charged Kendrick with numerous counts, including seven counts of attempted first-degree murder (extreme indifference), seven counts of attempted first-degree assault, five counts of felony menacing, and one count of illegal discharge of a firearm. Kendrick pleaded not guilty to all of the charges, and the case proceeded to trial twice.[2] What follows relates only to the second trial, which began the day after the first trial ended in a mistrial.

         ¶7 At the beginning of Kendrick's second trial, his counsel gave an opening statement in which he stated, "[A.B.], we expect her to testify that when things started boiling up, she walked [Kendrick] out to the car. We expect her to testify that she saw him shooting at the ground and saw sparks flying off the ground." Counsel further contended that none of the prosecution's expert testimony would repudiate A.B.'s statement.

         ¶8 The record suggests that Kendrick's expectations regarding A.B.'s testimony arose from an interview that defense counsel and his investigator had conducted with A.B. at counsel's office about six months prior to the trial. Counsel memorialized A.B.'s statements during that meeting in a memorandum labeled "Confidential attorney work product" on each of its five pages.

         ¶9 According to that memorandum, A.B. told the attorney and the investigator that "they were all pretty drunk that evening, even [Kendrick]." She did not, however, mention any drugs. She further said that "she would only talk about the things that she knew she could remember for sure." She then recalled that Kendrick "was walking around and talking with everyone" but that one of the women who was there told him that she "didn't talk to black guys" and then started giving Kendrick "a hard time." A.B. said that this woman "got in [Kendrick's] face, " and so A.B. told Kendrick to "just leave." Kendrick then started walking toward the door, and A.B. retrieved a gun that she had been holding in the closet for him. As Kendrick was leaving, however, the women other than A.B. "all started talking shit to him" and "ganging up on him." Only A.B., out of the five women, defended Kendrick.

         ¶10 The attorney and the investigator then asked A.B. several questions regarding the gun. A.B. clarified that while Kendrick was in the house, "the gun was never pointed directly anywhere or at anyone" and that "she never saw [Kendrick's] finger on the trigger." When Kendrick stepped outside and into a waiting car, however, she saw the gun aimed at the ground. She was standing "right by" the vehicle when the gun went off, and she heard approximately four or five shots and saw "sparks" on the ground when the gun went off. She was not frightened, however, because she knew Kendrick, "and he would never mean to hurt anyone."

         ¶11 In contrast to the statements that A.B. had made during the interview, when the prosecutor called her to testify at Kendrick's trial, she recalled few details of the night in question, except that she was drinking and using cocaine. For example, she did not remember whether Kendrick had a gun with him when he arrived at her house, and she denied storing one for him while he was there. Nor did she remember Kendrick's flirting with several of the women or his advances being rejected by them. And she did not recall giving Kendrick a gun and did not know whether he had pointed a gun at anyone in the house. A.B. agreed with the prosecutor that Kendrick eventually went outside where a car was waiting for him, but she did not remember whether he shot at the house after getting into the car.

         ¶12 Defense counsel began his cross-examination of A.B. by asking about her level of intoxication on the night in question, as well as her memory. He then asked, "And it sounds like you have spoken with me and my private investigator, . . . correct?" A.B. replied, "Yes, " at which point the prosecutor requested a copy of "the Defense report, " reasoning that she was "entitled to any Defense report of any witness that they intend to cross-examine." The court asked whether the defense had provided the report to the prosecution, and defense counsel replied that it was a defense report and that he was not required to produce it until he used it to impeach a witness. Without addressing the merits of either side's argument, the court then ordered defense counsel to give the memorandum to the prosecutor. Counsel did so and proceeded with his cross-examination.

         ¶13 In the course of this cross-examination, defense counsel asked A.B. about many of the statements that the memorandum attributed to her. A.B. remembered saying that one of the women at her house had "got[ten] into Mr. Kendrick's face as he was getting ready to leave" and that "the other girls" had "started talking shit to Mr. Kendrick." Although she did not recall saying that she had retrieved a gun for Kendrick, she acknowledged telling the investigator that the gun had never been "pointed directly at anyone while [Kendrick] was in the house" and that she "never saw a finger on the trigger." She also remembered saying that later, when she was outside standing next to the car, Kendrick had been aiming the gun at the ground when she "saw sparks on the ground" and heard several shots.

         ¶14 On re-direct examination, the prosecutor confronted A.B. about the inconsistent stories that she had told at trial, in her pre-trial statement to the defense, and in a notarized letter that she had sent to the judge shortly after the incident and in which she stated that she felt like she was "coerced" by the police "into making a false statement against Maurice Kendrick due to [her] being under the influence of a drug or alcohol." A.B. told the prosecutor that her memory was better at trial than it had been on the night in question because she had since talked about the events of that evening with "the girls." She now specifically denied that Kendrick had "shot up [her] house, " and when the prosecutor asked whether "bullets just magically ended up in [her] sliding glass door, " she demurred, reasoning that she "live[d] in the 'hood, so it [i.e., a shooting] could happen any time." The prosecutor then proceeded to suggest that A.B. had made up the fact that Kendrick was pointing the gun at the ground, a fact that she had revealed for the first time in her interview with the defense team, after learning of the "severity" of the "extreme indifference" charges.

         ¶15 After A.B.'s testimony was complete, the court took a recess. When the proceedings resumed, the court stated, outside the jury's presence, that it felt it needed to make a record regarding "two possible concerns."

         ¶16 First, the court reported that during the recess, a juror had seen Kendrick in handcuffs being escorted across the hallway by two sheriff's deputies. The court asked both sides for comment. Defense counsel responded that the incident had so prejudiced Kendrick that it required a mistrial. The prosecutor, in contrast, argued that under applicable case law, a mistrial was not required in these circumstances.

         ¶17 Second, the court returned to the issue of the defense memorandum that the court had required Kendrick to provide to the prosecutor. Defense counsel again argued that he should not have had to give that memorandum to the prosecution. He further stated, in response to the court's question as to whether A.B.'s testimony would be admissible in a re-trial, that he "would be arguing against that, because [he] would ...

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