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
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.
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.
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
Facts and Procedural History
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.
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).
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. What follows relates only to the
second trial, which began the day after the first trial ended
in a mistrial.
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.
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.
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.
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."
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.
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
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.
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
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."
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.
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 ...