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People v. Epps

Supreme Court of Colorado, En Banc

December 18, 2017

The People of the State of Colorado, Plaintiff-Appellant
v.
Joshua Epps. Defendant-Appellee

         Interlocutory Appeal from the District Court Clear Creek County District Court Case No. 16CR86 Honorable John N. McMullen, Senior Judge.

          Attorneys for Plaintiff-Appellant: Bruce Brown, District Attorney, Fifth Judicial District Bryan Garrett, Deputy District Attorney Georgetown, Colorado

          Attorneys for Defendant-Appellee: The Law Offices of Sanam Mehrnia, P.C. Sanam Mehrnia Frisco, Colorado

          OPINION

          GABRIEL JUSTICE.

         ¶1 The District Attorney for the Fifth Judicial District brought Joshua Epps to trial on charges related to allegations that Epps had threatened his probation officer. Shortly after a mistrial was declared, the alleged victim's husband (who was also a witness called by the prosecution at trial) had an antagonistic encounter with Epps in the courtroom. The deputy district attorney prosecuting the case witnessed the encounter and later spoke to the alleged victim's husband about it. Epps subsequently endorsed the deputy district attorney as a witness both to the encounter and to the statements made to him by the alleged victim's husband. Epps then sought to disqualify the deputy district attorney on the basis of his expected testimony, which was to be offered to impeach the husband.

         ¶2 The People opposed both the effort to call the deputy district attorney as a witness and the motion to disqualify. The district court, however, ruled that Epps would be allowed to call the deputy district attorney to testify at trial and disqualified the entire district attorney's office, based, in large part, on the People's alleged failure to object to that proposed action. The People then filed this interlocutory appeal.[1]

         ¶3 We now reverse the district court's order. In disqualifying the district attorney's office, the district court relied on its erroneous understanding that the People had not objected to the disqualification. Moreover, we cannot say that the deputy district attorney's proffered testimony would be of sufficient consequence to deny Epps a fair trial. Accordingly, we conclude that the district court abused its discretion in disqualifying the district attorney's office and thus reverse the court's order and remand this case to that court for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶4 The People charged Epps with attempting to influence a public servant, stalking, and harassment, in connection with threatening Facebook messages that Epps had allegedly sent his probation officer. The case proceeded to a two-day jury trial. At trial, the People called four witnesses, including the probation officer's husband, William Washburn, who testified to the emotional distress that his wife had suffered as a result of the threatening messages. The case went to the jury, but the jury deadlocked and the judge declared a mistrial.

         ¶5 Immediately after the court's mistrial ruling, as a courtroom deputy prepared to escort Epps away, the deputy observed Washburn lock eyes with Epps. After a few seconds, Washburn started to move toward Epps. At that point, the deputy, in a loud and forceful manner, instructed Washburn to sit down and then said to Washburn that he was not helping matters and that the deputy "had room in [his] jail for [Washburn] that night." Washburn went back and sat down. The deputy did not hear Epps say anything during this encounter, which was captured on the courtroom's surveillance video.

         ¶6 The deputy district attorney prosecuting the case was present in the courtroom at the time of the incident and later spoke to Washburn about his encounter with Epps. In that conversation, Washburn told the deputy district attorney that Epps had lunged at him, threatened to kill his child, and winked. The surveillance video of the encounter and the courtroom deputy's observations thereof, however, tended to disprove Washburn's account.

         ¶7 Epps subsequently endorsed the deputy district attorney as a witness, with the intention of calling him at the retrial to impeach Washburn. In addition, Epps served the deputy district attorney with a subpoena for trial testimony and sought to disqualify him as the prosecutor, based on the fact that he would be a witness. The People moved to quash the subpoena and opposed the motion to disqualify.

         ¶8 The district court then convened a pretrial conference to consider the foregoing motions. At this conference, the court viewed the surveillance video and heard testimony from the courtroom deputy and the deputy district attorney about their perceptions of the incident, along with testimony from the deputy district attorney about his subsequent conversation with Washburn. Notably, upon being called as a witness, the deputy district attorney objected, asserting, "I can't be an attorney on a case and I can't be a witness on a case at the same time." The court, however, ordered the deputy district attorney to testify. At this point, the attorney clarified that he was "not conceding the special prosecutor motion" by testifying. The attorney also offered to stipulate to Washburn's statements, in order to avoid the need for a special prosecutor, but Epps refused the offered stipulation.

         ¶9 After hearing the evidence, the court, ruling from the bench, made detailed findings of fact and conclusions of law. As pertinent here, the court found that Washburn's proffered testimony about the encounter itself would be cumulative. The court further found that Epps had not lunged at Washburn or threatened to kill his child during the encounter, thereby rejecting the account that Washburn had conveyed to the deputy district attorney. In light of ...


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