Interlocutory Appeal from the District Court Adams County
District Court Case No. 16CR2367 Honorable Robert Kiesnowski,
Attorneys for Plaintiff-Appellant: Dave Young, District
Attorney, Seventeenth Judicial District Cameron Munier,
Senior Deputy District Attorney Michael Whitney, Deputy
District Attorney Brighton, Colorado
Attorneys for Defendant-Appellee: Samler & Whitson, P.C.
Eric A. Samler Denver, Colorado
¶1 The District Attorney for the Seventeenth Judicial
District tried appellee David Ehrnstein on the charge of
incest against L.E. After a jury convicted him, Ehrnstein
filed a motion for a new trial, alleging that one of his
trial prosecutors and the victim advocate in his case had
instructed L.E. to avoid a defense subpoena. Prior to holding
a hearing on that motion, the trial court found that it was
compelled by the rules of professional conduct to appoint a
special prosecutor for purposes of the hearing. Pursuant to
sections 16-12-102(2) and 20-1-107(3), C.R.S. (2017), the
district attorney filed an interlocutory appeal in this
court, and we must now determine whether the trial court
abused its discretion in appointing the special
prosecutor. We conclude that the trial court abused
its discretion because it misapplied the law when it
concluded that Colo. RPC 3.7 required the appointment of a
special prosecutor for purposes of the hearing on the new
trial motion in this case.
Accordingly, we reverse the trial court's order and
remand this case for further proceedings.
Facts and Procedural History
As pertinent here, the district attorney charged Ehrnstein
and a jury convicted him of one count of incest. Thereafter,
Ehrnstein filed a motion for a new trial. In this motion, he
alleged that at trial, he had attempted to call a witness to
testify regarding prior inconsistent statements made by L.E.
He anticipated that the witness would testify that shortly
after the events at issue, L.E. had told the witness that she
did not remember any details of what had happened and that
she speculated that she must have been drugged. The
prosecution objected to Ehrnstein's request to call the
witness because Ehrnstein had not previously confronted L.E.
with those statements, as required before impeaching a
witness with prior inconsistent statements. See CRE
613(a). As a result, Ehrnstein attempted to serve L.E. with a
subpoena to secure her further appearance at trial in order
to lay a proper foundation for impeaching her testimony.
According to the new trial motion, Ehrnstein's
investigator attempted to serve the subpoena at L.E.'s
home. When the investigator knocked on L.E.'s door, an
unknown person answered and asked the investigator to wait
while he or she asked if L.E. would come to the door. L.E.,
however, did not come to the door. Instead, the investigator
apparently heard someone inside the residence make a
telephone call and inquire as to how to handle the situation.
The individual returned and told the defense investigator
that L.E. would not accept the subpoena.
Ehrnstein's motion further asserted that his counsel then
brought this issue to the attention of the trial court and
requested assistance from the court and the prosecutor in
securing service on L.E. The prosecutor objected, however,
and the court denied Ehrnstein's request.
Thereafter, according to the motion, two of Ehrnstein's
family members informed counsel that they were in court
during the discussion of the subpoena and overheard a
conversation between the victim advocate and one of the
deputy district attorneys prosecuting the case, in which the
deputy district attorney instructed the victim advocate to
direct L.E. not to answer the door of the residence. The
motion observed that statutory law prohibits attempting to or
inducing a witness to avoid legal process and that Ehrnstein
had suffered irreparable harm by the prosecutor's
actions, thereby necessitating a new trial.
The trial court convened a hearing to consider the motion for
a new trial, and prior to taking any testimony, the court sua
sponte asked Ehrnstein's counsel whether the trial court
"need[ed] to appoint a special prosecutor" for
purposes of the motion. Defense counsel responded, "I
After then taking testimony from the victim advocate and from
both of the family members who had reported the above-noted
conversation between the advocate and one of the prosecutors,
the trial court took a recess, and when it returned to the
bench stated, "Under the circumstances, I am compelled
to, over the government's objection, appoint a special
prosecutor and set this matter for an evidentiary
hearing." The court directed the prosecution to contact
another jurisdiction to consider its appointment as special
prosecutor and to set the matter for a status conference to
determine who the new prosecutor would be.
Prior to the scheduled conference, the district attorney
filed a motion to reconsider the trial court's
appointment of a special prosecutor, arguing that a
prosecutor could only be disqualified under the provisions of
section 20-1-107, C.R.S. (2017), and that the requirements of
that statute had not been met in this case. The motion
further argued that the allegations were "wholly without
merit" and were "merely a stall tactic designed to
circumvent the jury's verdict and the application of
justice in sentencing." Finally, the motion asserted
that "the ...