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People v. Ehrnstein

Supreme Court of Colorado, En Banc

May 21, 2018

The People of the State of Colorado, Plaintiff-Appellant
v.
David Ehrnstein, Defendant-Appellee

          Interlocutory Appeal from the District Court Adams County District Court Case No. 16CR2367 Honorable Robert Kiesnowski, Judge

          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

          OPINION

          GABRIEL, JUSTICE

          ¶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.[1] 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.

         ¶2 Accordingly, we reverse the trial court's order and remand this case for further proceedings.

         I. Facts and Procedural History

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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 imagine so."

         ¶8 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.

         ¶9 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 ...


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