[Copyrighted Material Omitted]
County District Court No. 15CR57, Honorable Theresa M.
J. Weiser, Attorney General, Katharine Gillespie, Senior
Assistant Attorney General, Denver, Colorado, for
A. Goldstein, Alternate Defense Counsel, Steamboat Springs,
Colorado, for Defendant-Appellant
1] Defendant, Dana Roehrs, appeals the judgment of
conviction entered on a jury verdict finding her guilty of
retaliation against a witness and harassment. We reverse the
judgment of conviction and remand with directions to grant
Roehrs a new trial before a different judge.
2] Roehrs was an interested party in a dependency
and neglect hearing at which Judge Theresa M. Cisneros
presided. At the hearing, Sergeant Couch, of the Teller
County Sheriffs Department, testified concerning Roehrss
presence at the scene of an investigation that he was
conducting. During Sergeant Couchs testimony, Roehrs stood
up, walked toward the witness stand, and said, "Youre a
liar. I am going to have your job." Judge Cisneros asked
Roehrs to leave the courtroom, a directive that Roehrs
followed. After testifying, Sergeant Couch left the
courtroom. On his way to the clerks office, he passed
Roehrs, who was sitting on a bench in the hallway. As he
passed, he heard Roehrs say, "Im going to fuck you
Sergeant Couch responded, "What did you say.... Are you
threatening me?" Roehrs responded, "Im going to
sue you." Sergeant Couch replied, "What did you say
before that?" Roehrs answered, "I said, I am going
to sue you."
3] As a result of Roehrss behavior at the
courthouse, the People charged her with retaliation against a
witness, harassment, and intimidating a witness. §
18-8-704(1)(a), C.R.S. 2018; § 18-8-706, C.R.S. 2018; §
18-9-111(1)(h), C.R.S. 2018. As the presiding judge at
the dependency and neglect hearing, Judge Cisneros witnessed
some of the behavior and statements that were at issue in the
later criminal trial on these charges. The substance, tone,
and intent of Roehrss courtroom statements were disputed at
trial, as was her location within the courtroom when she made
the statements. Moreover, according to Sergeant Couch, Judge
Cisneros later called him and the attorneys into her chambers
to discuss what had happened outside the courtroom. During
that meeting, Sergeant Couch told Judge Cisneros about the
incident with Roehrs. Nonetheless, Judge Cisneros was
assigned to preside over the trial on these criminal charges.
4] Before trial, Roehrss counsel moved to
recuse Judge Cisneros on the grounds that
because Judge Cisneros had personal knowledge of the facts to
be tried and was a material witness to Roehrss conduct,
there was an appearance of bias or prejudice. Judge Cisneros
denied the motion, ruling that Roehrs had failed to prove
bias or personal knowledge of disputed facts.
5] Judge Cisneros then presided over all proceedings
in the district court. The jury found Roehrs guilty of
retaliation against a witness and harassment. Roehrs was
acquitted on the charge of intimidating a witness. Judge
Cisneros sentenced Roehrs to four years in the custody of the
Department of Corrections and five years of parole for the
retaliation conviction, in addition to six months in county
jail for the harassment conviction, to run concurrently to
her four-year prison sentence.
6] On appeal, Roehrs contends that the trial court
erred in denying her motion to recuse and in imposing an
unduly punitive sentence. Because we reverse and remand for a
new trial based on the denial of the motion to recuse, we do
not reach the sentencing issue.
7] We review a trial courts ruling on a motion to
disqualify a judge de novo. Smith v. Dist. Court,
629 P.2d 1055, 1056 (Colo. 1981). When evaluating a motion to
recuse, we must bear in mind that a judge must not be tainted
by bias or partiality. People v. Julien, 47 P.3d
1194, 1197 (Colo. 2002). A criminal defendant has a
constitutional right to have an impartial judge sit on her
case at all stages of the proceedings. People v.
Hagos, 250 P.3d 596, 611 (Colo.App. 2009). "A fair
trial in a fair tribunal is a basic requirement of due
process." In re Murchison, 349 U.S. 133, 136,
75 S.Ct. 623, 99 L.Ed. 942 (1955).
8] Also essential to our review are the statutes,
rules, and codes that govern judicial conduct in Colorado.
Smith v. Beckman, 683 P.2d 1214, 1216 (Colo.App.
1984) (stating that when a judge considers the sufficiency of
a motion for disqualification, she must consider the
applicable statutes and rules of procedure as well as the
Code of Judicial Conduct). These laws delineate three
fundamental limitations on a judges authority to preside
over a criminal case where the judge has knowledge of the
allegedly criminal actions.
9] First, section 16-6-201(1)(d), C.R.S. 2018, and
Colorado Rule of Criminal Procedure 21(b)(1)(IV) provide that
a judge ...