People v. Roehrs

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          Teller County District Court No. 15CR57, Honorable Theresa M. Cisneros, Judge

         Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant-Appellant

         OPINION

         RICHMAN, JUDGE

         [¶ 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.

          I. Background

         [¶ 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 Sheriff’s Department, testified concerning Roehrs’s presence at the scene of an investigation that he was conducting. During Sergeant Couch’s testimony, Roehrs stood up, walked toward the witness stand, and said, "You’re 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 clerk’s office, he passed Roehrs, who was sitting on a bench in the hallway. As he passed, he heard Roehrs say, "I’m going to fuck you up."

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Sergeant Couch responded, "What did you say.... Are you threatening me?" Roehrs responded, "I’m 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 Roehrs’s 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.^[1] 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 Roehrs’s 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, Roehrs’s counsel moved to recuse^[2] Judge Cisneros on the grounds that because Judge Cisneros had personal knowledge of the facts to be tried and was a material witness to Roehrs’s 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.

          II. Recusal

          A. Applicable Law

         [¶ 7] We review a trial court’s 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 judge’s 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 ...