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." 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
(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
shall be disqualified when she is "in any way interested
or prejudiced[3] with respect to the case, the parties, or
counsel."
¶
10 Second, Canon 2 of the Colorado Code of Judicial Conduct
states that "[a] judge shall perform the duties of
judicial office impartially, competently, and
diligently." Implementing that canon with respect to
disqualification, Rule 2.11(A) states as follows:
A judge shall disqualify himself or herself in any proceeding
in which the judge's impartiality might reasonably be
questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a
party or a party's lawyer, or personal knowledge of
facts that are in dispute in the proceeding.
C.J.C. 2.11(A) (emphasis added).[4] Thus, Rule 2.11(A)(1) goes
further than section 16-6-201(1)(d) and Crim. P. 21(b)(1)(IV)
in explicitly including not only personal bias and prejudice
as a basis for disqualification but also reasonable questions
regarding partiality that arise when a judge has
"personal knowledge of facts that are in dispute"
in a proceeding. Accordingly, CRE 605 provides that the judge
...