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Date: 12-18-2017

Case Style:

The People of the State of Colorado v. Joshua Epps

Case Number: 2017 CO 112

Judge: Richard L. Gabrie

Court: Supreme Court of the State of Colorado

Plaintiff's Attorney: Bruce Brown, District Attorney
Bryan Garrett, Deputy District Attorney

Defendant's Attorney: Sanam Mehrnia 26

Description: The People charged Epps with attempting to influence a public servant, stalking,
and harassment, in connection with threatening Facebook messages that Epps had
allegedly sent his probation officer. The case proceeded to a two-day jury trial. At trial,
the People called four witnesses, including the probation officer’s husband, William
Washburn, who testified to the emotional distress that his wife had suffered as a result
of the threatening messages. The case went to the jury, but the jury deadlocked and the
judge declared a mistrial.
¶5 Immediately after the court’s mistrial ruling, as a courtroom deputy prepared to
escort Epps away, the deputy observed Washburn lock eyes with Epps. After a few
seconds, Washburn started to move toward Epps. At that point, the deputy, in a loud
and forceful manner, instructed Washburn to sit down and then said to Washburn that
he was not helping matters and that the deputy “had room in [his] jail for [Washburn]
that night.” Washburn went back and sat down. The deputy did not hear Epps say
anything during this encounter, which was captured on the courtroom’s surveillance
video.
¶6 The deputy district attorney prosecuting the case was present in the courtroom at
the time of the incident and later spoke to Washburn about his encounter with Epps. In
that conversation, Washburn told the deputy district attorney that Epps had lunged at


4
him, threatened to kill his child, and winked. The surveillance video of the encounter
and the courtroom deputy’s observations thereof, however, tended to disprove
Washburn’s account.
¶7 Epps subsequently endorsed the deputy district attorney as a witness, with the
intention of calling him at the retrial to impeach Washburn. In addition, Epps served
the deputy district attorney with a subpoena for trial testimony and sought to
disqualify him as the prosecutor, based on the fact that he would be a witness. The
People moved to quash the subpoena and opposed the motion to disqualify.
¶8 The district court then convened a pretrial conference to consider the foregoing
motions. At this conference, the court viewed the surveillance video and heard
testimony from the courtroom deputy and the deputy district attorney about their
perceptions of the incident, along with testimony from the deputy district attorney
about his subsequent conversation with Washburn. Notably, upon being called as a
witness, the deputy district attorney objected, asserting, “I can’t be an attorney on a case
and I can’t be a witness on a case at the same time.” The court, however, ordered the
deputy district attorney to testify. At this point, the attorney clarified that he was “not
conceding the special prosecutor motion” by testifying. The attorney also offered to
stipulate to Washburn’s statements, in order to avoid the need for a special prosecutor,
but Epps refused the offered stipulation.
¶9 After hearing the evidence, the court, ruling from the bench, made detailed
findings of fact and conclusions of law. As pertinent here, the court found that
Washburn’s proffered testimony about the encounter itself would be cumulative. The


5
court further found that Epps had not lunged at Washburn or threatened to kill his
child during the encounter, thereby rejecting the account that Washburn had conveyed
to the deputy district attorney. In light of this finding, the court ruled that it would
allow Epps to call the deputy district attorney at trial in order to impeach Washburn.
¶10 Having so ruled, the court expressed its inclination to disqualify the deputy
district attorney. A discussion then ensued as to whether the disqualification should
apply to the deputy district attorney alone or to the entire district attorney’s office. The
deputy district attorney explained that the pertinent statute, section 20-1-107(4), C.R.S.
(2017), requires the court, in the event of a district attorney’s disqualification, to
“appoint a special prosecutor from among the full-time district attorneys, assistant
district attorneys, or deputy district attorneys who serve in judicial districts other than
where the appointment is made.” Despite pointing this out to the court, the attorney
reiterated that he “maintain[ed] his objection to [the special prosecutor motion].” The
court, however, decided to appoint a special prosecutor and indicated that it would
enter a written order memorializing that day’s proceedings.
¶11 Three days later, the court entered its written order. As pertinent here, the court
found that the deputy district attorney had never objected to the motion to disqualify,
construed this lack of objection as “the substantial equivalent of a request by the district
attorney to be disqualified rather than being ordered to appear as a witness at trial,”
and thus granted Epps’s motion to disqualify the district attorney’s office.


6
¶12 The People then filed a Notice of Interlocutory Appeal, purportedly pursuant to
sections 16-12-102(2), 20-1-107(3), C.R.S. (2017), and C.A.R. 4.1, asking this court to
review the district court’s order.2
II. Analysis
¶13 We first address the standard of review governing orders disqualifying a district
attorney or district attorney’s office. We then discuss the three exclusive conditions on
which disqualification may be ordered pursuant to section 20-1-107(2).
A. Standard of Review
¶14 District courts have broad discretion in determining whether to disqualify a
district attorney from prosecuting a particular case. People v. Palomo, 31 P.3d 879, 882
(Colo. 2001). This court will not disturb a district court’s decision to disqualify a district
attorney’s office unless that court’s decision was manifestly arbitrary, unreasonable, or
unfair. Kendrick, ¶ 36, 396 P.3d at 1130. This standard is satisfied when, among other
things, the court misapplies the law. Id.
B. Disqualification of the District Attorney
¶15 Under section 20-1-107(2), a district court may only disqualify a district attorney
in a particular case (1) “at the request of the district attorney,” (2) “upon a showing that
the district attorney has a personal or financial interest” in the prosecution, or (3) if the
2 We note that C.A.R. 4.1 does not authorize an interlocutory appeal here. That rule is limited to appeals of district court rulings under Crim. P. 41(e) and (g) and Crim. P. 41.1(i). Nonetheless, the interlocutory appeal is properly before us under section 16-12-102(2), C.R.S. (2017), which allows the prosecution to file an interlocutory appeal from a ruling on a motion to disqualify a district attorney pursuant to section 20-1-107. People v. Kendrick, 2017 CO 82, ¶¶ 32–33, 396 P.3d 1124, 1130.


7
court “finds special circumstances that would render it unlikely that the defendant
would receive a fair trial.” Accord Kendrick, ¶ 37, 396 P.3d at 1130.
¶16 Here, the district court did not proceed past the first prong of section 20-1-107(2)
(i.e., “at the request of the district attorney”) because it concluded that the deputy
district attorney “did not object to the court granting the motion to disqualify.” The
court construed this as the “substantial equivalent of a request by the district attorney to
be disqualified rather than being ordered to appear as a witness at trial.” On this basis,
the court disqualified the district attorney’s office.
¶17 We conclude that the record does not support the district court’s conclusion on
this prong of section 20-1-107(2). Contrary to the district court’s finding, the deputy
district attorney objected to disqualification at least three times. First, he objected when
he filed the People’s written response to Epps’s motion to disqualify the district
attorney’s office and appoint a special prosecutor. Second, before he testified, the
deputy district attorney made clear that he was “not conceding the special prosecutor
motion.” And third, after testifying, and after the court had expressed its inclination to
disqualify him, the deputy district attorney again stated that he was “still maintaining
[his] objection to [the appointment of a special prosecutor].” In our view, these
statements unmistakably evinced the district attorney’s objection to the motion to
disqualify. See Rael v. People, 2017 CO 67, ¶ 17, 395 P.3d 772, 775 (noting that parties
need not use “talismanic language” to preserve an argument for appeal). Accordingly,


8
we do not agree that these statements could be construed as requests by the deputy
district attorney for disqualification.3
¶18 Nor can the district attorney’s disqualification be justified under the second
prong of section 20-1-107(2) (i.e., “upon a showing that the district attorney has a
personal or financial interest” in the prosecution). Our inquiry into this prong has
focused on “whether the members of the district attorney’s office would stand to
receive personal benefit or detriment from the outcome of a case.” Palomo, 31 P.3d at
882. Epps does not contend that the deputy district attorney or the district attorney’s
office as a whole would receive either benefit or detriment at the trial’s conclusion,
regardless of the outcome, nor would the record support such a contention. To the
contrary, the record shows that the deputy district attorney was “simply performing his
professional duty to execute the laws of the State of Colorado.” People in Interest of
N.R., 139 P.3d 671, 677 (Colo. 2006). Accordingly, the second prong of section
20-1-107(2) does not warrant the district attorney’s disqualification.
¶19 This leaves the third and final prong of section 20-1-107(2), which allows
disqualification if the court “finds special circumstances that would render it unlikely
that the defendant would receive a fair trial.” To justify disqualification on these
grounds, the “special circumstances” must be “extreme.” People v. Loper, 241 P.3d 543,
3 Nor would we construe the deputy district attorney’s statements concerning section 20-1-107(4) as a request for disqualification. Once the district court had made its decision to disqualify the deputy district attorney, the deputy district attorney offered his interpretation of the governing statute. We perceive nothing in his statements that could be construed as a concession to the disqualification motion, particularly given his contemporaneous statements reiterating his objection.


9
546 (Colo. 2010); see also People v. Chavez, 139 P.3d 649, 654 (Colo. 2006) (perceiving
extreme circumstances when an assistant district attorney had a previous attorney
client relationship with the defendant and that relationship was substantially related to
the prosecution then before the court). Thus, in the circumstances presented here, “the
determination of whether a district attorney should be disqualified in a criminal case
when he or a member of his staff appears as a witness depends upon whether the
testimony is of sufficient consequence to prevent a fair trial.” People v. Garcia, 698 P.2d
801, 805 (Colo. 1985); accord People v. C.V., 64 P.3d 272, 276 (Colo. 2003); see also
Riboni v. Dist. Court, 586 P.2d 9, 11 (Colo. 1978) (“The mere fact that the defense
intends to call the prosecutor as a witness does not, without more, dispose of the
[disqualification] question.”).
¶20 We have deemed proposed testimony to be of sufficient consequence when, for
example, two attorneys from the same district attorney’s office had been endorsed as
witnesses, one by the prosecution and the other by the defense, to testify to issues
bearing directly on the accused’s guilt or innocence. Pease v. Dist. Court, 708 P.2d 800,
802–03 (Colo. 1985). Specifically, in Pease, the prosecution’s attorney-witness would be
called to testify to incriminating statements that the accused had made to him, and the
defense’s attorney-witness would testify to exculpatory statements made by the accused
and to “abuses” allegedly committed by the prosecutor. Id. at 802. Because the
attorneys’ testimony would relate to contested issues and be “both relevant and
material to the issue of guilt,” we deemed it to be of sufficient consequence to prevent a


10
fair trial and consequently made absolute the district court’s order disqualifying the
district attorney’s office. Id. at 803.
¶21 Likewise, in Garcia, 698 P.2d at 806, we upheld an order disqualifying a district
attorney’s office when the prosecution planned to call a deputy district attorney to
testify at trial to prove an element of the charged offense. In that case, the People
charged Garcia with violating the conditions of her bond after she had failed to appear
for her sentencing hearing following her conviction on a separate charge. Id. at 804.
The prosecution endorsed the deputy district attorney as a witness to testify that Garcia
had been present at the proceeding when she was ordered to appear for the subsequent
hearing, that she “appeared to have no difficulty hearing or understanding the order,”
and that she did not, in fact, appear at the hearing. Id. at 806. Because this testimony
“was relevant and necessary to prove the culpable mental state of ‘knowingly,’ which
was an element of the offense charged” (i.e., that Garcia had “knowingly” failed to
appear), we held that the disqualification of the district attorney office’s was proper. Id.
¶22 Here, in contrast, Epps seeks to use the deputy district attorney’s testimony
solely to impeach Washburn. Specifically, Epps apparently intends to introduce the
surveillance footage of the encounter at issue and then to call the deputy district
attorney to testify to Washburn’s statements about the incident, which Epps contends
the surveillance video and the courtroom deputy’s testimony proved false. In this way,
Epps plans to attack Washburn’s credibility, in the hope of discrediting Washburn’s
testimony concerning the emotional distress that his wife suffered after receiving the


11
threatening Facebook messages. (Emotional distress is one of the necessary elements of
stalking under section 18-3-602(1)(c), C.R.S. (2017).)
¶23 For several reasons, we conclude that the foregoing proposed testimony would
not be of sufficient consequence to deny Epps a fair trial were the deputy district
attorney who is prosecuting the case to be required to testify, and therefore, the
prospect of such testimony does not constitute “special circumstances” under the third
prong of section 20-1-107(2).
¶24 First, unlike in Garcia, the deputy district attorney’s testimony would not be
offered to prove or disprove an element of any charged offense. Nor would such
testimony be directly relevant to the issue of guilt, as were the exculpatory and
incriminating statements at issue in Pease. Instead, Epps proffers the deputy district
attorney’s testimony solely to attack Washburn’s credibility; the testimony itself has “no
probative value on the issue of guilt.” Pease, 708 P.2d at 803.
¶25 Second, the People concede that Washburn made the statements that Epps seeks
to establish through the deputy district attorney’s testimony, rendering the facts that
Epps seeks to admit through the deputy district attorney’s testimony uncontested by
the parties. As a result, it is not at all clear that disqualification of the district attorney is
warranted or appropriate. See Colo. RPC 3.7(a)(1) (providing that a lawyer shall not act
as an advocate at a trial in which he or she is likely to be a necessary witness, unless the
testimony relates to an uncontested issue).
¶26 In this regard, our decision in Riboni is instructive. In Riboni, 586 P.2d at 10, a
vehicular homicide case, a deputy district attorney had interviewed a witness who said


12
that he had been driving the vehicle at the time of the accident. During a later interview
with a state highway patrolman, however, the same witness denied having been the
driver. Id. at 10–11. Riboni then sought to call the deputy district attorney to impeach
the witness’s later denial that he had been the driver and moved to disqualify the
district attorney and appoint a special prosecutor. Id. We concluded that Riboni had
not carried his burden of establishing either that he would probably need the deputy
district attorney’s testimony to impeach the witness or that if the deputy district
attorney were to testify while serving as the prosecutor in the case, Riboni would be
denied a fair trial. Id. at 12. In so ruling, we observed that “the People [had] conceded
that [the witness] had made the contradictory statements.” Id. In light of this
concession, we saw no reason to assume that the People would not likewise concede the
point at trial. Id. And if this occurred, then there would be no need for the deputy
district attorney’s testimony. Id. Even absent a concession, however, we noted that
others would have been available to impeach the witness’s statement that he had not
been the driver. Id.
¶27 Here, the People have offered to stipulate that Washburn made the statements to
the deputy district attorney about the encounter at issue. As in Riboni, therefore, the
deputy district attorney’s testimony may not be necessary. And in any event, on the
facts presented here, we cannot say that disqualification would be required even were
the deputy district attorney to testify to this uncontested matter. See Colo. RPC
3.7(a)(1).


13
¶28 Finally, contrary to Epps’s assertion, the deputy district attorney was not
necessarily the only witness to Washburn’s statements. Washburn himself was a
witness to those statements, and as was the case with the pertinent witness in Riboni,
the record does not allow us to conclude that Washburn would deny making the
statements or otherwise refuse to testify about them.4
¶29 For these reasons, we conclude that none of the three statutory conditions for
disqualification of a district attorney was established here. Accordingly, we hold that
the district court abused its discretion in disqualifying the district attorney’s office.
III

Outcome: For these reasons, we reverse the district court’s order disqualifying the district attorney’s office and ordering the appointment of a special prosecutor, and we remand this case for further proceedings consistent with this opinion.

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