People v. Ehrnstein , 417 P.3d 813 ( 2018 )

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2 Opinions of the Colorado Supreme Court are available to the
3 public and can be accessed through the Judicial Branch’s homepage at
4 http://www.courts.state.co.us. Opinions are also posted on the
5 Colorado Bar Association’s homepage at http://www.cobar.org.
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7 ADVANCE SHEET HEADNOTE
8 May 21, 2018
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0 2018 CO 401
2 No. 18SA24, People v. Ehrnstein—Special Prosecutors—Colo. RPC 3.7—Post-trial
3 Proceedings.
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5 In this interlocutory appeal, the supreme court reviews the trial court’s order
6 appointing a special prosecutor for the purpose of litigating the defendant’s post-trial
7 motion for a new trial. In his motion, the defendant alleged that the prosecution had
8 improperly instructed a witness to evade a defense subpoena. The trial court concluded
9 that the Colorado Rules of Professional Conduct compelled it to appoint a special
0 prosecutor for the purposes of the hearing on this motion because, subject to exceptions
1 not pertinent here, Colo. RPC 3.7 prohibits an attorney from acting as both an advocate
2 and a witness during the same proceeding.
3 The supreme court now reverses the trial court’s order and remands this case for
4 further proceedings. The court concludes that the trial court abused its discretion in
5 appointing a special prosecutor because that court misapplied the law when it found
6 that Colo. RPC 3.7 required the appointment of a special prosecutor in the
1 circumstances present here. Specifically, Colo. RPC 3.7 serves to prevent prejudice that
2 arises from jury confusion in cases in which an attorney serves as both counsel and
3 witness. Because this proceeding arises in the context of a post-trial motion, that
4 concern is not implicated.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2018 CO 404 Supreme Court Case No. 18SA24
5 Interlocutory Appeal from the District Court
6 Adams County District Court Case No. 16CR2367
7 Honorable Robert Kiesnowski, Judge
8 Plaintiff-Appellant:
9 The People of the State of Colorado,
0 v.
1 Defendant-Appellee:
2 David Ehrnstein.
3 Order Reversed
4 en banc
5 May 21, 2018
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7 Attorneys for Plaintiff-Appellant:
8 Dave Young, District Attorney, Seventeenth Judicial District
9 Cameron Munier, Senior Deputy District Attorney
0 Michael Whitney, Deputy District Attorney
1 Brighton, Colorado
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3 Attorneys for Defendant-Appellee:
4 Samler & Whitson, P.C.
5 Eric A. Samler
6 Denver, Colorado
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4 JUSTICE GABRIEL delivered the Opinion of the Court.
¶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
1 We note that in their Notice of Interlocutory Appeal, the People framed the issue in
this case as follows: “Did the district court err when it disqualified the District
Attorney?” It is not clear to us, however, that the trial court in fact “disqualified” the
district attorney from all further proceedings in this case, rather than simply ruling that
the district attorney could not ethically participate in the hearing on the new trial
motion. Accordingly, for purposes here, we will treat the district court’s ruling as an
order disqualifying the district attorney and appointing a special prosecutor for
purposes of the hearing on the new trial motion only, and we limit our review to
whether the district court abused its discretion in entering that narrow order.
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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.
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¶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
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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 defendant has received a
fair trial and the case is no longer procedurally at a phase where the district attorney
can be disqualified.”
¶10 The parties subsequently appeared for the scheduled status conference, and at
that conference, the trial court denied the motion to reconsider. In so ruling, the court
stated:
We’re at post trial. When we have a situation where, for example, an
allegation of improper unethical conduct post trial issue [sic] comes to
light, the [disqualification] statute can’t possibly apply. We default to the
case law that gives me broad discretion under the circumstances to
appoint a special prosecutor if I deem that most appropriate.
There is an appearance, although I have not determined one way or the
other whether any unethical conduct occurred. There has been raised the
appearance of prosecutorial misconduct. You may not act as witness and
lawyer simultaneously. It’s the [sic] violation of the code of professional
responsibility under the circumstances.
¶11 The prosecution then filed a motion to stay the hearing on the merits of the new
trial motion as well as the present interlocutory appeal, asking this court to review the
district court’s order.
II. Analysis
¶12 We first address the standard of review governing orders appointing a special
prosecutor. We then discuss Colo. RPC 3.7 and conclude that because that Rule is
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generally inapplicable in the context of a post trial motion, the trial court abused its
discretion in relying on that Rule to appoint a special prosecutor on the facts of this
case.
A. Standard of Review
¶13 We review a district court’s decision to appoint a special prosecutor for an abuse
of discretion. See People v. Cty. Court, 902 P.2d 413, 413 (Colo. App. 1994) (affirming
the district court’s determination that the county court had abused its discretion by
requiring the appointment of a special prosecutor); People v. Cty. Court, 854 P.2d 1341,
1343 (Colo. App. 1992) (reviewing for an abuse of discretion a county court order that,
among other things, appointed a special prosecutor); cf. People v. Epps, 2017 CO 112,
¶ 14, 406 P.3d 860, 864 (noting that district courts have broad discretion in determining
whether to disqualify a district attorney from prosecuting a particular case). A district
court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or
unfair. Epps, ¶ 14, 406 P.3d at 864. This standard is satisfied when, among other things,
the court misapplies or misconstrues the law. See id.; DeLong v. Trujillo, 25 P.3d 1194,
1197 (Colo. 2001).
B. Appointment of Special Prosecutor
¶14 In this case, the trial court premised its decision to appoint a special prosecutor
entirely on the so-called “advocate-witness rule.” Fognani v. Young, 115 P.3d 1268,
1272 (Colo. 2005). The trial court concluded that under this rule, the assistant district
attorneys who had prosecuted Ehrnstein could not litigate the new trial motion because
a person cannot act as a witness and lawyer simultaneously. Although the court did
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not specifically reference Colo. RPC 3.7, the record makes clear that this is the Rule on
which the court relied, and we proceed to address whether the court correctly did so.2
¶15 Under Colo. RPC. 3.7(a), “[a] lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness,” subject to certain exceptions not
pertinent here. As we have explained, this Rule “is directed at the lawyer’s courtroom
activity, preventing the lawyer from acting as an ‘advocate at trial.’” Fognani, 115 P.3d
at 1276. “The basic reason for [this] limitation is to protect the integrity of the adversary
process by separating the lawyer’s role as an advocate from that of a witness.”
People v. Garcia, 698 P.2d 801, 805 (Colo. 1985).
¶16 The overriding purpose of Colo. RPC 3.7 is to avoid prejudice associated with
jury confusion. See Fognani, 115 P.3d at 1276–77. Accordingly, an attorney who is also
a necessary witness should not participate in activities that would reveal the attorney’s
dual role to a jury. See id. at 1277. Such concerns are generally not implicated,
however, in the context of pre- and post-trial litigation in front of a judge. Id. at 1270
2 We acknowledge that our prior case law raises a question as to whether a violation of
Colo. RPC 3.7 could provide a basis on which to disqualify a district attorney. See, e.g.,
People in Interest of N.R., 139 P.3d 671, 674–75 & n.3 (Colo. 2006) (noting that section
20-1-107 defines the sole grounds under which disqualification of a district attorney is
proper but leaving open the question of whether the legislature’s claim of exclusive
authority to determine the bases on which a district attorney may be disqualified
conflicts with the judiciary’s inherent authority to protect its dignity, independence, and
integrity); id. at 678–79 (Bender, J., concurring in part and dissenting in part)
(disagreeing that section 20-1-107 provides the sole means by which a trial court may
disqualify a district attorney and opining that trial courts retain their inherent authority
to act in this area absent legislative authorization). We need not decide that question
here, however, because we conclude that even if the Rule could provide a basis for
disqualification, the trial court erred in relying on that Rule to appoint a special
prosecutor on the facts of this case.
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(“Because the advocate-witness rule is directed at the attorney’s trial activity, we limit
the scope of that disqualification to advocacy at trial.”); see also People in Interest of
S.G., 91 P.3d 443, 450 (Colo. App. 2004) (“[Colo. RPC 3.7(a)] has been interpreted to
permit a lawyer who may be a necessary witness to continue to represent a client ‘in all
litigation roles short of trial advocacy.’”) (quoting Colo. Bar Ass’n Ethics Comm.,
Formal Op. 78 (revised 1997)); Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell,
239 F. Supp. 2d 1170, 1174 (D. Colo. 2003) (“Rule 3.7(a) is a prohibition only against
acting as an ‘advocate at trial.’ Its purpose is to avoid jury confusion at trial. It does not
automatically require that a lawyer be disqualified from pretrial activities, such as
participating in strategy sessions, pretrial hearings, settlement conferences, or motions
practice.”). Trial courts retain discretion, however, to preclude an attorney from
playing “a role in the presentation short of trial” when such activity could be admissible
at trial and would therefore “reveal the attorney’s dual role to the jury,” thus
undermining the purpose of Colo. RPC 3.7. Fognani, 115 P.3d at 1276–77.
¶17 Here, as we understand it, the trial court’s order appointing a special prosecutor
extended only to a post-trial hearing on a motion for a new trial. The jury had already
been excused and thus would never have learned that members of the district attorney’s
office had acted as both the prosecution and witnesses.
¶18 Accordingly, based on the above-discussed authorities, we conclude that Colo.
RPC 3.7 is inapplicable here, and because the trial court believed that that Rule
compelled its decision, we conclude that the trial court misconstrued the law and
therefore abused its discretion. See Epps, ¶ 14, 406 P.3d at 864; DeLong, 25 P.3d at 1197.
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¶19 In reaching this conclusion, we emphasize its narrow nature. Specifically, as
noted above, we are addressing only the trial court’s order, premised on Colo. RPC 3.7,
appointing a special prosecutor for purposes of the hearing on the new trial motion.
Although the parties have raised a number of other issues in their briefs, including the
applicability of section 20-1-107 generally and Ehrnstein’s right to call the deputy
district attorneys as witnesses during the hearing on the new trial motion, we view
those questions as beyond the scope of the narrow issue before us, and we express no
opinion on them.
III. Conclusion
¶20 For these reasons, we conclude that the trial court abused its discretion in relying
on Colo. RPC 3.7 to appoint a special prosecutor for purposes of the hearing on
Ehrnstein’s new trial motion. We therefore reverse that order and remand this case for
further proceedings consistent with this opinion.
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