v. Mentzer , 2020 COA 91 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 11, 2020
2020COA91
No. 17CA2237, People v. Mentzer — Judges — Code of Judicial
Conduct — Disqualification; Criminal Procedure — Substitution
of Judges
A division of the court of appeals considers whether the trial
judge, a former member of the district attorney’s office, erred by not
recusing from this criminal case. The division concludes that the
judge should have recused because she served in a supervisory
capacity over the attorneys who investigated or prosecuted this case
at the time they filed the charges against the defendant. Therefore,
the division reverses the judgment of conviction and remands for a
new trial before a different judge.
The division also holds that the defendant did not clearly and
unequivocally invoke his right to counsel during a custodial
interrogation. So, his statements made during that interrogation
may be admitted at the new trial.
COLORADO COURT OF APPEALS 2020COA91
Court of Appeals No. 17CA2237
Larimer County District Court No. 13CR1643
Honorable C. Michelle Brinegar, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jarold Alan Mentzer,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE NAVARRO
Fox and Brown, JJ., concur
Announced June 11, 2020
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Antony Noble, Alternate Defense Counsel, Taylor Ivy, Alternate Defense
Counsel, Lakewood, Colorado, for Defendant-Appellant
¶1 Defendant, Jarold Alan Mentzer, appeals the judgment of
conviction entered on jury verdicts finding him guilty of internet
luring of a child and internet sexual exploitation of a child. We hold
that the trial judge, a former prosecutor, should have recused
herself from this case because she had served in a supervisory
capacity over the attorneys who investigated or prosecuted this case
at the time they filed the charges against Mentzer. Therefore, we
reverse and remand for a new trial.
I. Factual and Procedural History
¶2 Mentzer’s convictions stem from sexually explicit messages
and images sent to Loveland Police Detective Brian Koopman in
October 2013. Detective Koopman, posing as a fourteen-year-old
girl, responded to a lewd advertisement for a “casual connection” on
Craigslist. He gathered evidence from the ensuing internet-based
correspondence, obtained a warrant, and arrested Mentzer.
¶3 Mentzer’s case was tried to a jury, which found him guilty as
charged. See § 18-3-306(1), (3), C.R.S. 2019 (luring); § 18-3-
405.4(1), C.R.S. 2019 (exploitation). The trial court sentenced him
to sex offender intensive supervised probation for an indeterminate
period of ten years to life and to sixty hours of community service.
1
II. Recusal of Trial Judge
¶4 Mentzer contends that the trial judge erred by denying his
motion for disqualification. He argues that she was obligated to
recuse herself because, before joining the bench, she had served in
a supervisory capacity over the attorneys who conducted the
investigation or prosecution of his case. Reviewing de novo, we
agree. See People v. Roehrs, 2019 COA 31, ¶ 7.
A. Disqualification Principles
¶5 “We start with the precept, basic to our system of justice, that
a judge must be free of all taint of bias and partiality.” People v.
Julien, 47 P.3d 1194, 1197 (Colo. 2002). Colorado law offers
“interrelated guideposts for judicial disqualification.” Schupper v.
People, 157 P.3d 516, 519 (Colo. 2007); Roehrs, ¶¶ 8-11. We
discuss only those relevant here.
¶6 First, section 16-6-201(1)(d), C.R.S. 2019, and Crim. P.
21(b)(1)(IV) provide that a judge shall be disqualified when she is “in
any way interested or prejudiced with respect to the case, the
parties, or counsel.”
¶7 Second, Canon 2 of the Colorado Code of Judicial Conduct
states that “[a] judge shall perform the duties of judicial office
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impartially, competently, and diligently.” Applying that canon 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:
....
(5) The judge:
(a) . . . was associated with a lawyer who
participated substantially as a lawyer in the
matter during such association[.]
C.J.C. 2.11(A); see Roehrs, ¶ 10. Under the code, “impartiality”
means the “absence of bias or prejudice in favor of, or against,
particular parties or classes of parties, as well as maintenance of an
open mind in considering issues that may come before a judge.”
Roehrs, ¶ 10 n.4 (quoting C.J.C., Terminology).
¶8 The second guidepost identified above does not require a judge
to recuse herself simply because she was employed by the district
attorney’s office when the criminal case at issue was initiated.
Schupper, 157 P.3d at 519-20; cf. Julien, 47 P.3d at 1200
(knowledge of governmental attorneys is not imputed to other
attorneys in that office). On the other hand,
3
a judge must disqualify himself or herself . . . if
facts exist tying the judge to personal
knowledge of disputed evidentiary facts
concerning the proceeding, some supervisory
role over the attorneys who are prosecuting the
case, or some role in the investigation and
prosecution of the case during the judge’s
former employment.
Julien, 47 P.3d at 1198 (emphasis added); accord People v.
Flockhart, 2013 CO 42, ¶ 49.
¶9 A motion for disqualification must be supported by two
affidavits from credible people not related to the defendant, stating
facts showing grounds for disqualification. § 16-6-201(3). When
ruling on such a motion, “a judge must accept as true the factual
statements contained in the motion and affidavits.” Julien, 47 P.3d
at 1199. The court must then determine whether the statements
allege legally sufficient facts to warrant disqualification. Roehrs,
¶ 12.
B. Application
¶ 10 Mentzer filed two affidavits in support of his motion for
substitution of the trial judge.1 The motion and affidavits alleged
1 For the first time at oral argument, the People claimed that one of
the affidavits was deficient. We do not resolve this claim, for two
4
that (1) the judge served in the Larimer County District Attorney’s
Office from 1991 to December 2013; (2) she “supervised” and
“directed” the “sexual assault and crimes against children” unit;
and (3) she supervised that unit on November 12, 2013, when an
attorney in that unit filed the charges against Mentzer in this case.
¶ 11 During a hearing on this motion, the prosecutor noted that the
trial judge’s name did not appear on the charging document. But
the judge confirmed that she worked in the district attorney’s office
when this case was filed. She said, however, that she had “no
memory” of this case. She explained to Mentzer,
I don’t think I ever had any involvement in
filing the charges against you, in any of the
investigation that was done prior to charges
being filed. I just simply have no information
and no involvement in your case, ever, other
than being employed at the DA’s office. . . . [I]f
I had been involved in your investigation or,
you know, making charging decisions, then my
decision might be different. But that’s not the
case here.
As a result, the judge denied the motion.
reasons: (1) we do not entertain issues first raised at oral argument,
see People v. Becker, 2014 COA 36, ¶ 23; and (2) the prosecution
did not object on this basis below and, thus, Mentzer had no
opportunity to cure the alleged defect, see People v. Roehrs, 2019
COA 31, ¶¶ 14-15.
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¶ 12 We respectfully disagree with the judge’s decision. The motion
to disqualify and affidavits are legally sufficient to warrant
disqualification because they allege facts from which it may be
reasonably inferred that she had served “in a supervisory capacity
over attorneys conducting the investigation or prosecution” of this
case (e.g., the attorney who filed the charges). Julien, 47 P.3d at
1200; see Roehrs, ¶ 12. As our supreme court has recognized,
serving in such a supervisory capacity constitutes personal
participation in the prosecution of the case. Julien, 47 P.3d at
1200.2
¶ 13 Despite the People’s claim, the ultimate holding of Julien —
the judge at issue was not disqualified — is not contrary to our
conclusion. The judge in Julien had served as one supervising
attorney and team leader, among multiple supervising attorneys, in
the district attorney’s office. See id. at 1196. The judge, however,
had not been “a team leader of anybody who in fact was in the
2 To hold otherwise — for instance, to require recusal only when the
judge actually contributed to the charging decision — would
duplicate other grounds for disqualification, such as when “facts
exist tying the judge to . . . some role in the investigation and
prosecution of the case during the judge’s former employment.”
People v. Julien, 47 P.3d 1194, 1198 (Colo. 2002).
6
case.” Id. at 1196, 1200. Indeed, the judge stated expressly that he
had not supervised anyone involved in the case. Id. at 1196. In
contrast, the motion and affidavits here permit the reasonable
inference that the trial judge had directed and supervised the
specific unit in the office responsible for investigating and
prosecuting Mentzer’s case. Cf. In re Bulger, 710 F.3d 42, 49 (1st
Cir. 2013) (recognizing that a direct supervisor, “such as Chief of
Criminal Division, is more immediately accountable for the actions
of his own section than the United States Attorney is,” with a
correspondingly immediate difficulty in remaining impartial toward
a defendant).
¶ 14 Therefore, although the judge had no memory of this case, the
motion and affidavits indicate that she had supervised the attorney
who investigated and filed it. That is enough to require
disqualification. See also United States v. Arnpriester, 37 F.3d 466,
467-68 (9th Cir. 1994) (disqualifying judge who had supervisory
responsibility in the United States Attorney’s Office for the
investigation and prosecution of the crimes at issue), cited in Julien,
47 P.3d at 1198; State v. Ellis, 206 P.3d 564, 564 (Mont. 2009) (“As
Attorney General, McGrath oversaw and approved the filing of all
7
criminal appeals by the State of Montana. We conclude that this
oversight and approval constitutes ‘personal and substantial
participation’ . . . .”); In re K.E.M., 89 S.W.3d 814, 828 (Tex. App.
2002) (recognizing that grounds for a judge’s disqualification
include “supervisory authority by the judge as prosecutor at the
time the case was investigated, prosecuted, or adjudicated over
attorneys who actually investigated or prosecuted the same case or
a case arising out of the same set of operative facts”).
¶ 15 We emphasize that we do not discern actual bias on the trial
judge’s part.3 But, “[e]ven if the judge is entirely convinced of her
own impartiality, she must take care not to allow the justice system
to be impugned by an appearance of partiality.” Roehrs, ¶ 12. This
concern must be given the “‘highest consideration . . .’ to secure the
confidence of litigants and maintain public respect for the courts.”
Id. (quoting Smith v. Beckman, 683 P.2d 1214, 1216 (Colo. App.
1984)).
¶ 16 Given the appearance of bias resulting from the judge’s
supervisory role over the attorney who filed the charges against
3Hence, to the extent Mentzer asserts that the judge exhibited
actual bias against him, we reject that assertion.
8
Mentzer at the time the charges were filed, we must reverse the
judgment and remand for a new trial. See id. at ¶ 34 (reversing a
conviction due to the appearance of judicial bias).
III. Invocation of the Fifth Amendment Right to Counsel
¶ 17 Because the issue is likely to recur on remand, we address
Mentzer’s claim that his inculpatory statements to Detective
Koopman should not have been admitted into evidence. A different
judge denied Mentzer’s motion to suppress those statements before
this case was reassigned to the trial judge. So, the recusal issue
has no bearing on the suppression ruling.
¶ 18 Mentzer contends that his statements should have been
suppressed because he made them after he invoked his right to
counsel and the detective did not stop the interrogation. We are not
persuaded.
A. Standard of Review
¶ 19 Whether a trial court erred by refusing to suppress evidence
presents a mixed question of fact and law. People v. Leyba, 2019
COA 144, ¶ 12 (cert. granted May 26, 2020). We defer to the court’s
factual findings if they are supported by the record but review the
court’s legal conclusions de novo. Id. Where the statements in
9
question are recorded, and there are no disputed, relevant facts, we
are in as good a position as the trial court to decide the issue. Id.
B. Governing Law
¶ 20 The Fifth Amendment privilege against self-incrimination
includes the right to have counsel present during custodial
interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 469-73
(1966); People v. Kutlak, 2016 CO 1, ¶ 14. Law enforcement officers
must immediately cease questioning a suspect who has clearly
asserted the right to have counsel present during a custodial
interrogation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981);
Kutlak, ¶ 14.
¶ 21 Even so, the Edwards rule should not be applied to prevent
police questioning merely “when the suspect might want a lawyer.”
Kutlak, ¶ 23 (quoting Davis v. United States, 512 U.S. 452, 462
(1994)). As the Supreme Court explained in Davis, “if a suspect
makes a reference to an attorney that is ambiguous or equivocal in
that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of
questioning.” 512 U.S. at 459; accord Kutlak, ¶¶ 14-17.
10
[W]e assess[] whether a request for counsel is
ambiguous by considering the totality of the
circumstances, including such factors as the
words spoken by the interrogating officer; the
words used by the accused in referring to
counsel; the officer’s response to the accused’s
reference to counsel; the speech patterns of
the accused; the demeanor and tone of the
interrogating officer; the accused’s behavior
during interrogation; and the accused’s youth,
criminal history, background, nervousness or
distress, and feelings of intimidation or
powerlessness.
Kutlak, ¶ 24.
C. Additional Procedural History
¶ 22 After arresting Mentzer, Detective Koopman advised him of his
rights under Miranda. Mentzer said he “absolutely” wanted to talk
with the detective. Their conversation was audio-recorded, and
about twenty-seven minutes of it were admitted into evidence and
played for the jury. The appellate record contains only the redacted
recording admitted into evidence.
¶ 23 About five minutes in, Mentzer asked, “Do I need to seek legal
representation?” Detective Koopman replied, “If you’re asking if you
need to see a lawyer. Here’s the thing — that is a choice that you
have to make on your own.” Mentzer then asked whether he might
face criminal charges. The detective told him, “It’s quite possible,
11
yes.” Mentzer said he wanted to understand why. In the ensuing
conversation, he made incriminating admissions, including
admitting to posting ads on the “casual encounters” section of
Craigslist and using an email address that was used in the offenses.
¶ 24 Later, Mentzer asked, “Should I be thinking about jail time?
Or getting representation, sir?” After a brief pause caused by the
detective’s phone sounding alerts, the detective started to answer
him, but Mentzer interrupted to ask more questions about the case.
Mentzer made more incriminating statements. Eventually, he said
he wanted to stop talking, and Detective Koopman ended the
interrogation.
¶ 25 In denying his pretrial motion to suppress the statements, the
trial court found that Mentzer’s two references to “representation”
were “equivocal and ambiguous” and “not clear invocations of the
right to counsel.”
D. Analysis
¶ 26 Like the trial court, we conclude that, under the totality of the
circumstances, Mentzer’s two references to “representation” were
ambiguous or equivocal references to his right to counsel. Those
allusions to counsel would not have been understood by a
12
reasonable officer as a clear request for an attorney. So, Detective
Koopman was not required to stop questioning Mentzer.
¶ 27 Indeed, in Kutlak the supreme court determined that an
arguably stronger request for counsel was too ambiguous to require
the police to cease questioning. The defendant said he had a lawyer
on retainer and asked the police, “[C]an we get him down here now,
or . . . ?” Kutlak, ¶¶ 4, 27. The court concluded that the
defendant’s question and demeanor suggested that “he was merely
inquiring how long it might take to acquire counsel’s presence.” Id.
at ¶ 27. The court further reasoned that, while the defendant’s
statements could be construed as a request for counsel, “an equally
logical inference from [his] statements is that he was weighing his
options and asked a question to help him decide whether to request
his counsel’s presence. As such, his statements were ambiguous.”
Id.
¶ 28 Likewise, Mentzer did not unambiguously request counsel;
instead, he asked for the detective’s opinion about whether he
needed counsel. And, like the defendant in Kutlak, Mentzer’s
speech patterns, demeanor, and tone reflected a “general
uncertainty” and nervousness. Id. at ¶ 27. These facts tend to
13
show that Mentzer was undecided about whether he wanted to
invoke his right to counsel and he sought further information to
help him decide whether to request counsel. See id.4
¶ 29 Moreover, although Mentzer might not have had prior
experience with the criminal justice system, he is a native English
speaker who worked in electronics manufacturing as a machine
operator and had leadership tasks. So, as in Kutlak, any ambiguity
in Mentzer’s statements “likely did not stem from confusion or any
language barrier, but rather, from indecision with respect to his
right to counsel.” Id. at ¶ 30; see also Davis, 512 U.S. at 462
(holding that the defendant’s remark — “Maybe I should talk to a
lawyer” — was not a request for counsel).
¶ 30 We acknowledge Mentzer’s claim that the detective tricked or
manipulated him into making incriminating statements by
responding to his questions in such a way as to “keep him talking.”
4 The supreme court also noted in People v. Kutlak, 2016 CO 1,
¶ 27, that the defendant said he was going to “take a dice roll” and
continue the interview, which indicated his conscious decision not
to invoke his right to counsel. Here, while Mentzer did not mention
rolling dice, he consciously decided to ask questions about the facts
of this case immediately following the detective’s explanation that
seeking counsel was entirely Mentzer’s decision.
14
Because Mentzer did not clearly invoke his right to counsel,
however, the detective was permitted to continue questioning him.
Moreover, the detective’s responses that were allegedly designed to
keep Mentzer talking were not made in reply to his reference to
counsel but in response to his questions about why he might be
charged criminally and about the facts of the case. Mentzer’s
questions were consistent with an attempt to figure out whether he
should seek an attorney. In sum, then, his questions indicated only
that he might want a lawyer. See Kutlak, ¶ 23.
¶ 31 We are not persuaded otherwise by Mentzer’s reliance on
People v. Fish, 660 P.2d 505 (Colo. 1983), abrogated on other
grounds by People v. Hopkins, 774 P.2d 849, 852 (Colo. 1989), and
People v. Wood, 135 P.3d 744 (Colo. 2006).
¶ 32 Fish is factually distinguishable and legally obsolete. There,
the defendant, while being advised of his Miranda rights, asked
officers if he needed an attorney. Fish, 660 P.2d at 507. One or
both of the officers said “no.” Id. at 507, 509. The supreme court
found it significant that the defendant believed he was working for
the sheriff because he had an existing “working relationship” with
the investigating officers. Id. at 509. Considering the totality of
15
these circumstances, the supreme court concluded that “the
defendant’s question was sufficient to put the officers on notice that
the defendant intended to exercise his right to counsel . . . .” Id. In
contrast, Detective Koopman never advised Mentzer that he did not
need an attorney; the detective said that whether to seek an
attorney was Mentzer’s decision alone. And there was no prior
working relationship between Mentzer and the detective such that
Mentzer could believe he was working for the police.
¶ 33 Furthermore, and perhaps more importantly, at the time Fish
was decided, “[a]n ambiguous indication of an interest in having
counsel” was sufficient to require the cessation of further
questioning. Id. (emphasis added). Our supreme court has since
expressly overruled that proposition. Kutlak, ¶¶ 18-23. Thus, the
Fish court’s determination that the defendant’s question was
sufficient to invoke his right to counsel rests on an outdated legal
principle that we cannot follow. See Kutlak, ¶ 23 (“Davis made clear
that the Edwards rule should not be applied ‘to prevent police
questioning when the suspect might want a lawyer.’ In short,
‘[u]nless the suspect actually requests an attorney, questioning may
16
continue.’ To the extent our prior cases suggest otherwise, they are
hereby overruled.”) (citations omitted).
¶ 34 In Wood, the defendant told a detective, “I definitely need a
lawyer, right?” 135 P.3d at 747. On appeal the People conceded
that this constituted an invocation of the right to counsel, and the
supreme court accepted the concession without further analysis.
Id. at 752. In doing so, the court cited only People v. Adkins, 113
P.3d 788 (Colo. 2005), which was later overruled in Kutlak. See
Kutlak, ¶¶ 20-23. Under these circumstances, we do not believe
Wood provides guidance on the issue before us. Instead, we must
apply Kutlak.
¶ 35 Given all this, we conclude that the trial court properly denied
the motion to suppress.
IV. Conclusion
¶ 36 The judgment is reversed, and the case is remanded for
further proceedings before a different judge that are consistent with
this opinion.
JUDGE FOX and JUDGE BROWN concur.
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