People v. Sanders

515 P.3d 167

2022 COA 47

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Khalil Jamandre SANDERS, Defendant-Appellant.

Court of Appeals No. 18CA0525

Colorado Court of Appeals, Division IV.

Announced April 28, 2022

Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Khalil Jamandre Sanders, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree extreme indifference assault, illegal discharge of a firearm, and menacing.¹ We affirm the judgment of conviction.

I. Background

¶ 2 Sanders shot another motorist during a road rage incident. At the time of the shooting, he was driving down a two-lane road that narrowed to one lane. Jamie Vasquez, who was in the adjacent lane, aggressively and repeatedly cut Sanders off in an apparent attempt to keep him from passing her. In response, Sanders partially rolled down his window, thrust his gun through the opening, and fired a shot at Vasquez's car. The bullet hit Vasquez, causing serious injury.

¶ 3 The jury convicted Sanders of the tried charges and made findings that supported crime of violence sentence enhancers. On appeal, he contends that the trial court made several errors and violated his constitutional rights to due process and a fair trial. We address each contention in turn.

II. Disqualification of Trial Judge

A. Relevant Facts

¶ 4 Shortly after Sanders was charged, a district judge was assigned to his case. Approximately ten months later, at the close of the People's voir dire, the judge disclosed the following to counsel outside the presence of the venire:

A few years ago I was driving ... and I was shot at. Four bullets, one hit the car. There was not another person in the car, but ... there were people in the middle of the road about to go into my lane. It looked like they were fighting, and I beeped my horn to get out of the way and I hear pop, pop, pop, ping, and it hit the spoiler on my car. I had to duck. ... I feel like you need to understand there was a case filed. There was a ... police report, but there was never any filing of any charges. There was never any person that was identified as the shooter.

¶ 5 Defense counsel moved for the judge's disqualification pursuant to section 16-6-201(1)(d), C.R.S. 2021, and Sanders's constitutional rights to due process and a fair trial. Defense counsel stated, "I don't believe at this point that the Court can be unprejudiced with respect to the facts of this case based on her own personal experiences. ..."² Defense counsel also moved for a mistrial and leave to file a motion for a change of judge.

¶ 6 In an oral ruling, the judge denied the motions, stating that she (1) was not interested or prejudiced in any way; (2) had made the record out of an abundance of caution; (3) had no familiarity with Sanders; (4) was not familiar with any witnesses in this case as a result of her prior case; and (5) had "presided over numerous cases involving weapons, including guns and including cars" since the incident. The judge also noted that the incident did not involve two cars, occurred about three years earlier, and did not involve road rage.

¶ 7 On appeal, Sanders renews his trial arguments, asserting that a judge in a criminal case should be disqualified when she has experienced criminal conduct similar to the conduct at issue in the case before her.

B. Standard of Review and Preservation

¶ 8 We review de novo whether a motion to disqualify a judge raises legally sufficient grounds for disqualification. People v. Roehrs , 2019 COA 31, ¶ 7, 440 P.3d 1231.

¶ 9 As an initial matter, although a motion for disqualification generally must be supported by affidavits and made within fourteen days of a judge's assignment, we conclude that procedural deficiencies do not preclude our review here. See § 16-6-201(3) (requiring affidavits); Crim. P. 21 (requiring affidavits and good cause for late-filed motions). The motion was made after the fourteen-day deadline, but defense counsel raised the issue as soon as she learned the pertinent facts. It was therefore timely. People v. Dist. Ct. , 192 Colo. 503, 507, 560 P.2d 828, 831 (1977). The motion was also based solely on disclosures made in open court and arose due to the court's post-disclosure invitation to make an immediate record. Under these circumstances, the issue was preserved. See People in Interest of C.Y. , 2018 COA 50, ¶ 12, 417 P.3d 975 (finding the issue preserved under similar circumstances).

C. Law and Analysis

¶ 10 Unless the law precludes her participation, a judge has a duty to sit on a case once it is assigned. People v. Thoro Prods. Co. , 45 P.3d 737, 747 (Colo. App. 2001). Sanders bases his arguments on constitutional, legislative, and judicial limits on this duty to preside, arguing that each layer of limitation requires disqualification.

¶ 11 The outermost layer, which places the narrowest constraints on judges, requires that a judge be disqualified only when her participation violates constitutional due process guarantees.³ Williams v. Pennsylvania , 579 U.S. 1, 4, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016) ; No Laporte Gravel Corp. v. Bd. of Cnty. Comm'rs , 2022 COA 6M, ¶ 2, 507 P.3d 1053 (noting that the Due Process Clause marks "the outer limits for judicial disqualifications"). Due process is satisfied when a judge holds no actual bias. Williams , 579 U.S. at 8, 136 S.Ct. 1899. Here, Sanders does not challenge the finding that the judge held no actual bias. Given this finding, the judge's participation was not a violation of due process.

¶ 12 Colorado statutes and rules provide another layer of protection. Pursuant to section 16-6-201(1)(d), a judge "shall be disqualified to hear or try a case if ... [sh]e is in any way interested or prejudiced with respect to the case, the parties, or counsel." See also Crim. P. 21(b). Like the Due Process Clause, this statute and rule, by their terms, only protect litigants from participation by a judge with actual bias. See Roehrs , ¶ 10 (stating that C.J.C. 2.11(A) "goes further" than section 16-6-201(1)(d) and Crim. P. 21(b) because it permits challenges not grounded on actual bias); People v. Jennings , 2021 COA 112, ¶¶ 18-20, 498 P.3d 1164 (distinguishing actual bias from the appearance of bias and citing section 16-6-201(1)(d) and Crim. P. 21(b) as prohibiting actual bias). Thus, neither the statute nor Crim. P. 21(b) requires disqualification here.

¶ 13 Perhaps in recognition of this fact, Sanders essentially grounds his substantive appellate arguments on C.J.C. 2.11(A), which provides the broadest bases for recusal. Rule 2.11(A) states that a judge "shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned ...." This standard is objective and requires disqualification whenever a "reasonable observer might have doubts about the judge's impartiality." People in Interest of A.G. , 262 P.3d 646, 650 (Colo. 2011). The rule prohibits a judge from participating when her involvement raises the appearance of bias, even if she has no actual bias. Id.

¶ 14 The People argue that Rule 2.11(A) cannot justify reversal because, in Richardson v. People , 2020 CO 46, ¶ 39, 481 P.3d 1, the supreme court emphasized that judicial ethics rules are intended to preserve public confidence, not to protect the individual rights of litigants. Thus, "in the absence of evidence demonstrating actual judicial bias or prejudice, a trial judge's potential violation of these rules does not mandate reversal." Id.

¶ 15 We do not read Richardson to preclude consideration of the Code of Judicial Conduct (C.J.C.) with respect to disqualification. While Richardson held that a violation of the C.J.C. does not always mandate reversal, the Richardson court was addressing whether a judge must, sua sponte, recuse herself when a party has waived disqualification despite an appearance of bias. Id. at ¶¶ 35-39 ; see C.J.C. 2.11(C). Thus, Richardson turned, in part, on waiver issues not relevant here.

¶ 16 Copious precedent, which was not explicitly overruled in Richardson , suggests reversal may be warranted when a party moves for disqualification due to an appearance of bias and the judge, in fact, had a duty to disqualify herself. See, e.g. , A.G. , 262 P.3d at 650 ; People v. Julien , 47 P.3d 1194, 1197 (Colo. 2002) ("A judge must also consider the Code of Judicial Conduct sua sponte or in response to a disqualification motion in determining whether to serve on the case."); Zoline v. Telluride Lodge Ass'n , 732 P.2d 635, 640 (Colo. 1987) (considering the C.J.C. and concluding that "[e]ven if the judge's pecuniary interests alone were not grounds for disqualification, the facts give rise to the appearance of impropriety that requires us to reverse"); Wright v. Dist. Ct. , 731 P.2d 661, 663-64 (Colo. 1987) (requiring disqualification due, in part, to an appearance of impropriety). Thus, Sanders may properly base his arguments on Rule 2.11(A).

¶ 17 Nonetheless, we perceive no disqualifying appearance of bias here. Sanders has not cited, and we have not found, any Colorado precedent holding that an appearance of bias arises whenever a judge presiding over a criminal case has experienced criminal conduct similar to the conduct at issue. Such a bright line rule is too great an encroachment on a judge's duty to impartially preside over her assigned cases. See State v. Tappa , 2002 WI App 303, ¶ 14, 259 Wis.2d 402, 655 N.W.2d 223 (noting the impracticality of requiring a judge to disclose any crime of which she was ever a victim, regardless of how much time has passed); see also State v. Asta , 2018 UT App 220, ¶ 21, 437 P.3d 664 (noting that the Utah Code of Judicial Conduct may require recusal based on an appearance of...