Colo. R. Crim. P. 21
Colo. R. Crim. P. 21
Annotation I. Change of Venue. Right to fair and impartial jury is a constitutional right which can never be abrogated. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971). Change of venue subject to judicial discretion. Motion for change of venue due to local prejudice is a matter of judicial discretion. People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973). Trial court has inherent power to change venue on its own motion if such action is necessary to provide a fair trial and, in appropriate circumstances, may do so over the defendant's objections. Wafai v. People, 750 P.2d 37 (Colo. 1988). Question of prejudice one of fact. The question as to the existence of prejudice such as would dictate the granting of a motion for a change of venue is one of fact and rests within the sound discretion of the trial court. Nowels v. People, 166 Colo. 140, 442 P.2d 410 (1968); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Inquiry on review relating to fair trial. Regardless of the means imposed by the trial judge to insure the accused's constitutional right to a fair trial by a panel of impartial jurors, the critical inquiry on appellate review is whether the chosen means did in fact preserve the accused's right to a fair trial. People v. Botham, 629 P.2d 589 (Colo. 1981). When change of venue must be granted. If a community is prejudiced against a citizen, or if other circumstances are likely to deny him a fair and impartial jury trial, then a change of venue must be granted. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Sollitt v. District Court, 180 Colo. 114, 502 P.2d 1108 (1972). Denial of fair trial may be presumed when pretrial publicity is massive, pervasive, and prejudicial. People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973). Showing required when pretrial publicity not presumptively prejudicial. Where a defendant has not demonstrated the existence of massive, pervasive, and prejudicial publicity, which would create a presumption that he was denied a fair trial, he must establish the denial of a fair trial based upon a nexus between extensive pretrial publicity and the jury panel. People v. Botham, 629 P.2d 589 (Colo. 1981). If prejudice exists, it should show up in the voir dire examination. Nowels v. People, 166 Colo. 140, 442 P.2d 410 (1968). Burden of showing partiality of jurors met. Where it is shown that a significant number of jurors entertained an opinion of the defendant's guilt, had been exposed to pretrial publicity, and had knowledge of the details of the crime, the defendant has met his burden of showing the existence of an opinion in the minds of the jurors which raises a presumption of partiality. People v. Botham, 629 P.2d 589 (Colo. 1981). Failure to grant change of venue not error. People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973); People v. Medina, 185 Colo. 101, 521 P.2d 1257 (1974). Change of venue is available pursuant to writ of habeas corpus. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971). II. Substitution of Judges. Law reviews. For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a recent case relating to the personal interest of judge in case, see 15 Colo. Law. 1609 (1986). Rule to be strictly applied. This rule and its statutory counterpart on change of judge must be strictly applied. People in Interest of A.L.C., 660 P.2d 917 (Colo. App. 1982). Purpose of section (b) is to guarantee that no person is forced to stand trial before a judge with a bent of mind. People v. Botham, 629 P.2d 589 (Colo. 1981). Judge's duty to sit on case unless prejudiced. Unless a reasonable person could infer that the judge would in all probability be prejudiced against the petitioner, the judge's duty is to sit on the case. Smith v. District Court, 629 P.2d 1055 (Colo. 1981). Prejudice is mental condition or status, a certain bent of mind, which cannot be demonstrated, ordinarily, by direct proof. Smith v. District Court, 629 P.2d 1055 (Colo. 1981). To be distinguished from normal personal opinions. Prejudice must be distinguished from the sort of personal opinions that as a matter of course arise during a judge's hearing of a cause. Smith v. District Court, 629 P.2d 1055 (Colo. 1981). Discourteousness or rudeness do not dictate disqualification. It does not comport with sound judicial policy or the intent of either section (b) or § 16-6-201 to require disqualification of a judge solely on the basis of subjective conclusions that he was discourteous or rude. Carr v. Barnes, 196 Colo. 70, 580 P.2d 803 (1978). But appearance of possible prejudice can dictate disqualification. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). In reviewing the motion and affidavits, both the actuality and appearance of fairness must be considered. Even where the trial judge is convinced of his own impartiality, the integrity of the judicial system is impugned when it appears to the public that the judge is partial. People v. Botham, 629 P.2d 589 (Colo. 1981). Section (b) of this rule has uniformly been applied in disqualification cases. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). Rule measures timeliness of motion to disqualify. One apparent purpose of section (b) of this rule was to provide a standard by which to measure timeliness of a motion for disqualification, whether filed pursuant to § 16-6-201 , or to this rule. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). Later discovered or occurring disqualifying facts. When disqualifying facts do not occur or are not discovered by the moving party until after expiration of the time within which the motion and affidavits normally must be presented, application for a change of judge is timely if made as soon as possible after occurrence or discovery of those facts. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977); People v. Botham, 629 P.2d 589 (Colo. 1981). Good cause for delay in filing shown. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). Because prosecutor did not argue to the trial court that the motion was untimely and court did not consider the timeliness issue and further because the motion to recuse was triggered by comments the trial judge made at sentencing, good cause existed for the late filing. People v. Barton, 121 P.3d 230 (Colo. App. 2004). Timeliness and sufficiency of motion and affidavit deemed questions of law. Whether the motion is timely and whether it sufficiently states grounds for disqualification are questions of law subject to plenary review. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). A motion for recusal must be verified and supported by affidavits of at least two credible witnesses not related to defendant. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992). Whether recusal is required will depend on whether defendant's motion and supporting affidavits set forth legally sufficient facts upon which bias or prejudice may be implied. James v. People, 727 P.2d 850 (Colo. 1986); People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992). And facts in affidavits and motion taken as true. As a matter of judicial policy courts must take as true, for purposes of a motion to disqualify, facts stated in the affidavits and motion. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977); People v. Botham, 629 P.2d 589 (Colo. 1981). The facts set forth in affidavits supporting a motion to disqualify a judge are not subject to a trial court's inquiry, but are presumed to be true. Smith v. District Court, 629 P.2d 1055 (Colo. 1981); People v. Cook, 22 P.3d 947 (Colo. App. 2000); Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008). Thus, the trial judge engaging in this inquiry cannot pass upon the truth or falsity of statements of fact in the motion and supporting affidavits. Estep v. Hardeman, 705 P.2d 523 (Colo. 1985); S.S. v. Wakefield, 764 P.2d 70 (Colo. 1988); Brewster v. District Court, 811 P.2d 812 (Colo. 1991). The judge must confine the analysis to the four corners of the motion and supporting affidavits, and then determine as a matter of law whether they allege legally sufficient facts for disqualification. Klinck v. District Court, 876 P.2d 1270 (Colo. 1994). Recusal not discretionary where affidavits sufficiently allege prejudice. The trial judge has no discretion in the matter of recusing himself upon finding the affidavits sufficient under the rule to allege prejudice. He immediately loses all jurisdiction in the matter except to grant the change. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977); Brewster v. District Court, 811 P.2d 812 (Colo. 1991). Test of sufficiency of motion and affidavit. The test of the legal sufficiency of a motion to disqualify a judge is whether the motion and affidavits state facts from which it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with the petitioner. People v. Botham, 629 P.2d 589 (Colo. 1981); Smith v. District Court, 629 P.2d 1055 (Colo. 1981); People v. Baca, 633 P.2d 528 (Colo. App. 1981); People v. Hrapski, 718 P.2d 1050 (Colo. 1986). To be sufficient, the affidavits must state facts from which the respondent judge's prejudice may reasonably be inferred. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). Test is applied in Estep v. Hardeman, 705 P.2d 523 (Colo. 1985). There can be no presumption that a judge is intimidated by the outrage of the community in which the judge serves. Thus, motion for disqualification properly denied where there was no allegation that the judge was in fact intimidated by the community's animosity toward the defendant. People v. Vecchio, 819 P.2d 533 (Colo. App. 1991). Prejudgments regarding the quality of evidence to be heard are not consistent with the duty of a trial court to reach an unbiased decision after weighing all the evidence. Estep v. Hardeman, 705 P.2d 523 (Colo. 1985). Subjective conclusion of party not sufficient. Neither § 16-6-201 nor section (b) of this rule requires disqualification of a judge on the basis of a party's subjective conclusion that the judge is not impartial because of acts or statements made by the party. Smith v. District Court, 629 P.2d 1055 (Colo. 1981). And motion without supporting affidavits or facts insufficient. Where defendant filed no affidavits and alleged no facts which would reasonably indicate that the judge was interested or prejudiced with respect to the case, the parties, or counsel, the defendant's motion to disqualify the judge was insufficient as a matter of law. People v. Johnson, 634 P.2d 407 (Colo. 1981). The mere allegation that a trial judge engaged in an ex parte communication with a doctor who would testify as an expert witness is not alone sufficient to require recusal of the trial judge. Comiskey v. District Ct., 926 P.2d 539 (Colo. 1996). Recusal not required where the trial court's statements merely consisted of comments about a second co-defendant as part of the consideration of mitigating factors during sentencing of first co-defendant, and not statements expressing bias or prejudice about the second co-defendant, especially when judge specifically refused at the co-defendant's sentencing hearing to speculate as to co-defendant's role in the crimes charged. People v. Cook, 22 P.3d 947 (Colo. App. 2000). An appearance of impropriety cannot be inferred simply because the judge was a member of the general public that witnessed the fire started by defendant or because the judge assisted in general relief efforts. People v. Barton, 121 P.3d 230 (Colo. App. 2004). However, numerous other allegations of the judge's personal involvement and comments made by the judge during the sentencing hearing about his or her personal experience presented legally sufficient basis to create the appearance of prejudice that could have prevented the judge from dealing fairly with the defendant. People v. Barton, 121 P.3d 230 (Colo. App. 2004). Trial judge's presence in courtroom in which defendant allegedly threatened a witness did not require recusal. A mere order for an investigation of threat did not create a potential conflict of interest or indicate that the judge might become a witness. People v. Hagos, 250 P.3d 596 (Colo. App. 2009). Defendant's attorney may file affidavit in support of motion for substitution of judge where the attorney-affiant is not related to the defendant within the third degree by blood, adoption, or marriage. People v. Botham, 629 P.2d 589 (Colo. 1981). To disqualify, suit against judge must be probably successful. To create an adverse interest sufficient to disqualify a trial judge from presiding over a criminal trial, a suit brought against him by the accused person must have some probability of success. Watson v. People, 155 Colo. 357, 394 P.2d 737 (1964), cert. denied, 380 U.S. 966, 85 S. Ct. 1111, 14 L. Ed. 2d 156 (1965). Challenged judge may request hearing before another judge. A challenged judge in juvenile delinquency matters may, after self-disqualification, request a hearing before another judge on the issues raised in respondent's motion and affidavits. People in Interest of A.L.C., 660 P.2d 917 (Colo. App. 1982). Referring a motion for substitution to another judge for decision is not reversible error, even if it is not the procedure contemplated by this rule. Comiskey v. District Ct., 926 P.2d 539 (Colo. 1996). Disqualification where court only determining matters of law. It is unnecessary to determine whether a trial judge errs in not disqualifying himself where the error committed by him is not prejudicial error in that there is no disagreement over the facts and the sole material determinations to be made by the trial court are matters of law, in which case an appellate court is to determine whether the trial court correctly ruled on such matters. Robran v. People ex rel. Smith, 173 Colo. 378, 479 P.2d 976 (1971). A judge's bias or prejudice against defense counsel, while not generally requiring recusal, may so require when the judge's manifestation of hostility or ill will is apparent from the motion and affidavits and indicates the absence of the impartiality required for a fair trial. Brewster v. District Court, 811 P.2d 812 (Colo. 1991). A government attorney is not an "attorney otherwise engaged in the case" unless he has worked on it directly. While a partner in a law firm is said to be "engaged" in every case in which a member of his firm represents a party because he has a financial interest in the case's outcome, a government lawyer's compensation and clientele are set, and the prestige of the office as a whole is not greatly affected by the outcome of a particular case. Smith v. Beckman, 683 P.2d 1214 (Colo. App. 1984). Judges are not disqualified solely on the basis that they were formerly employed by the prosecutor's office. Instead, when employed by that office, the judge to be disqualified must have performed some role in the case or have obtained actual knowledge of disputed evidentiary facts of the case. People v. Julien, 47 P.3d 1194 (Colo. 2002). Where defendant failed to submit affidavits in accordance with requirements of § 16-2-201 and section (b) of this rule, and supplied allegations himself that record did not verify, there were insufficient grounds for disqualification. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992). Where defendant failed to present evidence to substantiate his claim that the judge knew of circumstances that would disqualify him from presiding in case and improperly filed a motion for case transfer with another trial court judge but failed to inform presiding judge of defendant's motion or to seek a decision on such motion, there were insufficient grounds for disqualification. People v. Harmon, 3 P.3d 480 (Colo. App. 2000). Mere filing of complaint with the judicial performance commission, without more, does not establish sufficient grounds for recusal. Further, county court judge's decision to recuse herself in seven prior cases does not lead to the conclusion that she should permanently recuse herself in all cases involving the attorneys. Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008). .