v. Mentzer

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.

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 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,

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 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

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 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).

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 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

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 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.

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 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.

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 [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,

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 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

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 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.

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 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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