     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


                                         2
 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.

                                    5
¶ 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.




                                    17
