A Colorado Supreme Court judge said this week La Plata County’s district court might have violated the rights of a 39-year-old man who has been charged with two felony counts of sexual assault.
According to court records, Joshua Edward Kilgore was arrested in November 2018 for allegedly raping a woman at the Spanish Trails Inn, 3141 Main Ave., while she slept.
The woman told police she was staying with a friend at the hotel who had multiple roommates in his two-bedroom unit, one of whom was Kilgore.
On Nov. 5, 2018, the woman and Kilgore spent the day running errands and drinking alcohol. She told police she blacked out in the afternoon, but “came to” later and remembered eating dinner.
That night, the woman told police, she went to sleep on a mattress, fully clothed. The next morning, she awoke in different clothes, and Kilgore lay next to her. The woman said it was painful to urinate and semen was on her body, and she realized she had been assaulted.
The woman told police she had no recollection of the assault and had never given any indication to Kilgore she was interested in a sexual relationship. She was sent to Mercy Regional Medical Center for an examination.
Through court records, police learned Kilgore was a registered sex offender in Tennessee, where he had been convicted of felony aggravated sexual assault of a minor. He was also wanted on two warrants from Tennessee for failing to register as a sex offender.
According to a report from WRCBtv, Kilgore has been wanted since at least 2013, when he went on the run after failing to register as a sex offender. Reports indicate he pleaded guilty in 2008 to raping a 14-year-old, who then became pregnant.
Speaking to Durango police, Kilgore said he had been having consensual sex with the alleged victim at Spanish Trails Inn for several nights. He was arrested Nov. 8, 2018, and has since pleaded not guilty. He remained in jail as of Friday.
In a ruling this week, Colorado Supreme Court Justice Carlos A. Samour Jr. said the 6th Judicial District Court erred in ordering prosecutors and Kilgore’s attorneys to exchange evidence 30 days before a jury trial.
Judge Suzanne Carlson is the local judge overseeing the case.
Kilgore’s public defenders declined to comply with the court’s order, saying some of it went beyond what the law requires, and instead protested the ruling. They argued the order violated their client’s attorney-client privileges, his right to a fair trial and his due process rights, including his right to make the prosecution meet its burden of proof of guilt.
An appeal to the Colorado Supreme Court came down on the side of Kilgore. The ruling was handed down this week.
“In effect, (the order) forces Kilgore to share with the prosecution his trial strategy, i.e. how he plans to defend against the charges brought against him,” Samour wrote. “This is problematic. Gaining access to Kilgore’s exhibits prior to trial may help the prosecution meet its burden of proof.”
Samour said the district court erred and had no legal authority to order Kilgore to reveal these additional exhibits. Further, he said it appears the district court has ordered defendants to reveal their evidence as a standard matter of procedure for years.
“The disclosure order is concerning for an additional reason – it arguably infringes on Kilgore’s constitutional rights,” Samour wrote. “The district court, at a minimum, potentially infringed on Kilgore’s right to due process because his compliance with the disclosure order may help the prosecution meet its burden of proof.”
Colorado State Public Defender Megan Ring, who oversees the state administrative office, said in an emailed statement, “We agree with the legal analysis of the Supreme Court and hope this opinion will ensure that courts throughout the state respect a defendant’s constitutional rights and comply with our well-balanced rules of criminal procedure.”
Judge Carlson did not return calls seeking comment.
Sixth Judicial District Attorney Christian Champagne said, “While we believe the local courts’ orders were issued with the best intentions toward transparency and fairness for those involved in the trial process, we will work within the confines of the law and follow the guidance of the Colorado Supreme Court moving forward.”
It did not appear Kilgore had a trial date set of as Friday. According to VineLink.com, he is in custody at the La Plata County Jail.