July 17, 2019

Colorado Court of Appeals: Attempts to Tamper with Witness Need Not Actually be Communicated to Victim

The Colorado Court of Appeals issued its opinion in People v. Brooks on Thursday, June 15, 2017.

Assault—Witness Tampering—Evidence—Attempt—Judicial Notice—Plea of Guilty—Grossly Disproportionate.

Brooks discovered that his girlfriend (the victim) was pregnant with another man’s child, and then argued with and assaulted her. While in jail, Brooks repeatedly telephoned the victim and others in an attempt to persuade them either to not testify against him on the domestic violence charge or to give false testimony. He also wrote letters to the victim to persuade her either to not testify or to testify falsely on his behalf. These letters were intercepted by a jail officer, and as a result, the victim did not receive them. Brooks was convicted of two counts of assault in the third degree against the victim, two counts of assault in the second degree against a peace officer, resisting arrest, violation of a protective order, and two counts of tampering with a witness or victim. The second tampering count was based on the letters. The court adjudicated Brooks a habitual criminal and imposed a mandatory 24-year sentence. Brooks requested and received an abbreviated proportionality review of the mandatory sentence. After that hearing the district court concluded that Brooks’s sentence was not disproportionate and denied him an extended proportionality review.

On appeal, Brooks argued that there was insufficient evidence to convict him of the second count of tampering with a witness or victim based on the letters because the victim never received them. The tampering with a witness or victim statute does not require that the “attempt” to tamper actually be communicated to the victim or witness. Therefore, the evidence was sufficient to convict Brooks on this charge.

Brooks also argued that the district court abused its discretion in taking judicial notice of the complete case files of his prior felony convictions and that without such improper judicial notice, there was insufficient evidence to support the habitual criminal adjudication. The registers of actions relevant to this case showed that Brooks’s two prior felony convictions were for distinct criminal offenses that occurred months apart. Thus, sufficient evidence supported his habitual criminal conviction.

Brooks further argued that his plea of guilty to felony theft from a person was constitutionally invalid and thus could not support his habitual criminal conviction. Brooks’s plea to theft was constitutionally valid because he entered it voluntarily and knowingly. The district court did not err in finding that it was a valid prior felony conviction under the habitual criminal statute.

Finally, Brooks argued that the district court erred in concluding that his sentence was not grossly disproportionate to his crimes and in not granting him an extended proportionality review. Tampering with a witness or victim is not a per se “grave or serious” offense. However, the facts underlying these crimes were grave or serious. The prosecution identified at least 250 phone conversations in which Brooks attempted to tamper with a witness or victim. Brooks continued tampering with the victim after the prosecution charged him with the first count of tampering and his phone privileges were discontinued. His conduct demonstrated a blatant disregard for the law and thus constituted a grave or serious offense. The Court of Appeals considered all of the convictions and the underlying circumstances as a whole and concluded that Brooks’s mandatory sentence was not grossly disproportionate.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Witness Tampering Charges Affirmed Where Potential Witness Told to Lie About the Important Stuff

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sparks on Friday, June 26, 2015.

Gary Sparks’ daughter, Stacy Ashley, was imprisoned pending trial on charges of distribution of a controlled substance with death resulting. H.L., Ms. Ashley’s daughter, was supposed to testify at trial that she saw her mother and the deceased exchange pills on the night the man overdosed. Three weeks before trial, Sparks took his granddaughter, H.L., to visit her mother in jail, and after seeing Ms. Ashley they went to dinner. H.L. reported that at dinner, Sparks told her “I heard you should only lie about the important stuff,” but Sparks said he only told her that everything would be okay and reassured her to have faith. H.L. never testified at her mother’s trial, but prosecutors eventually learned about the exchange with her grandfather and charged Sparks with two counts of witness tampering. Sparks was convicted and sentenced to 36 months’ imprisonment followed by two years of supervised release. Sparks appealed, arguing the evidence was insufficient to support his conviction and the jury was not properly instructed on an affirmative defense.

The Tenth Circuit first evaluated Sparks’ sufficiency claim. Sparks argued the evidence was insufficient to support his conviction because the phrase “you should only lie about the important stuff” was insufficient to qualify as an attempt to corruptly persuade. Sparks said that because he did not direct his granddaughter to lie he could not have “persuaded” her to do so. The Tenth Circuit disagreed. Analyzing the meaning of the word “persuade” in context of its prior precedent, the Tenth Circuit found no need for “an act, a threat, an emotional appeal, or persistent pleading” in order for a statement to be viewed as persuading. The Tenth Circuit found ample evidence to support the jury’s conviction based on the familial relationship, the proximity of the trial, and the timing of the statement right after seeing H.L.’s mother in jail.

Turning to Sparks’ contention that the jury was not properly instructed on the affirmative defense that his conduct consisted solely of lawful conduct encouraging the witness to testify truthfully, the Tenth Circuit again affirmed the district court. The Tenth Circuit found Sparks’ argument failed at the first prong of plain error review, because even viewing the evidence in the light most favorable to Sparks he did not encourage H.L. to testify truthfully.

The Tenth Circuit affirmed Sparks’ convictions.

Colorado Court of Appeals: Advising Person Not to Talk to Police Is Not Witness Tampering

The Colorado Court of Appeals issued its opinion in People v. Nozolino on Thursday, July 31, 2014.

Witness Tampering—Evidence—Protected Speech—Recusal.

In 2001, someone fired shots into the home of Nozolino’s ex-wife’s divorce attorney. Later that year, shots were fired into the home of Judge Gilbert Martinez of the Fourth Judicial District, who presided over portions of Nozolino’s divorce case. In 2002, the divorce attorney was shot in the face. In 2008, a man who allegedly had an affair with Nozolino’s ex-wife was fatally shot outside his home. Nozolino instructed numerous witnesses regarding these incidents not to cooperate or communicate with the police or provide any testimony. Based on these communications, the grand jury indicted Nozolino on five counts of witness tampering.

On appeal, Nozolino contended that there was insufficient evidence to support his convictions for counts 4 and 5, the witness tampering counts related to his mother and brother. The prosecution must present evidence that the defendant attempted to induce a witness either to testify falsely or to unlawfully withhold testimony. Nozolino sent an e-mail to his mother and brother recommending that they not cooperate with the police. Standing alone, the e-mails neither advise nor advocate unlawful withholding of testimony. Accordingly, Nozolino’s convictions for witness tampering with respect to counts 4 and 5 were vacated.

The Court of Appeals found that the witness tampering statute is facially constitutional. Therefore, Nozolino’s argument that the witness tampering statute is unconstitutional and infringes on his right to free speech failed.

Nozolino contended that his distribution of pre-printed statements to witnesses Feller and Shrecengost to invoke their right not to testify is akin to the public leafleting and is protected speech. However, Nozolino’s actions were not directed to the general public, did not occur in a public forum, and did not address issues of general public concern. Rather, Nozolino’s pre-printed statements were targeted at specific individuals, were distributed privately, and concerned matters of self-interest. The preprinted statements attempted to induce the witnesses to unlawfully withhold testimony in violation of the witness tampering statute. Therefore, they fall within the proscriptions of the witness tampering statute and the statute is not unconstitutional as applied to Nozolino.

Finally, the district court did not err in finding that the jury instruction regarding disrupting a lawful assembly did not “fit the facts of the case at all.” The judgment was affirmed in part and reversed in part, and the case was remanded to the district court with directions to enter judgment of acquittal on counts 4 and 5.

Summary and full case available here, courtesy of The Colorado Lawyer.