People v. Bergen

• Citation: 883 P.2d 532
• Decision Date: 21 April 1994
• Docket Number: No. 91CA1629,91CA1629
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wendy Anne BERGEN, Defendant-Appellant. . III
• Court: Court of Appeals of Colorado

Page 532

883 P.2d 532

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wendy Anne BERGEN, Defendant-Appellant.

No. 91CA1629.

Colorado Court of Appeals,

Div. III.

April 21, 1994.

Rehearing Denied June 2, 1994.

Certiorari Denied Nov. 15, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Robert M. Russel, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Haddon, Morgan & Foreman, P.C., Lee D. Foreman, Rachel A. Bellis, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Wendy Anne Bergen, appeals from the judgments of conviction entered upon jury verdicts finding her guilty of dogfighting, conspiracy to commit dogfighting, and accessory to dogfighting. We affirm.

Defendant was an investigative reporter with the news department of a Denver television station. In 1989, Denver passed an ordinance disallowing ownership of pitbull terriers, known as "pitbulls," a breed commonly used as fighting dogs. Shortly after the ordinance was enacted, defendant began work on a feature story concerning dogfighting in Colorado.

The evidence presented at defendant's trial established the following events. In search of the opportunity to videotape an actual Colorado dogfight, defendant contacted Humane Society officials and was told they could not help her contact any known Colorado dogfighters or provide her with any film of dogfights which had taken place in Colorado. Defendant was then informed by a friend, Mark Labriola, that he could arrange for her to attend a dogfight because he was in contact with pitbull owners.

Labriola learned of a person living in California who could help him get access to a dogfight. Labriola wired $50, provided by defendant, to this person in California and was given the name of Phil Walker, who bred and raised pitbulls in Lakewood, Colorado.

On September 21, 1989, defendant, accompanied by two cameramen, met Walker and Labriola at a restaurant and followed them to a parking lot along the South Platte River bike path in Sheridan, Colorado. Walker and Labriola had one pitbull in the car with them. Another pitbull was transported in a truck driven by a friend of Labriola and accompanied by a friend of Walker.

The cameramen filmed Walker making a grandiose statement regarding his status as a dogfighter. Labriola and Walker were then equipped with wireless microphones. Each of them took one of the pitbulls, and the entire party moved to a secluded spot near the river and away from the road. There, the pitbulls were released and allowed to fight each other, while both of the cameramen took videotape. Defendant, Labriola's friend and Walker's friend, along with Labriola and Walker, comprised the entire audience for the dogfight.

Within a minute, the larger of the two dogs had his jaws firmly clamped around the other dog's head. Walker then stopped the fight by forcing a screwdriver between the dog's back teeth to unlock the jaws.

Labriola opened his wallet for the camera and flashed several large bills implying some money had been lost and stating, "That's history." Defendant interviewed Walker on camera. Then defendant and the cameramen returned to the station.

Defendant and Labriola next contacted Walker for help in obtaining some videotape of fighting pitbulls in training. On October 11, 1989, defendant and one of her cameramen met with Walker to film a training fight in which the pitbulls were to be muzzled. Walker brought the same two pitbulls but did not have any muzzles. Defendant provided the money for the purchase of two muzzles at a pet supply store.

At a park in Lakewood, the dogs were muzzled and then, again, released to fight each other while the cameraman videotaped the event. The dogs fought for several minutes until one dog managed to get his mouth partially out of its muzzle, and the fight was stopped. One of the dogs was then transported back to Walker's house in a station owned vehicle.

Defendant also wanted to videotape pitbulls training on a treadmill. In the basement of one cameraman's home, defendant had the other cameraman videotape one of Walker's dogs on a treadmill. Another pitbull was held up to provide "encouragement" to run faster.

Defendant then was informed that attending a dogfight was illegal in Colorado. In a meeting with the Arapahoe district attorney and a fellow reporter, defendant asked if she or the station would be prosecuted for broadcasting a dogfight in connection with her story on pitbull fighting. Defendant was told that there would be no guarantee that she would not be prosecuted should she use a tape of a fight she had attended. Defendant then asked to go "off the record" and told the district attorney that she had been present at a sparsely attended dogfight in a basement in Sheridan.

Upon hearing that defendant had not been granted carte blanche to broadcast a dogfight videotape, her supervisors removed the story from the programming line up for the fall ratings period. One of defendant's cameramen, with the cooperation of Labriola, then attempted to videotape another fight without defendant's presence. Labriola took one of Walker's pitbulls and set it loose to fight with another pitbull. Videotape of this attempted, but largely unsuccessful, fight was not satisfactory for use by defendant as fight footage.

Although the story had been shelved, defendant did not abandon the idea. In a memorandum to her supervisors she advised them that she would be receiving an anonymous tape in the mail which would allow her to revive the pitbull story without breaking any laws. She predicted the resulting series would be a ratings success.

Defendant then took the videotape of the September fight and copied it to home video format. She copied and re-copied the tape several times to give it a more amateurish appearance. She wrote an anonymous letter to herself and inserted it and the tape into packaging in which she had recently received a tape for an unrelated story and claimed it had been received in the mail.

This videotape was incorporated into a four part series entitled "Blood Sport" which aired in the 10:00 p.m. newscasts during the spring 1990 ratings period. Also included was the treadmill sequence, the muzzled fight, and the attempted fight, which was represented to be a training method called a "roll."

Defendant explained on camera that the unmuzzled dogfight footage was sent to the station anonymously. Videotaped statements by Walker and Labriola were shown, with faces obscured and voices distorted, including Walker's braggadocio and Labriola's wallet scene. Also included were interviews with an investigator for a humane organization, videotape of non-fighting, family pet pitbulls and their owners, and pictures of persons who had been injured or maimed by pitbulls.

The broadcast of the series was greeted by a public uproar. Denver newspapers and other television stations reported that the dogfights had been set up and filmed solely for the purpose of the series. Defendant and her cameramen agreed to maintain the story that the videotape of the unmuzzled dogfight had been sent to the station anonymously.

When Arapahoe and Jefferson county law enforcement officials began an investigation, Labriola agreed to provide information in exchange for immunity. Several conversations between Labriola and defendant were recorded without defendant's knowledge during which the fabricated "anonymous videotape" story was discussed.

The Jefferson County district attorney's office brought the matter before a grand jury in June 1990. At that time, defendant and her cameramen received grand jury subpoenas. Although these subpoenas were later cancelled, and all three were released from any obligation to appear, they voluntarily agreed to testify. At their first appearances, all three testified that the tape was received anonymously. Later all three re-testified and admitted that the previous testimony had been untrue.

Defendant and the cameramen were charged with dogfighting and perjury. Walker was charged with dogfighting. The cameramen and Walker accepted plea agreements prior to trial. Defendant went to trial on eleven dogfighting and perjury related charges, and was convicted of the dogfighting charges here at issue.

I.

Defendant first contends that she was not properly advised of her rights as required by the Colorado grand jury statute, § 16-5-204, C.R.S. (1986 Repl.Vol. 8A). Thus, she asserts, prosecution of the dogfighting related offenses was prohibited. We disagree.

According to § 16-5-204(4)(a), C.R.S. (1986 Repl.Vol. 8A):

At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain [the advisement] prominently displayed on the front of the subpoena.

Section 16-5-204(4)(b), C.R.S. (1986 Repl.Vol. 8A) provides that:

Any witness who is not advised of his rights pursuant to paragraph (a) of this subsection (4) shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testifies or any evidence he produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him in any court.

Here, the grand jury initially issued to defendant a subpoena bearing an advisement of rights. After she requested an opportunity to examine her own previous statements in the possession of the prosecution pursuant to § 16-5-204(4)(h), C.R.S. (1986 Repl.Vol. 8A), however, she was notified that the subpoena had been cancelled but that she could still appear before the grand jury to explain her involvement if she chose to do so, and that an indictment might issue against her as a result of the investigation.

As the trial court found, after her subpoena was cancelled, defendant was under...