People v. Cunefare
| Decision Date | 30 November 2004 |
| Docket Number | No. 03SC782.,03SC782. |
| Citation | 102 P.3d 302 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Harold CUNEFARE, Respondent. |
| Court | Colorado Supreme Court |
Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner.
David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, for Respondent.
In People v. Harold Cunefare, 85 P.3d 594 (Colo.App.2003), the court of appeals reversed Harold Cunefare's convictions for tampering with a witness or victim under section 18-8-707, C.R.S. (2004), and for forgery under section 18-5-102, C.R.S. (2004).
We granted certiorari to determine two issues: first, what the prosecution is required to prove to sustain a conviction under section 18-8-707(1)(a); and second, whether a letter to the prosecutor urging him to drop the charges against the defendant, signed by the defendant in the victim's name without her knowledge or consent, constitutes forgery under section 18-5-102.1
We now hold that section 18-8-707(1)(a) neither requires evidence that the witness or victim has been legally summoned to an official proceeding nor does it require evidence that the defendant's actions are interfering with actual testimony. With respect to the forgery charge, we hold that a letter to the prosecutor in which the defendant forged the victim's signature is an instrument that may affect a legal right or interest of the defendant within the purview of the forgery statute. Hence, we reverse the court of appeals' decision and reinstate both convictions.
In March of 1998, the defendant's ex-wife Karen Cunefare (the "victim") filed a complaint against the defendant for domestic assault. Out of that incident, the People charged the defendant with second degree assault, menacing, false imprisonment, wiretapping, and crime of violence with a deadly weapon. One month later, the victim called the victim-witness advocate and requested that the charges be dropped. She then sent a signed, notarized letter to the District Attorney stating that she did not tell the truth in her complaint and that she had made the statements out of anger. In August of that year, the defendant contacted the victim, who had moved to Tennessee, and asked that she recant again. He sent the victim a prepared letter recanting her statements and asked that she sign and send it to the prosecutor. The victim refused. The defendant then signed the victim's name without her consent or knowledge and sent the letter to the prosecutor. Subsequently, the People dropped the assault and related charges.
The People then charged the defendant with witness tampering and forgery based upon the defendant's efforts to have the charges dismissed, including the falsified letter. At trial, the victim testified that she did not author the April letter and that she had signed it out of fear. With respect to the August letter, the victim asserted that the defendant had contacted her and requested her to sign and forward the letter to the District Attorney but that she had torn it up without signing it. The victim opined that the defendant had signed her name on the letter and sent it to the District Attorney's office. The jury returned verdicts of guilty on both charges.
On appeal, the defendant argued that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed tampering with a witness and forgery. The court of appeals agreed. As to the tampering charge, the court held that "the People must prove an attempt to interfere with actual testimony, which is anticipated to be offered at a hearing, trial, or other proceeding," and that although the victim had given a "statement" to the prosecutor prior to her contact with the defendant, there was no evidence that the statement was sworn or otherwise constituted testimony. As to the forgery charge, the court concluded that the prosecution failed to present sufficient evidence that the letter to the prosecutor was a document that affected some right or status sufficient to fall within the forgery statute. The court of appeals therefore vacated both convictions.
We granted certiorari on the issues identified above and now conclude that the subsection of the tampering statute under which Cunefare was charged merely requires evidence that Cunefare induced or attempted to induce the victim to testify falsely or unlawfully withhold her testimony. It does not require evidence of `actual testimony.' We further conclude that the forgery statute prohibits a defendant from falsely executing a letter to the District Attorney's office intending to defraud that office into dismissing a legal action against him — and that such a letter does suffice as an instrument affecting his legal status. Accordingly, we reverse the court of appeals' vacation of Cunefare's convictions and remand for issuance of mandate and sentencing.
In the companion case of People v. Yascavage, No. 03SC559, 101 P.3d 1090, 2004 WL 2711049 (Colo.2004), we concluded that the general assembly intended section 18-8-707 as a whole to criminalize a wide range of activities related to interference with a witness or victim of a crime. We also held that each subsection of 18-8-707 presents an independent objective prohibited under the Tampering statute. Therefore, to sustain a conviction under section 18-8-707, the subject of the defendant's influence must be a person encompassed by the introductory provision and the defendant's objective must be prohibited in subsection (1)(a), (b), or (c) of section 18-8-707.
A "witness" covered by the statute is not just someone who is subject to legal process. Rather, "witness" means any natural person:
§ 18-8-702(2) (emphasis added). Therefore, the introductory portion of the statute contains no limitation that would require proof that the witness or victim be under legal process.
Section 18-8-707 then creates three distinct forms of witness tampering, each with different elements required for a conviction. Section 18-8-707(1)(a) prohibits the defendant from inducing or attempting to induce a witness or victim to "testify falsely or unlawfully withhold any testimony." Section 18-8-707(1)(b) prohibits the defendant from inducing or attempting to induce a witness or victim to "absent himself from any proceeding to which he has been legally summoned;" and section 18-8-707(1)(c) prohibits the defendant from inducing or attempting to induce a witness or victim to "avoid legal process summoning him to testify."
Our question on certiorari requires us to determine what the prosecution must prove to sustain a conviction under subsection (1)(a) of the statute. The court of appeals concluded that there must be evidence of "an attempt to interfere with actual testimony," which it defined as testimony "anticipated to be offered at a hearing, trial, or other proceeding where witnesses would be sworn." Cunefare, 85 P.3d at 596. In reaching this conclusion, the court of appeals relied upon People v. Moyer, 670 P.2d 785 (Colo.1983), and People v. Scialabba, 55 P.3d 207 (Colo.App.2002).
In Moyer, the defendant was charged with charitable fraud and witness tampering by grand jury indictment. 670 P.2d at 786-87. The witness tampering charge arose out of the defendant's statement to a potential witness notifying her that if she appeared before the grand jury he would sue her, and any others who appeared, for perjury. Id. at 788. The witness did testify before the grand jury, and also related the defendant's attempt to influence her not to do so. Id. at 790-91. The trial court dismissed the charge for lack of probable cause, and this court reversed, concluding that the statements attributed to the defendant were "designed to obstruct justice and were within the ambit of the statute." Id. at 792.
In Scialabba, the defendant was charged with assault against the victim and was prohibited from communicating with her. 55 P.3d at 208. The evidence established he wrote a letter and mailed it to the victim's address. Although the defendant used a different name for the victim (which he had used in the past), she believed the letter was intended for her. Id. The letter stated that if she were not to appear in court on the assault charges, the charges would be dropped, thereby "making things good" with him. Id. A month later, the defendant asked his mother to contact the victim and tell her not to appear in court. Id. at 211. The People added a count of witness tampering to the charges and the jury returned a verdict of guilty on that count. The defendant appealed, arguing in pertinent part that he should have been entitled to an abandonment instruction on the tampering charge. Id. at 210. The court of appeals disagreed, holding that the crime of tampering is an intentional attempt to interfere with a witness, without regard to the success or failure of the attempt. Therefore, the crime was complete when the attempt was made.
In both Moyer and Scialabba, the witnesses actually testified. However, there is nothing in either case that requires such testimony as an...
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