People v. Iannicelli

• Decision Date: 30 November 2017
• Docket Number: Court of Appeals No. 16CA0210, Court of Appeals No. 16CA0211
• Citation: 454 P.3d 314
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mark IANNICELLI, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant, v. Eric Patrick Brandt, Defendant-Appellee.
• Court: Colorado Court of Appeals

454 P.3d 314

The PEOPLE of the State of Colorado, Plaintiff-Appellant,

v.Mark IANNICELLI, Defendant-Appellee.

The People of the State of Colorado, Plaintiff-Appellant,

v.Eric Patrick Brandt, Defendant-Appellee.

Court of Appeals No. 16CA0210

Court of Appeals No. 16CA0211

Colorado Court of Appeals, Division VII.

Announced November 30, 2017

Mitchell R. Morrissey, District Attorney, Beth McCann, District Attorney, Katherine A. Hansen, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellant.

Killmer, Lane & Newman, LLP, David A. Lane, Denver, Colorado, for Defendant-Appellee.

Opinion by JUDGE J. JONES

¶ 1 The People charged defendants, Mark Iannicelli and Eric Patrick Brandt, with jury tampering.¹ The charges were based on allegations that defendants handed out fliers discussing the concept of "jury nullification" to persons entering a courthouse. The People appeal the district court's dismissal of the charges.

¶ 2 We construe the jury tampering statute, section 18-8-609, C.R.S. 2017, to require that the People prove that a defendant attempted to influence a juror's or potential juror's action in a case in which the juror had been chosen to serve on a jury in a particular case or in which the potential juror had been selected as a member of a venire from which a jury in a particular case would be chosen. Because the People didn't charge defendants with such conduct, we affirm the district court's orders.

I. Background

¶ 3 Defendants are members of the "Fully Informed Jury Association," a group that advocates what is commonly referred to as jury nullification. They believe that jurors aren't obligated to follow a court's jury instructions on the law, but may decide cases based on their own views of whether the laws at issue are just and fair.

¶ 4 According to the People, defendants stood by the main entrance to the Lindsey-Flanigan Courthouse in Denver next to a cardboard stand marked "Juror Information." They asked people entering the building if they were reporting for jury duty or if they'd already been chosen to serve as a juror.² If a person answered "yes" to either, one of the defendants would give them one of three pamphlets containing information about jury nullification. Those pamphlets included phrases such as the following:

• "Juror nullification is your right to refuse to enforce bad laws and bad prosecutions."

• "Judges say the law is for them to decide. That's not true. When you are a juror, you have the right to decide both law and fact."

• "Once you know your rights and powers, you can veto bad laws and hang the jury."

• "When you're questioned during jury selection, just say you don't keep track of political issues. Show an impartial attitude. Don't let the judge and prosecutor stack the jury by removing the thinking, honest people."

• "Instructions and oaths are designed to bully jurors and protect political power. Although it all sounds very official, instructions and oaths are not legally binding."

• "So, when it's your turn to serve, be aware: 1. You may, and should, vote your conscience; 2. You cannot be forced to obey a ‘juror's oath’; 3. You have the right to ‘hang’ the jury with your vote if you cannot agree with other jurors."

• If asked about jury nullification, "the best answer to give is: ‘I have heard about jury nullification, but I'm not a lawyer so I don't think I fully understand it.’ "

¶ 5 Based on this alleged conduct, the People charged each defendant with seven counts of jury tampering. Each count alleged that on a particular date the defendant communicated with a named "JURY POOL MEMBER" intending to influence that person's vote, opinion, decision, or other action in "a case" in violation of section 18-8-609.

¶ 6 Defendants moved to dismiss the charges, arguing that the jury tampering statute is unconstitutional on its face and as applied to their alleged conduct.

¶ 7 The parties briefed the issues and submitted exhibits, which included the three pamphlets. Following a hearing, the district court ruled that the statute isn't unconstitutional on its face. But it also ruled that the statute is unconstitutional as applied to defendants' conduct, which it determined to be speech protected by the First Amendment.³ The district court therefore dismissed the charges.

II. Discussion

¶ 8 The People's appeals challenge the district court's ruling that the jury tampering statute is unconstitutional as applied to defendants' conduct. After considering the parties' briefs, we asked the parties to brief two other questions: (1) is the prohibition of the jury tampering statute limited to attempts to influence a person's vote, opinion, decision, or other action in a specifically identifiable case; and (2) if so, did the People charge defendants with attempting to so influence a juror in a specifically identifiable case? After considering the parties' supplemental briefs on those questions, we conclude that the answer to the first question is yes, and that the answer to the second question is no. As a result, we affirm the district court's orders dismissing the charges without addressing whether the statute is unconstitutional as applied to defendants' alleged conduct. See People v. Heisler , 2017 COA 58, ¶ 44, ––– P.3d –––– (we may affirm a district court's ruling for any reason supported by the record); see also People v. Valdez , 2017 COA 41, ¶ 6, 405 P.3d 413 (a court should address constitutional issues only if necessary) (citing Developmental Pathways v. Ritter , 178 P.3d 524, 535 (Colo. 2008), and People v. Lybarger , 700 P.2d 910, 915 (Colo. 1985) ).

A. Our Jurisdiction

¶ 9 Section 16-12-102(1), C.R.S. 2017, provides that "[t]he prosecution may appeal any decision of a court in a criminal case upon any question of law." So prosecutorial appeals under that section are "necessarily limited to questions of law only." People v. Martinez , 22 P.3d 915, 919 (Colo. 2001). The questions before us are entirely questions of law, and therefore we have jurisdiction.

B. The Merits

1. Standard of Review

¶ 10 The People's challenge to the district court's ruling presents questions of statutory interpretation. We review such questions de novo. Marsh v. People , 2017 CO 10M, ¶ 19, 389 P.3d 100.

2. Applicable Statutes

¶ 11 The jury tampering statute, section 18-8-609(1), provides in relevant part as follows: "A person commits jury-tampering if, with intent to influence a juror's vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case." Section 18-8-601(1), C.R.S. 2017, defines a "juror" for purposes of part 6 of article 8 of title 18⁴ as

any person who is a member of any jury or grand jury impaneled by any court of this state or by any public servant authorized by law to impanel a jury. The term "juror" also includes any person who has been drawn or summoned to attend as a prospective juror.

3. Analysis

¶ 12 We construe a statute to give effect to the General Assembly's intent, which we discern by looking first to the statute's language. Mosley v. People , 2017 CO 20, ¶ 16, 392 P.3d 1198. "If the language is clear and unambiguous, we must interpret the statute according to its plain meaning." Marsh , ¶ 20. "To reasonably effectuate the legislature's intent, a statute must be read and considered as a whole, and should be interpreted to give consistent, harmonious, and sensible effect to all its parts." Mosley , ¶ 16. "And we consider the words or phrases at issue in context—both in the context of the statute of which the words or phrases are a part and in the context of any comprehensive statutory scheme of which the statute is a part." People v. Berry , 2017 COA 65, ¶ 13, ––– P.3d ––––.

¶ 13 The People argue that the General Assembly's use of the phrase "a case" in section 18-8-609(1), coupled with the definition of "juror" in section 18-8-601(1), shows that the General Assembly didn't intend to limit prosecutions under the jury tampering statute to attempts to influence jurors in specifically identifiable cases—that is, cases in which the person sought to be influenced had been selected to serve on a jury or had been selected to be part of a venire from which a jury in a particular case would be chosen. At first glance, this argument has some force. After all, the definition of "juror" in section 18-8-601(1) includes persons who have merely been summoned for jury duty. But on closer inspection, we conclude that the language of section 18-8-609(1) limits application of the definition in that section.

¶ 14 We begin by acknowledging the rule that "when the legislature defines a term in a statute, that definition governs," and it governs "wherever [the term] appears in the statute, except where a contrary intention plainly appears." Farmers Ins. Exch. v. Bill Boom Inc. , 961 P.2d 465, 470 (Colo. 1998) (citing R.E.N. v. City of Colorado Springs , 823 P.2d 1359, 1364 (Colo. 1992) ). We believe a contrary intention appears from the language of section 18-8-609(1).

¶ 15 First of all, by using the phrase "a case," the General Assembly plainly demonstrated an intent to limit the statute's application to attempts to influence a juror in a case. One who has merely been summoned for jury duty is not serving in "a case," and indeed may ultimately not serve. On the other hand, one serving as a juror obviously is serving in a case, as is one who has been selected for a venire from which a jury in a particular case will be chosen.

¶ 16 Additionally, in the same sentence, the General Assembly limited prohibited communications to those "other than as a part of the proceedings in the trial of the case ." § 18-8-609(1) (emphasis added). In twice using the definite article "the," the General Assembly intended to limit the statute's reach to conduct relating to a trial of a particular case. See Brooks v. Zabka , 168 Colo. 265, 269, 450 P.2d 653, 655 (1969) ("It is a rule of law well established that the definite art...