People v. Iannicelli

• Decision Date: 23 September 2019
• Docket Number: Supreme Court Case No. 18SC35,Supreme Court Case No. 18SC34
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Mark IANNICELLI, Respondent. The People of the State of Colorado, Petitioner v. Eric Patrick Brandt, Respondent.
• Court: Colorado Supreme Court

449 P.3d 387

The PEOPLE of the State of Colorado, Petitioner

v.Mark IANNICELLI, Respondent.

The People of the State of Colorado, Petitioner

v.Eric Patrick Brandt, Respondent.

Supreme Court Case No. 18SC34

Supreme Court Case No. 18SC35

Supreme Court of Colorado.

September 23, 2019

Attorneys for Petitioner: Beth McCann, District Attorney, Second Judicial District, Robert M. Russel, Senior Chief Deputy District Attorney, Denver, Colorado

Attorneys for Respondents: Killmer, Lane & Newman, LLP, David A. Lane, Andrew McNulty, Denver, Colorado

Attorneys for Amicus Curiae American Civil Liberties Union: American Civil Liberties Union Foundation of Colorado, Sara R. Neel, Denver, Colorado, American Civil Liberties Union Foundation, Naomi Gilens, New York, New York

Attorney for Amicus Curiae Cato Institute: Millennial Policy Center, Joseph Greenlee, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case, which requires us to construe Colorado’s jury tampering statute, section 18-8-609(1), C.R.S. (2019), implicates both significant issues of individual rights to free speech and the state’s also significant interest in ensuring the fair and orderly administration of justice.

¶2 Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering under section 18-8-609(1), which provides that a person commits jury tampering if "with intent to influence a juror’s vote, opinion, decision, or other action in a case," he or she attempts "directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case."

¶3 Iannicelli and Brandt moved to dismiss these charges, contending that section 18-8-609(1) violates the First Amendment both on its face and as applied to them because, among other reasons, the statute results in an unconstitutionally overbroad restriction on free speech. The district court ultimately granted this motion, concluding that the jury tampering statute was unconstitutional as applied to Iannicelli and Brandt, and the People appealed.

¶4 A division of the court of appeals affirmed the dismissal orders, although it did so without reaching the constitutional question. The division concluded instead that, as properly interpreted, the jury tampering statute’s prohibitions did not cover the conduct of which Iannicelli and Brandt were accused because that statute applies only to (1) "attempts to improperly influence jurors or those selected for a venire from which a jury in a particular case will be chosen" and (2) attempts to influence such a juror’s "vote, opinion, decision, or other action in a specifically identifiable case." People v. Iannicelli , 2017 COA 150, ¶¶ 8, 31, ––– P.3d ––––.

¶5 We now must determine whether the division properly interpreted the jury tampering statute.¹ Although we deem too narrow the division’s conclusion that the statute prohibits only attempts to influence seated jurors or those selected for a venire from which a jury in a particular case will be chosen, we agree with the division that the statute requires that a defendant’s effort to influence a juror must be directed to a specifically identifiable case. Because the People did not charge Iannicelli and Brandt with such conduct, we affirm the division’s judgment, although our reasoning differs in some respects from that of the division below.

I. Facts and Procedural History

¶6 Iannicelli and Brandt went to the Lindsey-Flanigan Courthouse hoping to find jurors who were sitting on cases, in order to give them information about jury nullification. The People allege that Iannicelli and Brandt were on the plaza adjacent to the courthouse and that they asked people entering the courthouse whether they were jurors or potential jurors. If any of these people answered affirmatively, then Iannicelli and Brandt would give them one or more pamphlets concerning jury nullification.

¶7 An organization called the Fully Informed Jury Association produced the pamphlets that Iannicelli and Brandt distributed. As pertinent here, the pamphlets instructed jurors that "[j]uror nullification is your right to refuse to enforce bad laws and bad prosecutions." The pamphlets also contained a number of other statements and purported advice, including, among other things, the following:

• "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. American jurors have a proud tradition of saying ‘no’ and ‘not guilty’ when bad and corrupt laws are used against people."

• "It is the responsibility of the jury to judge not just the facts of the case but also the law in question."

• "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 prosecution stack the jury by removing all the thinking, honest people!"

• "[J]udges only rarely ‘fully inform’ jurors of their rights, especially their right to judge the law itself and vote on the verdict according to conscience."

• "The jury has the power to nullify any law .... [T]he jury has the power to ignore previous rulings by the Supreme Court and still find the defendant not guilty if they judge the law and previous court rulings to be wrong."

• "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, or there would be no need for independent thinking jurors like you."

• "You cannot be forced to obey a ‘juror’s oath.’ "

• "If the law violates any human rights, you must vote no against that law by voting ‘not guilty.’ "

¶8 A deputy district attorney observed Iannicelli and Brandt distributing these pamphlets and reported their activity to the police. The police arrived and arrested the two men, and the People charged them with multiple counts of jury tampering pursuant to section 18-8-609(1).

¶9 Iannicelli and Brandt subsequently moved to dismiss these charges. They argued, among other things, that (1) they had been engaging in speech protected by the First Amendment; (2) they had been doing so on the courthouse plaza, which, they asserted, is a designated public forum for free speech; and (3) section 18-8-609(1) was unconstitutionally overbroad in violation of the First Amendment. The People responded that the First Amendment did not cover the alleged conduct and that the State could adopt safeguards that were necessary and proper to ensure that the administration of justice at all stages was free from outside control and influence.

¶10 The district court ultimately granted Iannicelli and Brandt’s motion. The court initially concluded that section 18-8-609(1) is not unconstitutional on its face because it serves the legitimate purpose of protecting the legal system, and particularly the jury trial process, from corruption. The court went on to conclude, however, that because Iannicelli and Brandt had been engaged in an activity that constituted speech and because they were engaged in this activity in a public place, the statute was unconstitutional as applied to them. The court therefore dismissed the charges.

¶11 The People appealed, and in a unanimous, published opinion, a division of the court of appeals affirmed. Iannicelli , ¶¶ 2, 32. In doing so, the division did not address the question of the statute’s constitutionality. Id. at ¶ 8. Instead, the division concluded that as properly interpreted, the statute’s terms did not proscribe Iannicelli and Brandt’s conduct. Id . at ¶¶ 8, 31.

¶12 As pertinent here, the division began by examining section 18-8-609(1) ’s use of the words "juror" and "a case," as well as the definition of the word "juror" found in section 18-8-601(1), C.R.S. (2019), which includes persons who have merely been summoned for jury duty. Id. at ¶ 13. The division acknowledged that generally, when the legislature defines a statutory term such as "juror," that definition governs unless a contrary intention plainly appears. Id. at ¶ 14. The division perceived such a contrary intention here, based on the language of section 18-8-609(1). Id.

¶13 Specifically, the division noted first that the statute proscribes attempts to influence a juror in "a case" but that "[o]ne who has merely been summoned for jury duty is not serving in ‘a case,’ and indeed may ultimately not serve." Id. at ¶ 15. In contrast, a person who is serving as a juror or who has been selected for a venire from which a jury in a particular case will be chosen is serving in "a case." Id.

¶14 The division next pointed out that in the same sentence as the reference to "a case," "the General Assembly limited prohibited communications to those ‘other than as a part of the proceedings in the trial of the case .’ " Id. at ¶ 16 (quoting section 18-8-609(1) ). The division explained, "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." Id.

¶15 Lastly, the division observed that although the defendant must intend to influence a juror’s action in a case, a person who has merely been summoned for jury duty and who sits in a room waiting to be called is in no position to take action in any case. Id. at ¶ 17.

¶16 Read together, the foregoing observations convinced the division that section 18-8-609(1) limits prosecution to attempts to influence persons who have been...