People v. Nozolino
| Decision Date | 31 July 2014 |
| Docket Number | Court of Appeals No. 12CA2308 |
| Citation | 2014 COA 95,350 P.3d 940 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Bruce Joseph NOZOLINO, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Majid Yahzdi, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Barker & Tolini, P.C., Joshua Tolini, Colorado Springs, Colorado, for Defendant–Appellant
¶ 1 Defendant, Bruce Joseph Nozolino, appeals the judgment of conviction entered on jury verdicts finding him guilty of four counts of tampering with a witness. We reverse Nozolino's convictions for counts 4 and 5 (the counts related to his mother and brother). The judgment of conviction is otherwise affirmed.
¶ 2 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 the Honorable 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. And in 2008, a man who allegedly had an affair with Nozolino's ex-wife was fatally shot outside his home.
¶ 3 A statutory grand jury convened to investigate the shootings. The Honorable Kirk S. Samelson, then the Chief Judge of the Fourth Judicial District, presided over the grand jury. While the grand jury was convened, Nozolino gave two friends, Wade Feller and Albert Shrecengost, the following pre-printed statement:
When forced into any kind of court appearance by subpoena, you have a constitutional right to not answer any (or all) questions posed to you. After giving your name and address, then politely, courteously, and respectfully state that you wish to exert your constitutional rights to remain silent and not incriminate yourself by not answering the question. You may say this after every question and may also state ahead of time that this will be your answer to all questions. You may also give this answer if you are asked if you were coached by anyone on how to respond. You also have a right to ask for a lawyer at any point in time. This right to a lawyer is absolute and the court can not overrule this request.
¶ 4 Nozolino also told another friend, Brad Collins, to notify him using a code phrase if law enforcement officials contacted Collins. And after learning that detectives with the Colorado Springs Police Department were interviewing his family members, Nozolino emailed his mother, telling her that “cooperation isn't recommended with the cops!” He similarly advised his brother via e-mail that if the brother received a visit from the police,
¶ 5 Based upon these communications, the grand jury indicted Nozolino on five counts of witness tampering. A separate indictment was returned related to the shootings.
¶ 6 At a jury trial on the witness tampering charges, the district court granted Nozolino's motion for judgment of acquittal on the count involving Collins. The jury found Nozolino guilty of the remaining four witness tampering counts. The court sentenced Nozolino to consecutive terms in the custody of Department of Corrections, totaling sixteen years.
¶ 7 Nozolino contends that there was insufficient evidence to support his convictions for counts 4 and 5, the witness tampering counts related to his mother and brother. We agree.
¶ 8 We review de novo whether the evidence is both substantial and sufficient to sustain a conviction beyond a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). Evidence is sufficient when a rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. Mata–Medina v. People, 71 P.3d 973, 983 (Colo.2003) ; People v. Warner, 251 P.3d 556, 564 (Colo.App.2010).
¶ 9 As relevant here, a person commits tampering with a witness if, without bribery or threats, he intentionally attempts to induce a witness or a person he believes is to be called to testify as a witness in any official proceeding to unlawfully withhold any testimony. § 18–8–707(1)(a), C.R.S.2013.
¶ 10 The prosecution is neither required to present evidence that a witness has been legally summoned to an official proceeding, nor that the witness actually testified. People v. Cunefare, 102 P.3d 302, 306 (Colo.2004) (). Nonetheless, the prosecution must present evidence that the defendant attempted to induce a witness either to testify falsely or to unlawfully withhold testimony.See id. at 304–05 ; § 18–8–707(1) (a).
¶ 11 Evidence was presented that while the grand jury was convened, El Paso County police officers interviewed Nozolino's mother and brother. Nozolino's mother informed her son about the police visit via e-mail. Nozolino responded, stating that she had confirmed his suspicion that he was the target of a grand jury investigation and recommending that she not cooperate with the police. Nozolino then sent a similar e-mail to his brother, recommending that the brother not talk to the police.
¶ 12 Standing alone, the e-mails neither advise nor advocate unlawful withholding of testimony. Indeed, an individual may lawfully refuse to speak with the police, and it is not unlawful for a citizen to withhold cooperation during a consensual encounter with law enforcement. See People v. Martinez, 200 P.3d 1053, 1057 (Colo.2009) (); People v. Ray, 252 P.3d 1042, 1048 (Colo.2011) (); see also United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (); accord Florida v. Royer, 460 U.S. 491, 497–98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
¶ 13 At trial, no additional evidence was presented indicating that Nozolino did anything other than suggest that his mother and brother not cooperate or speak with the police. No evidence was presented that Nozolino told them either not to cooperate with a lawful subpoena or not to testify before the grand jury or at trial. And the People do not argue that voluntary cooperation with law enforcement is legally required, or that an individual is legally required to speak with police. Based on the evidence presented, we conclude that the prosecution did not meet its burden to prove that Nozolino attempted to induce his family members to unlawfully withhold testimony.
¶ 14 Nor does Cunefare, upon which the People rely, change our analysis. In Cunefare, the defendant contacted the victim and convinced her to sign a letter recanting her truthful statements. 102 P.3d at 307. From this evidence, the supreme court concluded that it was reasonable to infer that the defendant intended to induce the victim to falsely claim that the events in question did not happen if the matter went to trial. Id.Cunefare thus did not address statements that, facially, advocated lawful activity.
¶ 15 True, the police officers who interviewed Nozolino's mother and brother did so as part of the grand jury's investigation. But there is no evidence tethering the lawful suggestions in the e-mails to some action by Nozolino to induce his mother and brother to unlawfully withhold testimony or testify falsely. Thus, we conclude the evidence was not sufficient to satisfy the elements of witness tampering. § 18–8–707(1)(a) ; see State v. Bailey, 346 Or. 551, 213 P.3d 1240, 1248 n. 6 (2009) (); see also People v. Sprouse, 983 P.2d 771, 778 (Colo.1999) ().
¶ 16 Accordingly, we vacate Nozolino's convictions for witness tampering with respect to counts 4 and 5, involving his mother and brother.
¶ 17 Nozolino next contends that the witness tampering statute infringes on his right to free speech, and thus is unconstitutional as applied to his remaining two convictions.1 We disagree.
¶ 18 The People initially urge us not to address Nozolino's constitutional challenge, asserting that it was not properly preserved. Although Nozolino does not reference preservation in his opening brief, Nozolino moved to dismiss the witness tampering indictment “based on [the] First Amendment.” Without objection, the district court found that the motion asserted an as-applied challenge to the constitutionality of the witness tampering statute. Accordingly, Nozolino preserved his as-applied constitutional challenge to section 18–8–707(1).
¶ 19 A statute is presumed to be constitutional.
Curious Theater Co. v. Colo. Dep't of Pub. Health & Env't, 216 P.3d 71, 76–77 (Colo.App.2008), aff'd, 220 P.3d 544 (Colo.2009). Thus, the party attacking the constitutionality of a statute has the burden of proving the statute is unconstitutional, as applied, beyond a reasonable doubt. People v. Gutierrez, 622 P.2d 547, 555 (Colo.1981). An as-applied challenge alleges that a statute is unconstitutional as to the specific circumstances under which a defendant acted. People v. Ford, 232 P.3d 260, 263 (Colo.App.2009). Whether a defendant has made a threshold showing that the First Amendment applies to his conduct is a question of law that we review de novo....
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