The People Of The State Of Colo. v. Tucker

• Court: Colorado Court of Appeals
• Writing for the Court: RICHMAN
• Citation: People v. Tucker, 232 P.3d 194 (Colo. App. 2009)
• Decision Date: 01 October 2009
• Docket Number: 06CA2580
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee,v.Justin TUCKER, Defendant-Appellant.

232 P.3d 194

The PEOPLE of the State of Colorado, Plaintiff-Appellee,v.Justin TUCKER, Defendant-Appellant.

No. 06CA2580.

Colorado Court of Appeals Div. II.

Oct. 1, 2009.

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Katherine A. Aidala, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RICHMAN.

Defendant, Justin Tucker, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempt to influence a public servant, forgery of a government-issued document, impersonating a peace officer, criminal impersonation to gain a benefit, and theft under $100. We affirm.

I. Background

During the summer of 2004, defendant, a first-year law student, was an intern for Peter Comar, the District Attorney for the 12th Judicial District of Colorado. In the spring and summer of 2004, defendant and his wife were parties to a domestic relations case pending in Montana, in which Montana District Court Judge Gregory Todd had entered a permanent restraining order against defendant and in favor of his wife. Defendant subsequently was charged with violating the order, and, in June 2004, he was criminally charged in Montana with stalking. Attorney Solomon Neuhardt was appointed to represent defendant in the criminal case. Although a different judge was assigned to the criminal case, Judge Todd conducted the initial advisement.

In August 2004, Neuhardt received a letter that purported to have been written and signed by Comar. The letter was printed on the letterhead of the Alamosa District Attorney. The salutation read “Dear Mr. Neuhardt” and the letter went on to state, in pertinent part:

Mr. Tucker has requested that we forward to you the criminal charges we will be filing on Judge Todd. It is not our policy to do so, but I will be totally frank with you. I am very upset with the situation. Mr. Tucker's grandfather was on the 10th circuit court of appeals for many years and his brother-in-law is the attorney general of Colorado. I have promised Mr. Tucker and his family that if Mr. Tucker is affected adversely in any way[,] Judge Todd's career will end. A judge has a moral obligation to find out the facts. Judges are not there to rubber stamp whatever a woman says. If Todd had even been willing to look at the facts he would have known that Mrs. Tucker is an accomplished liar. No judge in the state of Colorado or Arizona would have issued a restraining order in this case.... I personally think it is time to do the right thing and protect Mr. Tucker.... It is reprehensible that the State of Montana is willing to further this harassment. If Mr. Todd and the State of Montana want to ignore the totality of circumstances in this case[,] ... we will act in kind. If they continue to do so we will use all the resources of the State of Colorado to protect him.

The state of Colorado will also review every thing the [Montana prosecutor] does with a fine tooth comb. This may seem harsh to you but our office has dealt with [defendant's wife] quite frequently and am [sic] amazed any state would try to protect such a deviant.

We are also prepared to charge [defendant's wife] criminally. We have also been in contact with the district attorney's office in Maricopa County Arizona. They are equally tired of [defendant's wife] and will be filing criminal perjury charges against her.

Neuhardt called Comar and asked him whether he had written the letter. Comar stated he had not written it. Concerned about Judge Todd's safety, Neuhardt called the judge's office to inform him of the letter's content. Neuhardt later faxed a copy of the letter to the judge. He mailed the original to Comar.

Defendant was subsequently charged in Colorado with the four offenses as set forth above, and, after the jury found defendant guilty on all counts, the trial court sentenced him to four years on probation. This appeal followed.

II. Motion to Preclude Evidence

Before trial, defendant filed a motion to preclude the use of the letter at trial, as well as Neuhardt's testimony about the letter, asserting these communications were shielded by the attorney-client privilege. At the hearing on this motion, the parties stipulated that defendant had (1) drafted the letter and sent it to Neuhardt, and (2) attempted to reproduce Comar's signature on the letter. Other than the stipulations and background facts set forth above, no evidence was adduced at the hearing.

The court denied defendant's motion, relying on the Colorado statutory definition of the attorney-client privilege, as codified by section 13-90-107(1)(b), C.R.S.2009, which states: “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment....”

The trial court found that on its face, the letter in question does not “purport to be a communication from [defendant] to Mr. Neuhardt; it purports to be a communication from Mr. Comar to Mr. Neuhardt.” Thus, the court concluded, it does not meet the threshold requirement of a privileged communication. On appeal, defendant contends that the trial court erred in denying his pretrial motion to exclude the letter and Neuhardt's testimony pursuant to the attorney-client privilege. We disagree.

The trial court also rejected defendant's argument that the letter should be excluded because Neuhardt violated the Montana Rules of Professional Conduct when he disclosed the letter. Because defendant does not reassert this argument on appeal, that issue has been abandoned, and we do not address it here. See People v. Malloy, 178 P.3d 1283, 1285 (Colo.App.2008).

A. Standard of Review

In reviewing a trial court's ruling on a motion to exclude evidence, we defer to the court's factual findings if competent evidence in the record supports them, and we review the court's legal conclusions de novo. People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo.2009).

B. Applicable Law

As the trial court correctly concluded, the common law attorney-client privilege is now codified in Colorado by section 13-90-107(1)(b). Although codified, the privilege originated in the common law, and much of the common law jurisprudence pertaining to the privilege is retained. Thus, the privilege is established by the act of a client seeking professional advice from a lawyer and extends only to confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations. Losavio v. Dist. Court, 188 Colo. 127, 132-33, 533 P.2d 32, 35 (1975); People v. Trujillo, 144 P.3d 539, 542 (Colo.2006). The purpose of the attorney-client privilege is to secure the orderly administration of justice by ensuring candid and open discussion between the client and the attorney without fear of disclosure. Losavio, 188 Colo. at 132, 533 P.2d at 34. Furthermore, the privilege “applies only ‘to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential.’ ” Wesp v. Everson, 33 P.3d 191, 197 (Colo.2001) (quoting Lanari v. People, 827 P.2d 495, 499 (Colo.1992)); see also D.A.S. v. People, 863 P.2d 291, 295 (Colo.1993) (noting that there must be circumstances indicating the intention of secrecy for a communication to be privileged); People v. Tippett, 733 P.2d 1183, 1192 (Colo.1987) (stating that communications must be “private or secret” to be privileged).

C. Analysis

Here, we see no error in the trial court's finding that, on its face, the letter in question does not “purport to be a communication from [defendant] to Mr. Neuhardt; it purports to be a communication from Mr. Comar to Mr. Neuhardt.” Thus, the court concluded, it does not meet the threshold requirement of a privileged communication. We agree with that conclusion. See § 13-90-107(1)(b); Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo.2000) ( “attorney-client privilege extends only to matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations”). Defendant cites no authority, and we have found none, holding that a fraudulent letter with a forged signature, but nonetheless sent to an attorney, is treated as an attorney-client communication for purposes of applying the privilege.

In addition, we note that even if a lawyer reading the letter realized that defendant drafted, signed, and sent the letter, nothing in the letter purports to seek legal advice, counsel, or direction from the lawyer. See Losavio, 188 Colo. at 132-33, 533 P.2d at 35; Trujillo, 144 P.3d at 542. Rather, the letter expresses the writer's intention to file criminal charges against the judge, to take unspecified action to end the judge's career, and, possibly, to file criminal charges against defendant's wife.

Moreover, the letter does not meet the confidentiality requirement of a privileged communication. To the extent the letter seeks to have a threat conveyed to Judge Todd, or to defendant's wife, the letter cannot be understood to be a communication made in circumstances giving rise to a reasonable expectation that the statements will remain confidential. Further, the letter indicates that the matters discussed therein had already been shared with other people, specifically, with Comar and other personnel at the district attorney's office in Maricopa County, Arizona. See Tippett, 733 P.2d at 1193 (communication was not confidential because its contents were known to third parties). In such circumstances, it was unreasonable for defendant to expect that the letter would be kept confidential. See Wesp, 33 P.3d at 197 (to be privileged, statements must be made under circumstances giving rise to a reasonable expectation that they will be treated as...