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People v. Yascavage11/30/2004
n any such proceedings."
In the context of section 18-8-707, tampering thus occurs when a defendant intentionally attempts to interfere with someone he believes is to be called, or who may be called, to testify in any proceeding covered by section 18-8-501. The purpose of the "official proceeding" language is to tie the defendant's conduct to the ultimate harm to be avoided: namely, obstruction of justice. The drafters of the Model Penal Code commented that the prosecution need not establish that a proceeding was in fact pending but merely that the defendant held the belief it was. It was their intention "to eliminate quibbling invited by laws requiring that a proceeding or investigation actually be pending." Model Penal Code § 241.6 cmt. 2.
As a whole, the introductory provision of section 18-8-707 offers far-ranging protection to a broad class of persons. However, the subsections of the statute are clear in the conduct they prohibit. An individual may not induce or attempt to induce a victim or witness to: (a) testify falsely or unlawfully withhold testimony; (b) absent himself from a proceeding to which he has been legally summoned; or (c) avoid legal process. 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.
We turn then to the subsection under which the defendant was charged and convicted: section 18-8-707(1)(b). That subsection prohibits an attempt to induce a protected person to " bsent himself from any official proceeding to which he has been legally summoned." § 18-8-707(1)(b).
Unlike the other subsections, subsection (1)(b) invokes protection only for a witness or victim who has been "legally summoned." Legally summoned has neither been defined by the general assembly nor by the drafters of the Model Penal Code. In the absence of a statutory definition, we seek first to give words their plain and ordinary meaning. § 2-4-101, C.R.S. (2004).
Although a "summons" most often refers to a court order notifying the defendant of a civil case against him, "summons" generally includes a legal notice requiring a person to appear in court. Black's law dictionary defines summons as a writ directing a sheriff to summon a defendant to appear in court or a writ or process commencing the plaintiff's action and requiring a person to appear in court as a juror or witness. Black's Law Dictionary 1477 (8th ed. 2004). Summons has often been interpreted to be synonymous with "process." See, e.g., Ackermann v. Berriman, 114 N.Y.S. 937, 940 (N.Y. City Ct. 1908); Hiatt v. Tompkins, 10 S.E.2d 489 (Va. 1940); Coman v. Williams, 50 N.W.2d 494 (N.D. 1951). But see Roth v. Nash, 144 P.2d 271, (Wash. 1943); State ex rel. Walling v. Sullivan, 13 N.W.2d 550 (Wis. 1944). Black's defines process as "the proceeding in any action or prosecution, a summons or writ, esp. to appear or respond in court. --also termed judicial process; legal process." Black's Law Dictionary 1242 (8th ed. 2004).
The general assembly considers orders, writs, subpoenas, warrants or other notices requiring the appearance of a witness all to be forms of summons. §§ 16-9-201, 16-9-301, C.R.S. (2004). However, "subpoena" and "summons" are not synonymous. In Colorado, the legislature has distinguished between the two on several occasions. Where a subpoena is required, the legislature explicitly identifies that requirement. See §§ 13-1-113; 19-3-503; 16-9-101; 16-9-201; 16-9-301, C.R.S. (2004)
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