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People v. Yascavage11/30/2004
na. On the other hand, we do assign some meaning to the use of the term "legally summoned" and therefore conclude that it means some action taken by the official tribunal that obligates a witness to appear at an official proceeding.
Again, we stress that neither subsection (1)(a) nor subsection (1)(c) require such legal process in order to trigger the crime. Only subsection (1)(b) requires that element.
III. Application
Yascavage was charged with criminal solicitation to tamper with a witness. The evidence shows that while Yascavage was in jail awaiting trial on charges of harassment by stalking and violation of a restraining order, he contacted a friend and asked him to "get to" the victim so the charges would be "throw out" when she failed to appear. The defendant was aware Collier was a potential witness against him. Thus, there was evidence that Yascavage attempted to stop the victim from attending an official proceeding.
However, the jury was instructed as to the elements of section 18-8-707(1)(b) only. Thus, to find defendant guilty of tampering with a witness, the jury would have been required to conclude that he attempted to cause the victim to absent herself from an official proceeding to which she had been legally summoned.
We have concluded that "legally summoned" means that the witness must be under some obligation to the court to appear. Here, the only potential evidence was that Collier's name appeared on the charging document as a potential witness. Even that evidence was not presented to the jury in support of the charges. Because there was no evidence that Collier was under any legal obligation to appear at the proceeding, there was a failure of proof on one element of the charge.
IV. Conclusion
Section 18-8-707, while including expansive definitions of covered victims or witnesses, nonetheless delineates prohibited conduct of a defendant in three subsections. Subsection (1)(b) of the statute, the one that Yascavage was charged with violating, contains a requirement that the victim or witness with whom the defendant tampers be under legal summons to appear at an official proceeding. Although legal summons does not mean subpoena for purposes of this statute, it does mean that the victim or witness be under a legal obligation, imposed by the tribunal, to appear. Here, there was no evidence that Collier was under such a legal obligation to appear, and thus the conviction fails for lack of proof on one element.
We affirm the court of appeals' decision to vacate the tampering by criminal solicitation conviction.
JUSTICE COATS dissents.
JUSTICE COATS, dissenting.
Despite acknowledging Colorado's debt to the drafters of the Model Penal Code and our legislature's clear intent to protect an even broader class of persons than protected by the MPC, the majority construes Colorado's witness tampering statute (through what I consider to be an unnecessarily cramped reading of an isolated phrase in the statute) to provide substantially less protection for victims and other potential witnesses. Because I believe the plain language of the entire statute, as well as the comments to the Model Penal Code provision from which it was ultimately derived, demonstrate that the tampering offense of which the defendant was convicted is committed by attempting to dissuade any person from complying with a lawful duty to testify truthfully, whether or not an official proceeding is pending and whether or not that person has actually been summoned to it, I respectfully dissent.
As the majority acknowledges, both the Michigan and Model Penal Code provisions from which
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