2014 COA 95
Colo. Ct. App.2014Background
- Five-count witness tampering indictment; four counts after acquittal on one count related to Collins; trial court sentenced consecutively for sixteen years.
- Shootings occurred 2001 (ex-wife’s divorce attorney), 2001 (divorce judge’s home), 2002 (attorney shot in face), 2008 (alleged affair partner shot).
- Grand jury convened under Judge Samelson; Nozolino gave friends a pre-printed statement about exercising rights and not incriminating oneself.
- Nozolino emailed his mother and brother advising not to cooperate with cops after police visits; he instructed a code word for Collins to contact him if contacted by law enforcement.
- Grand jury indicted Nozolino on five counts; trial acquitted him on the Collins-related count; remaining four counts were subject to challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for counts 4 and 5 | Nozolino | Sufficiency shown by emails to family to induce non-cooperation | Counts 4 and 5 insufficient; vacated convictions |
| Constitutionality as applied to remaining convictions | Nozolino | Statute burden to prove not overbroad as applied | As-applied challenge rejected; statute constitutional as applied to remaining convictions |
| Pre-printed statement as witness tampering | Nozolino | Statement coerced or unlawfully induced testimony | Pre-printed statement falls within witness tampering; not protected by First Amendment |
| Judicial recusal and grand jury process | Nozolino | Recusal deficiency was structural error | No structural error; any error harmless after guilty verdict; remand limited to counts 4 and 5 |
Key Cases Cited
- People v. Cunefare, 102 P.3d 302 (Colo.2004) (elements and scope of witness tampering; withhold testimony standard)
- People v. Ray, 252 P.3d 1042 (Colo.2011) (consensual encounters and witness opportunities to speak)
- People v. Martines, 200 P.3d 1053 (Colo.2009) (lawful right to refuse interview during police encounter)
- Dempsey v. People, 117 P.3d 800 (Colo.2005) (sufficiency review for tampering elements; substantial and sufficient evidence standard)
- Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (U.S.1987) (public leafleting vs. time/place/m manner restrictions; not applicable to private distribution)
- United States v. Mandujano, 425 U.S. 564 (U.S.1976) (testimony and subpoenas; compelled testimony context)
- Mechanik v. United States, 475 U.S. 66 (U.S.1986) (harmless error in grand jury proceedings after conviction)
- Beckord v. Dist. Court, 698 P.2d 1323 (Colo.1985) (grand jury and post-indictment relevance; not controlling here)