Thе PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wendy Anne BERGEN, Defendant-Appellant.
No. 91CA1629
Colorado Court of Appeals, Div. III.
April 21, 1994
Rehearing Denied June 2, 1994
Certiorari Denied Nov. 15, 1994.
Accordingly, we determine that the trial court erred in concluding that the Bettmanns were barred from suing as class representatives by the statute of repose.
Because the court relied in part upon the Bettmann‘s atypical status in denying class certification, the trial court must re-examine, in light of our holding, all elements enunciated in
The judgment is affirmed except as to the class certification and class representation issues. As to those issues, the judgment is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.
HUME and RULAND, JJ., concur.
Haddon, Morgan & Foreman, P.C., Lee D. Foreman, Rachel A. Bellis, Denver, for defendant-appellant.
Opinion by Judge DAVIDSON.
Defendant, Wendy Anne Bergen, appeals from the judgments of conviction entered upon jury verdicts finding her guilty of dogfighting, conspiracy to commit dogfighting, and accessory to dogfighting. We affirm.
Defendant was an investigative reporter with the news department of a Denver television station. In 1989, Denver passed an ordinance disallowing ownership of pitbull terriers, known as “pitbulls,” a breed cоmmonly used as fighting dogs. Shortly after the ordinance was enacted, defendant began work on a feature story concerning dogfighting in Colorado.
The evidence presented at defendant‘s trial established the following events. In search of the opportunity to videotape an actual Colorado dogfight, defendant contacted Humane Society officials and was told they could not help her contact any known Colorado dogfighters or provide her with any film of dogfights which had taken place in Colorado. Defendant was then informed by a friend, Mark Labriola, that he could arrange for her to attend a dogfight because he was in contact with pitbull owners.
Labriola learned of a person living in California who could help him get access to a dogfight. Labriola wired $50, provided by defendant, to this person in California and was given the name of Phil Walker, who bred and raised pitbulls in Lakewood, Colorado.
On September 21, 1989, defendant, accompanied by two cameramen, met Walker and Labriola at a restaurant and followed them to a parking lot along the South Platte River bike path in Sheridan, Colorado. Walker and Labriola had one pitbull in the car with them. Another pitbull was transported in a truck driven by a friend of Labriola and accompanied by a friend of Walker.
The cameramen filmed Walker making a grandiose statement regarding his status as a dogfighter. Labriola and Walker were then equipped with wireless microрhones. Each of them took one of the pitbulls, and the entire party moved to a secluded spot near the river and away from the road. There, the pitbulls were released and allowed to fight each other, while both of the cameramen took videotape. Defendant, Labriola‘s friend and Walker‘s friend, along with Labriola and Walker, comprised the entire audience for the dogfight.
Within a minute, the larger of the two dogs had his jaws firmly clamped around the other dog‘s head. Walker then stopped the fight by forcing a screwdriver between the dog‘s back teeth to unlock the jaws.
Labriola opened his wallet for the camera and flashed several large bills implying some money had been lost and stating, “That‘s history.” Defendant interviewed Walker on camera. Then defendant and the cameramen returned to the station.
Defendant and Labriola next contacted Walker for help in obtaining some videotape of fighting pitbulls in training. On October 11, 1989, defendant and one of her cameramen met with Walker to film a training fight in which the pitbulls were to be muzzled. Walker brought the same two pitbulls but did not have any muzzles. Defendant provided the money for the purchase of two muzzles at a pet supply store.
Defendant also wanted to videotape pitbulls training on a treadmill. In the basement of one cameraman‘s home, defendant had the other cameraman videotape one of Walker‘s dogs on a treadmill. Another pitbull was held up to provide “encouragement” to run faster.
Defendant then was informed that attending a dogfight was illegal in Colorado. In a meeting with the Arapahoe district attorney and a fellow reporter, defendant asked if she or the station would be prosecuted for broadcasting a dogfight in connection with her story on pitbull fighting. Defendant was told that there would be no guarantee that she would not be prosecuted should she use a tape of a fight she had attended. Defendant then asked to go “off the record” and told the district attorney that she had been present at a sparsely attended dogfight in a basement in Sheridan.
Upon hearing that defendant had not been granted carte blanche to broadcast a dogfight videotape, her supervisors removed the story from the programming line up for the fall ratings period. One of defendant‘s cameramen, with the cooperation of Labriola, then attempted to videotape another fight without defendant‘s presence. Labriola took one of Walker‘s pitbulls and set it loose to fight with another pitbull. Videotape of this attempted, but largely unsuccessful, fight was not satisfactory for use by defendant as fight footage.
Although the story had been shelved, defendant did not abandon the idea. In a memorandum to her supervisors she advised them that she would be receiving an anonymous tape in the mail which would allow her to revive the pitbull story without breaking any laws. She predicted the resulting series would be a ratings success.
Defendant then took the videotape of the September fight and copied it to home video format. She copied and re-copied the tape several times to give it a more amateurish appearance. She wrote an anonymous letter to herself and inserted it and the tape into packaging in which she had recently received a tape for an unrelated story and claimed it had been received in the mail.
This videotape was incorporated into a four part series entitled “Blood Sport” which aired in the 10:00 p.m. newscasts during the spring 1990 ratings period. Also included was the treadmill sequence, the muzzled fight, and the attempted fight, which was represented to be a training method called a “roll.”
Defendant explained on camera that the unmuzzled dogfight footage was sent to the station anonymously. Videotaped statements by Walker and Labriola were shown, with faces obscured and voices distorted, including Walker‘s braggadocio and Labriola‘s wallet scene. Also included were interviews with an investigator for a humane organization, videotape of non-fighting, family pet pitbulls and their owners, and pictures of persons who had been injured or maimed by pitbulls.
The broadcast of the series was greeted by a public uproar. Denver newspapers and other television stations reported that the dogfights had been set up and filmed solely for the purpose of the series. Defendant and her cameramen agreed to maintain the story that the videotape of the unmuzzled dogfight had been sent to the station anonymously.
When Arapahoe and Jefferson county law enforcement officials began an investigation, Labriola agreed to provide information in exchange for immunity. Several conversations between Labriola and defendant were recorded without defendant‘s knowledge during which the fabricated “anonymous videotape” story was discussed.
The Jefferson County district attorney‘s office brought the matter before a grand jury in June 1990. At that time, defendant and her cameramen received grand jury subpoenas. Although these subpoenas were later cancelled, and all three were released from
Defendant and the cameramen were charged with dogfighting and perjury. Walker was charged with dogfighting. The camerаmen and Walker accepted plea agreements prior to trial. Defendant went to trial on eleven dogfighting and perjury related charges, and was convicted of the dogfighting charges here at issue.
I.
Defendant first contends that she was not properly advised of her rights as required by the Colorado grand jury statute,
According to
At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain [the advisement] prominently displayed on the front of the subpoena.
Section
Any witness who is not advised of his rights pursuant to paragraph (a) of this subsection (4) shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testifies or any evidence he produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him in any court.
Here, the grand jury initially issued to defendant a subpoena bearing an advisement of rights. After she requested an opportunity to examine her own previous statements in the possession of the prosecution pursuant to
As the trial court found, after her subpoena was cancelled, defendant was under no compulsion to testify. By cancelling the subpoena, the prosecutor took the risk that she would not appear, and he could not have compelled her to do so without reissuing a subpoena. Defendant chose, however, to appear before the grand jury. By testifying on her own volition, she became a voluntary witness.
Nonetheless defendant argues that, because her subpoena was cancelled, she received no advisement and, therefore, could not be prosecuted for the dogfighting related charges. She claims she was deprived of her right to a subpoena bearing a written advisement pursuant to
A.
Contending that
The interpretation of a statute is a question of law. Colorado Division of Employment & Training v. Parkview Episcopal Hospital, 725 P.2d 787 (Colo. 1986). Interpretations must reflect legislative intent. See People v. Terry, 791 P.2d 374 (Colo. 1990). “Courts look first аnd foremost to the language of the statute itself to discern legislative intent.” Martinez v. Badis, 842 P.2d 245, 249 (Colo. 1992).
Also, courts must look at the context in which statutory terms appear. State v.
Defendant argues that the term “any witness” as used in
Section
Thus, we have little difficulty determining that, by its plain language, the statute provides a bar to prosecution of subpoenaed, but unadvised, witnesses. Voluntary witnesses, in contrast, do not receive a subpoena; therefore, the advisement requirement of
Furthermore, we agree with the People that we must construe a statute to avoid an illogical result. See People v. Silvola, 190 Colo. 363, 547 P.2d 1283 (1976) overruled in part on other grounds, People v. Macrander, 828 P.2d 234 (Colo. 1992). We note that only advance written notice satisfies the statutory requirement; a verbal advisement does not suffice. People ex rel. Gallagher v. District Court, 198 Colo. 468, 601 P.2d 1380 (1979). However,
By their terms,
These provisions simply do not speak to, and are inapplicable to the rights of any witness who voluntarily appears before the grand jury without compulsion of a subpoena. The statute unambiguously states only that, if a grand jury witness is compelled to testify pursuant to a subpoena, such witness cannot later be prosecuted if the subpoena did not set forth a proper advisement. In light of this plain language, we cannot add by implication words which are not there. Accordingly, contrary to defendant‘s argument, we will not infer any legislative intent to extend the statutory bar to prosecution of voluntary witnesses not appearing pursuant to subpoеna.
B.
Defendant argues, nonetheless, that, even if the right of an advance written advisement applies only to subpoenaed witnesses, witnesses such as she, who are the subject of a grand jury investigation and thus potential defendants, must be served with a subpoena bearing a written advisement. Despite the absence of any specific statutory language concerning “target” witnesses, she contends that the legislative history of
Statutory rights may be waived so long as the waiver is performed voluntarily. See People v. Sevigny, 679 P.2d 1070 (Colo. 1984). Our review of the pertinent legislative history reveals nothing which would lead to the conclusion that the right to service of a subpoena bearing an advance written advisement is not a statutory right subject to voluntary waiver.
The Colorado grand jury statute was revised in 1977. The legislative history reflects acknowledgment that a new, statutory right to written advisement for subpoenaed witnesses was being created. A verbal advisement prior to testimony remained sufficient to satisfy constitutional due process concerns. See People v. Austin, 159 Colo. 445, 448, 412 P.2d 425, 426 (1966) (“[T]he appearance and voluntary testimony by a potential defendant before a grand jury, aftеr being fully advised both of his constitutional rights and that he is the subject of the investigation is not in violation of the privilege against self-incrimination. . . . To hold otherwise would be . . . to hold that one whose conduct is under investigation, may rush to the grand jury room, demand to be heard, ignore all warnings, and if he be permitted to open his mouth, he is thereby forever absolved of his offense.” (emphasis in original)).
Testimony before the Senate Judiciary Committee indicates that the reformers wished to provide for an advance notification of rights by requiring the inclusion of an advisement upon grand jury subpoenas. Acknowledging the expansive power which the grand jury holds to compel a witness to testify by the use of the subpoena, legislative discussion and questioning centered around the advisability of providing the new statutory right to all subpoenaed witnesses or only to “target” subpoenaed witnesses. See Tape Recordings of Senate Judiciary Committee Hearings, 51st General Assembly, 1st Session (February 16 and March 17, 1977) (S.B. 186 Hearings).
In response to the proposed amendments, district attorneys and others testified that, in their opinion, providing the advance advisement on every subpoena in order to guarantee that “target” witnesses are adequately advised is an unnecessarily broad approach. The testimony indicates a concern that the advance notification would unnecessarily frighten “non-target” witnesses and send them scurrying for legal representation or provide uncоoperative “non-target” witnesses with a method of impeding the grand jury process.
No opposition was presented to the proposition that subpoenaed “target” witnesses are entitled to advance advisement in order to secure effective employment of the right to counsel and right against self-incrimination. Although it was acknowledged that sometimes a witness could enter the grand jury room as a witness, but leave as a potential defendant, there was general agreement that “target” witnesses commonly are easily identified by prosecutors. It was further agreed that, if the prosecution was to be allowed a choice of including an advisement on a subpoena, then it should have to live with its initial choice. See S.B. 186 Hearings.
Thus, the legislative history discloses that serious concern for the protection of a subpoenaed “target” witness led to the creation of the right to a grand jury subpoena containing an advisement. There is, however, no indication that such “target” witness could not waive this new statutory right by a voluntary appearance.
In People ex rel. Gallagher v. District Court, supra, our supreme court considered the impact of the new statutory right to an advance written advisement upon a subpoena. A “target” witness appeared before the grand jury pursuant to directions issued by a grand jury investigator who informed him that a subpoena had been issued. The subpoena was never served upon the witness. The court determined that: “The [trial] court sрecifically found that [the witness] did not appear voluntarily. . . . Thus, there was no waiver of the statutorily required service of a subpoena containing an advisement of rights.” People ex rel. Gallagher v. District Court,
Although defendant urges us to infer from Gallagher that this statutory right cannot be waived, we decline to do so. Gallagher does not hold that the right cannot be waived; it merely holds that it was not waived under the circumstances there present. Hence, we conclude that People ex rel. Gallagher v. District Court, supra, interprets the “target” witness’ statutory right to advance written advisement upon a subpoena as one which may be waived by a voluntary appearance.
Here, there is no controversy as to whether defendant was such a “target” witness. Defendant initially was served with a subpoena bearing an advisement. If she possessed any doubt that she was a “target,” she was so informed in the letter notifying her that the subpoena had been cancelled because she was told therein that an indictment could issue against her as a result of the investigation.
Defendant chose to appear and to testify before the grand jury despite the fact that the subpoena had been cancelled. On this basis, and with record support, the trial court made a factual finding that defendant appeared voluntarily and testified by choice.
After cancellation of her subpoena, defendant had the option to appear, although she was not compelled to do so, or to decline to appear unless, or until, the prosecution reissued a subpoena. The record also reflects that defendant was verbally advised of her rights prior to her testimony at each appearance before the grand jury, and she does not argue that this was insufficient to protect her constitutional rights. Therefore, the trial court‘s finding that defendant, although clearly a “target,” could and did waive her statutory right to service of an advisement-containing subpoena by voluntarily appearing before the grand jury is supported by the record and cannot be overturned on review.
C.
Alternatively, defendant contends that, even if the provisions of
Simply stated, we do not categorize the decision to cancel her subpoena, even if to avoid giving her the prior statements, as prosecutorial misconduct. She was informed that the subpoena had been cancelled. She was informed that she could still appear and explain her involvement. She was informed that an indictment could issue against her. All of this information was correct. Therefore, we conclude that the record supports the trial court‘s finding that defendant testified voluntarily, and we will not disturb that finding on appeal. See People v. Corley, 698 P.2d 1336 (Colo. 1985).
Defendant‘s reliance upon People ex rel. Gallagher v. District Court, supra, is misplaced. The witness in that case appeared pursuant to notification by a grand jury investigator that he had been subpoenaed to testify. The court found that although the subpoena had not actually issued, his appearance was nonetheless involuntary. Although defendant here may have deemed it necessary to appear, such would have been a personal decision, quite distinct from a misapprehension that she was under subpoena to appear.
D.
Similarly, we disagree with defendant‘s contentions that she was denied her statutory right to view her prior statements. As the trial court found, the right to examine prior statements belongs only to summoned witnesses. See
The right to view prior statements was included in the statutory reforms to protect summoned witnesses from deliberate “perjury” traps. See S.B. 186 Hearings. Here, as we have discussed, defendant was under no
II.
Defendant also argues that her constitutional right to effective assistance of counsel was violated as a result of the prosecution‘s use of Labriola as an informant. Specifically, defendant contends that, because she was represented by an attorney, any contact with her initiated by Labriola in his capacity as a prosecution informant was improper. We disagree.
The Sixth Amendment right to effective assistance of counsel has not been found to attach when a person appears before a grand jury, even if that person is a subject of the investigation. See United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992); In re Special September 1978 Grand Jury, 640 F.2d 49 (7th Cir. 1980). Hence, the right to counsel during grand jury proceedings is purely statutory; therefore, constitutional effective assistance of counsel standards are not implicated. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). And, under the federal system the prohibition against communications with a party known to be represented by an attorney is not violated by use of an undercover informant prior to the filing of formal charges. United States v. Ryans, 903 F.2d 731 (10th Cir. 1990); cf. People v. Hyun Soo Son, 723 P.2d 1337 (Colo. 1986) (Sixth Amendment right to counsel attaches after charges are pending not when a person becomes a suspect or a focal point of an investigation).
Pursuant to the Colorado grand jury statute, the right to counsel is limited to the presence and advice of counsel during questioning and, therefore, differs from the right to be represented by counsel during trial. See S.B. 186 Hearings. Defendant‘s counsel was present and advised her throughout the grand jury questioning. Therefore, we perceive no deprivation of her statutory right to counsel relative to her communications with Labriola.
To the extent that defendant argues that the inability to review her previous statements or that the pleas by Labriola to misinform the grand jury in order to protect him rendered the assistance provided by her attorney ineffective, we simply note that defendant was under no compulsion to testify at all and was under no obligation to heed any entreaties by her former cohort to testify falsely.
III.
Defendant next asserts that the prosecution elicited and used previously immunized information during the grand jury proceedings and that dismissal of the entire indictment is therefore warranted. We disagree.
The People concede that defendant was granted an informal promise of immunity by the Arapahoe County district attorney as to the use of her “off the record” statements. Violation of such an informal agreement implicates the principles of due process and fundamental fairness. People v. Fisher, 657 P.2d 922 (Colo. 1983).
The trial court went further however, and found that formal immunity had been granted and that the use of these immunized statements was directly connected to count one of the indictment and dismissed that count, although all other counts were supported by overwhelming independent evidence.
Here, the record reflects that defendant approached the Arapahoe County district attorney‘s office and inquired as to whether attending and videotaping a dogfight would be a crime. After she was informed that it wоuld be, defendant asked to go “off the record” and revealed that she had already attended a dogfight. Although a deputy district attorney present at the conversation indicated that he believed a grant of use immunity had been given as to those statements, no formal order of immunity was ever entered by any trial court.
The record of the grand jury hearings indicates that defendant testified concerning this dogfight and about her contact with the Arapahoe County district attorney‘s office. The record also reveals that information concerning this dogfight, as well as the other dogfighting incidents, came to the attention of law enforcement from numerous other witnesses and sources.
Although we do not agree that this record supports the trial court‘s determination that formal immunity had been granted or that there was insufficient evidence beyond the purportedly immunized statements to support probable cause on count one of the indictment, the record amply supports the trial court‘s evidentiary finding that the remaining counts of the indictment were supported by sufficient independent evidence, and this ruling will, therefore, not be disturbed on appeal. See People v. Fish, 660 P.2d 505 (Colo. 1983).
To the extent that defendant argues that the immunized statements werе used indirectly in the investigation, we agree with the trial court‘s finding that the information provided by defendant in the immunized statements was lacking in detail, and the danger of its being used to influence the direction of the investigation or to refresh or expand the recollection of any witnesses was so minimal as to preclude such use beyond a reasonable doubt.
IV.
Defendant alleges that prosecutors spoke with grand jurors off the record, invited grand jurors to prosecution offices for irregular meetings, screened grand jury questions, and corrected transcripts of the grand jury proceedings without consent from the court. She urges us to utilize this court‘s supervisory powers to dismiss the indictment because of this prosecutorial misconduct.
We conclude that a supervisory power of this court to sanction prosecutorial misconduct by ordering the dismissal of an indictment is uncertain. We further conclude that, even were such supervisory power available for that purpose, dismissal of the indictment would not be warranted here.
The procedures used here were irregular under
This court has dismissed a criminal action in which it was determined that the behavior of government agents was so outrageous as to violate fundamental fairness and to shock the universal sense of justice. People v. Auld, 815 P.2d 956 (Colo. App. 1991); see also Bailey v. People, 630 P.2d 1062 (Colo. 1981) (implicitly recognizing that a claim of deprivation of due process may result from outrageous government conduct); People v. Aponte, 867 P.2d 183 (Colo. App. 1993).
However, as a statutory court, this court does not possess general powers of supervision over lower courts, or attorneys appearing therein, except for the ability to issue “any writs, directives, orders, and mandates necessary to the determination of cases within its jurisdiction.”
Prosecutorial misconduct during grand jury proceedings can result in dismissal if actual prejudice accrues to the defendant or the misconduct compromises the structural integrity of the grand jury proceedings to such a degree as to allow for the presumption of prejudice. People v. Rickard, 761 P.2d 188 (Colo. 1988); cf. Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S:Ct. 2369, 101 L.Ed.2d 228 (1988) (in federаl system, supervisory powers may not be invoked to circumvent the harmless error analysis prescribed by
Here, after reviewing the grand jury hearing transcripts and affidavits submitted by the court reporter and the deputy district attorneys involved, the trial court found that these procedural defects could not have affected the decision by the grand jury to return an indictment and that there was, therefore, no resulting prejudice to defendant. Neither did the trial court find that these irregularities were so extreme as to compromise the integrity of the grand jury investigation to such a degree that they violated defendant‘s right to a fundamentally fair proceeding.
The grand jurors were sworn to render a determination as to probable cause based upon the investigation and without regard to malice, ill will, fear, or favoritism. See
The trial court found that any improper conduct by the district attorneys which might have taken place during unrecorded proceedings could not have influenced the grand jury‘s determination because of the strength of the evidence which was properly presented. The trial court also found that the changes which the district attorneys ordered to the transcripts after the indictment was returned were, in fact, minor corrections that were not material to the substance of, and did not change the meaning of, any testimony. Therefore, the trial court concluded that the inappropriate actions of the district attorneys had not so undermined the integrity of the judicial process as to allow a presumption that defendant‘s due process rights had been violated.
The record of the grand jury proceedings also indicates that, while the district attorneys may have screened some questions, the grand jurors were given the opportunity to question, and did question, most witnesses in addition to examination by the district attorneys. Thus, we agree with the trial court that the irregularities here were harmless. See People v. Rickard, supra.
Not only has defendant failed to prove prejudice because of the grand jury irregularities, as we have determined, she also has failed to demonstrate that any prosecutorial misconduct occurred which affected her constitutional rights to due process. Accordingly, dismissal of the indictment was not warranted.
Furthermore, we reject defendant‘s argument that she is entitled to an evidentiary hearing in which she may call the court reporter and the grand jurors to establish prejudice. The trial court reviewed the materials submitted in support of, and in opposition to, defendant‘s motion to dismiss the indictment for prosecutorial misconduct and found that, no matter what the prosecuting attorneys had done during the unrecorded proceedings or the off the record meetings, no reasonable grand jury could have failed to return an indictment based upon the evidence which was presented during the recorded proceedings. Based upon this finding, the trial court declined to allow an evidentiary hearing on the matter.
We further note that a trial court may determine motions testing the validity of an indictment upon grounds other than lack of probable cause based only upon the grand jury record and argument of counsel, unless cause is shown for the need for additional evidence.
While we do not condone the lapses of proper procedure in which the district attorneys here indulged, absent a showing that the inappropriate conduct may have affected the validity of the indictment, the trial court was under no obligation to breach grand jury secrecy and to conduct such a heаring. See People v. District Court, 199 Colo. 398, 610 P.2d 490 (1980) (grand jury secrecy should not be breached based upon only speculation that improper conduct by the district attorney occurred); see also People v. Rickard, supra (disclosure of grand jury proceedings must be made only upon a compelling need which outweighs the countervailing policy of secrecy).
V.
Defendant argues that the dismissal of the first count of the indictment rendered the remainder of the indictment unconstitutionally vague. We disagree.
An indictment is not fatally vague if it sufficiently advises the defendant of the charges such that he or she may adequately defend against them. People v. Gable, 647 P.2d 246 (Colo. App. 1982). And, the sufficiency of an indictment is measured by substance, not form. People v. Ybarra, 652 P.2d 182 (Colo. App. 1982).
We conclude that the dismissal of count one, which included the factual statement, did not render the remainder of the indictment so vague as to provide defendant with insufficient information as to the charges. The factual statement did not contain any immunized information and to hold that it became nullified as to the other counts of the indictment would needlessly exalt form over substance.
VI.
Defendant also argues that the news gathering activities of videotaping and reporting a dogfight are protected by the First Amendment and, alternatively, that attending a dogfight for the purposes of engaging in such activities cannot support a conviction for dogfighting under the statute because the necessary mental state is lacking. We disagree with both contentions.
A.
(1)(a) No person shall cause, sponsor, arrange, hold оr encourage a fight between dogs for the purpose of monetary gain or entertainment.
(b) For the purposes of this section, a person encourages a fight between dogs for the purposes of monetary gain or entertainment if he:
(I) Is knowingly present at such a fight
Engaging in news gathering activities does not guarantee the press a constitutional right of special access to information that is not generally available to the public. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Nor does the First Amendment permit the press to engage in activities that are otherwise illegal for the purpose of reporting the news. See State v. McCormick, 101 N.M. 349, 682 P.2d 742 (N.M.App. 1984) (First Amendment gives no greater right to press than to public to cross barricades into nuclear waste disposal project during activist demonstration); Stahl v. State, 665 P.2d 839 (Okla. Crim. App. 1983)
The dogfighting statute does not prohibit a news reporter from gathering or disseminating information about dogfighting. It simply prohibits attendance, by anyone, at any dogfight that is presented for profit or entertainment.
B.
Neither do we agree with defendant‘s contention that the Colorado dogfighting statute only criminalizes attendance at a dogfight if the attendee is entertained or receives some monetary gain. We read the statute differently.
By its plain language, the statutory requirement that the fight be “for the purpose” of entertainment or monetary gain serves to distinguish this type of dogfight from the type of confrontation that happens unintentionally because of a chance encounter between two or more uncontrolled dogs. See
The statutory requirement that in order to encourage a dogfight a person must “knowingly” attend, serves to distinguish that sort of attendee from people who inadvertently find themselves at a dogfight, or from someone at the scene who is unaware that a dogfight is taking place. See
C.
Defendant contends, however, that, unless a fun or profit state of mind is attributed to the attendee, the statute is unconstitutionally overbroad because it criminalizes mere presence at a dogfight. We do not agree.
The “knowing presence” requirement of the statute effectively protects those persons who might inadvertently find themselves at a dogfight. Cf. Peck v. Dunn, 574 P.2d 367 (Utah 1978) (sensible interpretation of ordinance forbidding spectators at animal fights is that such purposeful presence does not include innocent passersby); see also State v. Abellano, 50 Haw. 384, 441 P.2d 333 (1968) (statute forbidding mere presence at an animal fight is not sufficient to state with clarity the act proscribed); State v. Wear, 15 Ohio App.3d 77, 472 N.E.2d 778 (1984) (statute forbidding mere presence at an animal fight, as opposed to knowing presence, is insufficient to exclude an innocent passerby).
As to any person who attends a dogfight knowingly, however, the plain language of the statute indicates that the General Assembly has determined that the presence of spectators at dogfights encourages dogfighting activity, whether such spectators are enthusiastic, neutral, or disgusted observers. A spectator is “one that looks on or beholds, especially one witnessing an exhibition,” but is not necessarily a fan of the event witnessed. See Webster‘s Third New International Dictionary at 2188. And, prohibiting knowing presence of spectators at animal fights is consistent with the legislative purpose to prevent such fights because, without the “knowing presence” of spectators, much of the “sport” of the fights would be eliminated. People v. Superior Court, 247 Cal.Rptr. 647, 201 Cal.App.3d 1061 (1988). Cf. State v. Tabor, 678 S.W.2d 45 (Tenn. 1984) (prohibition of knowing presence at animal fight is reasonably related to the discouragement of such fights).
Therefore, we conclude that the statutory prohibition against knowingly attending a dogfight held for profit or entertainment is constitutional. There is no need to attribute a more specific mental state to the attendee.
VII.
Although defendant does not argue that the filmed confrontation upon which her convictions were based was not arranged for the purpose of entertainment or monetary gain, she contends that it was not a fight between dogs within the meaning of the statute because the dogs were muzzled. We disagree.
A review of the videotaped confrontation between the dogs shows that the two dogs were set loose to fight with each other and did so vigorously. But for the muzzles, the animals could well have inflicted and sustained injuries similar to those which occur during unmuzzled fights. The videotape also shows that one of the dogs was able to get his teeth outside the muzzle and that the fight was stopped at that point by the handlers. Under the circumstances, we reject defendant‘s contention that the muzzled confrontation was a mere demonstration, or “photo opportunity.” The evidence was sufficient for the jury to conclude that the dogs were fighting each other in any ordinary sense of the word. See Kogan v. People, 756 P.2d 945 (Colo. 1988).
The judgments are affirmed.
CRISWELL, J., concurs.
TAUBMAN, J., dissents.
Judge TAUBMAN dissenting.
Because I respectfully disagree with the majority‘s construction of the grand jury statute, its upholding the constitutionality of the dogfighting statute, and its assessment of prosecutorial misconduct, I dissent.
I. Interpretation of the Grand Jury Statute
The majority concludes that Bergen waived her rights under the grand jury statute and thus was nоt entitled to the prosecutorial immunity it affords. I disagree with both that conclusion and the majority‘s interpretation of the statute.
The majority‘s interpretation rests on the premise that the statute is clear and unambiguous on its face. In my view, such is not the case.
The majority holds that since the purpose of formal written advisement of rights is to protect those who are forced to appear,
A statute should be construed as a whole to give consistent, harmonious, and sensible effect to all of its parts and to render it effective in accomplishing the purpose for which it was enacted. Thus, if separate clauses within a statute may be reconciled by one construction but would conflict under a different interpretation, a construction which results in harmony rather than inconsistency should be adopted. People v. District Court, 713 P.2d 918 (Colo. 1986).
In my view, the plain meaning of the language warrants a different interpretation from that of the majority. Section
Subsection
any witness who is not advised of his rights pursuant to paragraph (a) of this subsection (4) shall not be prosecuted or subjected to any penalty or forfeiture for
or on account of any transaction, matter, or thing concerning which he testifies or any evidence he produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him in any court. (emphasis added)
Since I conclude that subsection (4)(b) confers prosecutorial immunity on invited witnesses, such witnesses cannot “waive” their right not to be prosecuted.
The term “any witness” in this subsection, given its plain meaning, encompasses all witnesses not advised of their rights on a subpoena issued under
Thus, I conclude that the plain meaning of subsection (4)(b) protects all witnesses testifying without a subpoena containing a formal written advisement. However, when subsection (4)(b) is read in context with the other sections of the statute, the scope of “any witness” becomes narrower, but not as narrow as the majority holds.
Section
My reading of subsection (4)(b) in context with the other statutory provisions, mandates that it be construed to include all witnesses who are not subpoenaed under subsection (4)(a) but who do not appear of their own initiative under
When the language of the statute is construed as a whole and
Subsection 4(b) provides immunity from prosecution to “any witness who is not advised of his rights pursuant to [subsection
To assist in understanding the scope of
Nonetheless, I agree that subsection (4)(b) cоuld be interpreted to apply only to subpoenaed witnesses, as the majority holds. Alternatively, it could be interpreted, as Bergen contends, to apply broadly to all witnesses who were not advised of their rights pursuant to subsection (4)(a), including witnesses who request to testify under
However,
In construing the language of all the pertinent statutory provisions to render each subsection harmonious with the others, I conclude that subsection (4)(b) was intended to be read broadly to include invited witnesses.
If the statutory language leads to alternative constructions and its intended scope is unclear, a court may examine pertinent legislative history to determine which construction is more in accordance with the objectives of the legislation. Constructions which defeat the оbvious legislative intent should be avoided. See
These alternative constructions of subsection (4)(b) render the statute sufficiently ambiguous to warrant consideration of the legislative history.
One of the primary purposes of the reforms to the grand jury statute proposed in the 1977 legislative session was to provide witnesses with protections against prosecutorial misconduct, including harassment, perjury traps, and prosecutors’ use of the grand jury to circumvent constitutional protections and gain access to otherwise protected information. As part of this reform, the General Assembly intended to protect target witnesses by requiring that they receive a formal written advisement of rights, access to previous grand jury testimony, access to other statements attributed to the subpoenaed witness in the prosecutor‘s possession, the right to have counsel present during testimony, and the ability to have a court review the proceedings for probable cause. See Tape Recordings of Senate Judiciary Committee on S.B. 186, 51st General Assembly, 1st Session (February 16 and March 7, 1977) (S.B. 186 Hearings).
The legislative history further indicates that the General Assembly‘s intent in providing for a written advisement on the subpoena instead of during the hearing was to notify target witnesses of their rights prior to testifying. This advisement was required for every witness in the initial bill, but was later amended as a compromise to require an advisement only for potential target witnesses.
The advisement was designed not only to protect target witnesses from self-incrimination but to allow them to seek counsel and to permit them to exercise other rights provided in the statute, such as obtaining statements in the prosecution‘s possession. S.B. 186 Hearings, supra; see People ex rel. Gallagher v. District Court, 198 Colo. 468, 601 P.2d 1380 (1979) (failure to subpoena witness with written advisement of rights prior to grand jury hearing denied witness’ privilege against self-incrimination because it prevented him from exercising that privilege prior to the hearing).
The legislative testimony also reveals that subsection (4)(b) was intended to protect both subpoenaed and invited witnesses not identified initially as “target witnesses” but who might become target witnesses on the basis of their grand jury testimony. One senator expressed a particular desire to create substantive rights for any witness who could become a target. S.B. 186 Hearings, supra.
A representative from the District Attorneys’ Association agreed that subsections (4)(a) and (4)(b) offered a good compromise. He maintained: “[M]y solution . . . is these matters of notice and advisement apply to anybody you know is or would become a defendant and without that [notice and advisement] they [sic] wouldn‘t become a defendant.” He also agreed that if a district attorney later charged or indicted an unadvised witness, that failure to give notice and advisement would be grounds to quash an indictment. S.B. 186 Hearings, supra.
Even though the majority concludes that the statute is clear on its face, it discusses the legislative history and recognizes that “the primary focus of the reformers was to provide expanded rights for ‘target witnesses.‘” Despite its acknowledgment of this legislative intent, the majority concludes that “target witnesses” can waive their statutory right to a subpoenaed advisement by voluntary appearance.
In my view, the legislative history demonstrates that the General Assembly intended to protect any witness who was or could become the target of the grand jury investi-
Furthermore, People ex rel. Gallagher v. District Court, supra, is distinguishable. There, the supreme court dismissed an indictment because the prosecution failed to subpoena a witness pursuant to
In dictum the supreme court implied that a witness appearing voluntarily may waive service of the subpoena and the rights and protections afforded under that subpoena. However, it did not address the issue specifically because the trial court had found that the witness did not appear voluntarily.
Here, Bergen did not initially request to testify pursuant to
I would hold that an invited witness is afforded immunity from prosecution under subsection (4)(b) because he or she is neither a witness requesting to testify nor a subpoenaed witness, afforded rights and protections under subsection 4(a). Thus, I would conclude that the indictment must be dismissed on this basis.
II. Constitutionality of the Dogfighting Statute
I would also conclude that the dogfighting statute must be construed narrowly here so as to exempt Bergen‘s conduct and to avoid a finding of unconstitutionality.
The statute which formed the predicate for Bergen‘s convictions,
(1)(a) No person shall cause, sponsor, arrange, hold, or encourage a fight between dogs for the purpose of monetary gain or entertainment.
(b) For the purposes of this section, a person encourages a fight between dogs for the purposes of monetary gain or entertainment if he:
(I) Is knowingly present at such a fight. . . .
Bergen contends that she was improperly convicted for being “knowingly present” at a dogfight, in part because attending such a fight in her capacity as a news reporter was constitutionally protected under the First Amendment.
The United States Supreme Court has held that news-gathering is not without its First Amendment protection, for “without some protections for seeking out the news, freedom of the press could be evisсerated.” Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626, 639 (1972). However, the court also declared in that case that “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” Id. at 684, 92 S.Ct. at 2658, 33 L.Ed.2d at 641. See Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) (federal government‘s refusal to validate passports to Cuba sustained even though such action restricted flow of information concerning that country). Moreover, the state has a legitimate interest in prohibiting attendance at animal fights. See City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S.W. 791 (1888). Accordingly, the state might be able constitutionally to prohibit all persons from attending dogfights and criminalize such conduct.
Here, however,
Statutes are not unconstitutional because of facial overbreadth unless the overbreadth is “not only real but substantial as well, judged in relation to the statute‘s plainly legitimate sweep.” People v. Batchelor, 800 P.2d 599, 601 (Colo. 1990), citing Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). Moreover, statutes confronting First Amendment freedoms must be specific enough not to inhibit the exercise of those freedoms. People v. Batchelor, supra.
Bergen argues that the statute is unconstitutionally overbroad because it operates to prevent a journalist from presenting a brief and simple demonstration in which precautions are taken to assure that the dogs will not be injured. To the extent that Bergen seeks special protection for journalists under her overbreadth claim, I would rejеct her argument. See Branzburg v. Hayes, supra.
However, I perceive that the statute here should be construed as facially overbroad because, unless narrowly construed, it would bring within its terms actions clearly beyond the statute‘s “plainly legitimate sweep.” See Whimbush v. People, 869 P.2d 1245 (Colo. 1994) (Colorado‘s criminal extortion statute facially overbroad); People v. Smith, 862 P.2d 939 (Colo. 1993) (Colorado‘s harassment statute facially overbroad).
Construed as the People urge and the majority holds, the statute effectively establishes a presumption that any individual “knowingly present” at a dogfight “encourages a fight between dogs for the purpose of monetary gain or entertainment. . . .” See
I recognize that two other courts have held constitutional against overbreadth challenges cock fighting statutes that prohibit individuals from being “knowingly present.” See State v. Tabor, 678 S.W.2d 45 (Tenn. 1984); Peck v. Dunn, 574 P.2d 367 (Utah 1978).
In both cases, however, the courts noted that the statutes applied to spectators, thereby making the statutes analogous to the limitation in
People v. Superior Court, 247 Cal.Rptr. 647, 201 Cal.App.3d 1061 (1988), also relied upon by the majority, is distinguishable. There, the court upheld a statute punishing knowing presence of spectators at animal fights against a vagueness challenge by narrowly interpreting the statute. No challenge was made to the statute on overbreadth grounds.
Moreover, the “knowing” requirement in the dogfighting statute does not save it from overbreadth concerns. See Whimbush v. People, supra (a specific intent requirement does not eliminate overbreadth concerns when the effect associated with the intent provision encompasses a substantial amount of protected activity).
It is a cardinal rule of statutory construction that courts must construe statutes in such a manner as to avoid, if possible, finding them unconstitutional. See
Here, the statute as construed by the majority would bring within its sweep constitutionally protected conduct not only for journalists but for others as well. In order to avoid such a finding of unconstitutiоnality, I would interpret the statute narrowly so that the phrase “encourages a fight between dogs for the purpose of monetary gain or entertainment” applies only to the attendee at a dogfight who is knowingly present “for the purpose of monetary gain or entertainment.” Under this construction, a humane society member attending a dogfight to investigate and expose its evils would not be presumed to be there for purposes of monetary gain or entertainment and, thus, would not come within the embrace of the statute. Similarly, an animal control officer would not be acting for the purpose of monetary gain or entertainment and would not be at risk for prosecution by attending a dogfight.
Here, Bergen claimed that she personally was not entertained by the dogfight she witnessed. Similarly, it is arguable whether she received any monetary gain from attending the dogfight. She was not betting on the dogfight, and she would have received her salary from the television station which employed her whether she was working on the dogfight story or another story. Thus, consistent with my construction of the statute, the jury should have been instructed that it must acquit Bergen if it found she was not present at the dogfight for purposes of monetary gain or entertainment.
Indeed, this interpretation is consistent with the legislative intent, which was to prohibit entertainment and gambling for dog owners and spectators at dogfights, since such dogfights were viewed as “a kind of animal cruelty which should be treated as a seriоus crime.” Tape recordings of Hearings before the House Judiciary Committee on Senate Bill 183, 59th General Assembly, 1st Session (April 14, 1981). This interpretation is also consistent with those of other courts which have construed similar statutes to apply only to those attending animal fights purposefully and intentionally. See State v. Tabor, supra; People v. Superior Court, supra. Significantly, I am aware of no other case upholding a conviction against one attending an animal fight for any purpose other than personal enjoyment.
If one of the alternative means of committing the offense charged is to perform an act protected by the constitution, a general verdict of guilt for that offense must be set aside. James v. People, 727 P.2d 850 (Colo. 1986). Similarly, if, as here, one of the alternative means of committing the offense charged is not within the scope of a statute, so as to avoid a finding of that statute‘s unconstitutionality, the general verdict of guilt must be set aside as well. Here, the jury did not specify which among the alternative acts or purposes set forth in
III. Prosecutorial Misconduct
The majority opinion addresses only one part of a two-part allegation of prosecutorial misconduct made by Bergen. The majority responds only to Bergеn‘s allegation that the prosecution conducted a number of “off the record” proceedings which amounted to prosecutorial misconduct. However, more significantly, Bergen also contends that the prosecution‘s intentional cancellation of her subpoena in order to avoid providing her with statements in its possession attributed to her, as required under the grand jury statute, amounted to prosecutorial misconduct undermining the structural fairness and integrity of the grand jury statute.
A.
As to this latter contention, I would hold that there is sufficient evidence to warrant dismissal of the indictment based on the prosecution‘s intentional cancellation of the subpoena in order to deny Bergen other statutory rights.
The majority holds that an indictment can be dismissed if the defendant shows actual prejudice, but it then concludes that Bergen did not meet this test. The majority also recognizes that an indictment may be dismissed if the prosecutorial misconduct undermines the integrity of the grand jury proceedings, but determines there was no such misconduct here.
A court may exercise its supervisory power to protect judicial integrity in the face of governmental misconduct which amounts to a denial of due process. People v. Auld, 815 P.2d 956 (Colo. App. 1991). A court may dismiss a grand jury indictment because of prosecutorial misconduct when those “few, clear rules which were carefully drafted . . . to ensure the integrity of the grand jury‘s functions” have been violated. United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735, 1741, 118 L.Ed.2d 352, 364 (1992). Supervisory dismissal is warranted when the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair. Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).
Unlike the limited statutory protections given to grand jury witnesses on the federal level, the General Assembly has adopted broad protections for its grand jury witnesses under
Here, the prosecution violated statutory provisions intended to protect grand jury witnesses from self-incrimination. The language of
The majority simply concludes that Bergen was not entitled to her statements because she was not under a subpoenа. It fails to address the admitted intent of the prosecution in cancelling the subpoena to prevent Bergen from obtaining statements in the prosecution‘s possession attributed to her. Nor does the majority note that Bergen‘s subpoena was not cancelled until after the trial court issued an order directing the People to provide Bergen with copies of her prior statements.
The General Assembly specifically enacted
Under my interpretation of the statute, once the prosecution cancelled the subpoena to avoid providing Bergen with statements attributed to her, it relinquished its right to indict her based upon her subsequent grand jury testimony because the protections the subpoena ensured were no longer present. This is the type of fundamental misconduct that compromises the basic structural protections intended by the General Assembly. Accordingly, I would dismiss the indictment.
Furthermore, the indictment should be dismissed to protect the integrity of the grand jury proceedings. The legislative history indicates the reforms to the grand jury statute were spurred by prosecutorial abuses of the grand jury process. Unless the court‘s suрervisory power is invoked here, the integrity of the grand jury process will again be diminished.
I also disagree with the majority that the admitted prosecutorial violations of the grand jury statute and Colorado Rules of Criminal Procedure did not warrant remedial action. If the indictment were not dismissed, these other violations were sufficiently alleged to have required a further evidentiary hearing.
Bergen alleged, based upon an affidavit obtained from the court reporter, that prosecutors spoke with grand jurors off the record, that grand jurors were invited to the prosecution‘s offices, and that the prosecution corrected transcripts of the proceedings without consent from the court. Bergen also claims, based on the court reporter‘s affidavit, that the prosecutors instructed the grand jury not to question target witnesses directly.
All of this conduct violates provisions of
The majority holds that the alleged violations were technical and therefore harmless. It also concludes that the secrecy of the grand jury proceedings would be breached if Bergen were allowed to call the court reporter and grand jurors to testify. In so holding, the majority concludes that a hearing could not have made a difference because sufficient evidence on which to base the indictment was presented regardless of what evidence would have been elicited at such hearing.
I disagree with this analysis. The majority improperly concludes that the grand jurors would be required to discuss the reasons and basis for their indictment. However, the only testimony Bergen sought to elicit from the grand jurors and the court reporter was the nature of the “off-the-record” conversations held.
The majority also concludes that the defendant failed to establish any prejudice from the alleged prosecutorial misconduct based on the affidavits submitted. Again, I disagree.
One affidavit from the court reporter clearly states that she cannot go into the details of “off-the-record” conversations without the court‘s permission. If a hearing had been held, then the court would know with certainty the nature and extent of the prosecutor‘s conduct and whether any prejudice occurred.
Absent a finding that the prosecutors’ conduct was prejudicial, dismissal of the indictment was not warranted. However, I believe that Bergen sufficiently established the presence of enough prosecutorial misconduct to warrant a hearing on whether it was actually prejudicial.
The record demonstrates that the prosecution admitted to off-the-record conversations during the grand jury proceedings, although it explained that these conversations were administrative in nature, concerning such topics as when to reconvene and when to take a break. The prosecution further admitted that grand jurors were invited to the district attorney‘s office to review transcripts of testimony which occurred during sessions they could not attend but that only “pleasantries” were exchanged. Also, the prosecution admitted that it corrected the grand jury transcripts without court permission; it explained that the only corrections made were typographical and supplied the list of the corrections it requested to be made.
However, since the court reporter declared in her affidavit that she could not divulge the details of the prosecutor‘s conduct because of her oath of secrecy, Bergen was prevented from establishing the extent of the statutory violations. See
Accordingly, I would either dismiss the indictment, or, at a minimum, I would remand for an evidentiary hearing regarding the prosecution‘s off-the-record conduct.