People v. Yascavage
101 P.3d 1090, 2004 WL 2711049 (2004)
Rule of Law:
Under Colorado's witness tampering statute, a defendant cannot be convicted of attempting to induce a witness to absent themselves from a proceeding unless that witness has been 'legally summoned,' meaning the witness is under a specific legal obligation imposed by a tribunal to appear.
Facts:
- Yascavage and Collier were in a relationship that ended, resulting in Collier obtaining a restraining order against Yascavage.
- In May 2000, Yascavage was arrested and taken into custody on charges of harassment and domestic violence.
- While in jail awaiting trial, Yascavage called a friend.
- During this recorded call, Yascavage told the friend that the charges might be dropped if someone 'got to' Collier and she failed to show up for court.
- Yascavage intended for the friend to induce Collier not to appear at the trial.
- At the time of Yascavage's call, Collier was listed as a potential witness but had not been served with a subpoena.
- Collier eventually testified at the trial, but there was no evidence she was under a formal legal obligation to appear at the time of the solicitation.
Procedural Posture:
- The State charged Yascavage with criminal solicitation to tamper with a witness.
- A jury trial was held where Yascavage was convicted of tampering (along with other charges).
- Yascavage appealed his conviction to the Colorado Court of Appeals.
- The Court of Appeals vacated the tampering conviction due to insufficient evidence regarding the 'legally summoned' element.
- The State (The People) petitioned the Colorado Supreme Court for certiorari review.
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Issue:
Does the statutory term 'legally summoned' in Section 18-8-707(1)(b) require that a witness be under an official legal obligation to appear, such as a subpoena or court order, in order for a defendant to be convicted of tampering by attempting to induce the witness's absence?
Opinions:
Majority - Justice Kourlis
Yes. The Court held that the phrase 'legally summoned' requires the witness to be under a specific legal obligation to the court to appear. The Court reasoned that while the tampering statute generally protects a broad class of people, subsection (1)(b) specifically includes the 'legally summoned' language, which must be given effect. Although 'legally summoned' is not strictly limited to a subpoena, it implies some action by an official tribunal creating a mandatory obligation to attend. Since the prosecution presented no evidence that Collier was under any legal obligation to appear at the time of the defendant's actions—such as a subpoena or court order—the element was not met. The Court distinguished this specific subsection from others in the statute that do not require legal process.
Dissent - Justice Coats
No. The dissent argued that the statute defines the crime based on the defendant's intent and belief, not the legal status of the witness. Justice Coats contended that the phrase 'legally summoned' describes the type of conduct the defendant is trying to induce (absenting oneself from a legal duty) rather than a precondition that must exist before the crime can be committed. The dissent emphasized that the legislature intended to protect all persons the defendant believes might be called as witnesses, and that factual impossibility (the lack of a current summons) should not be a defense to an attempt crime.
Analysis:
This decision significantly narrows the scope of the witness tampering statute regarding the specific act of inducing a witness to absent themselves. By strictly construing 'legally summoned,' the Court created a distinction between inducing a witness to withhold testimony (which requires no summons) and inducing a witness to not show up (which now requires a summons). This places a higher burden on prosecutors, who must prove that legal process had already been served or an order issued at the time of the tampering. It prevents convictions for 'absenting' tampering in the early stages of a case before formal subpoenas are issued.
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