People v. Zupancic

557 P.2d 1195, 192 Colo. 231, 1976 Colo. LEXIS 734

• Court: Supreme Court of Colorado
• Decided: December 13, 1976
• Docket: 27118
• Status: Published

Opinions

MR. JUSTICE ERICKSON

delivered the opinion of the Court.

On November 22, 1974, an indictment was returned in the Pueblo District Court charging the defendant, Donald J. Zupancic, with jury-tampering. 1971 Perm. Supp., C.R.S. 1963, 40-8-609.¹ The defendant filed a motion to dismiss which was granted by the court. The prosecution brings this appeal, alleging that the trial court erred in dismissing the indictment. We affirm.

The acts which brought about the indictment occurred in the Silver Saddle Nightclub which is located in Pueblo. Barbara Chrisman, an employee of the nightclub, was a member of the 1974 Pueblo County Statutory Grand Jury. She testified that she had seen the defendant in the Silver Saddle on numerous occasions and that the defendant had repeatedly questioned her and demanded information about who appeared and what the evidence was before the grand jury. As a grand juror, Barbara Chris-man had taken an oath of secrecy. Accordingly, she declined to discuss the activites or the evidence before the grand jury. Even though she declined to discuss her service as a grand juror, the defendant, nevertheless, persisted in his questioning. As a result, she notified the district attorney, and an indictment was returned against the defendant.

The history of grand jury secrecy is closely tied to abuses which occurred in the charging process in England:

“The right of the grand jury to examine witnesses and deliberate in private dates back at least to the Earl of Shaftesbury’s case in 1681. The common law concept of grand jury secrecy developed primarily from a need to protect the juror and the accused from the application of improper pressure by the Crown. . . .” Y. Kamisar, W. La Fave, and J. Israel, Modern Criminal Procedure, Pt. 3, Ch. 15, 884 (4th ed. 1974).

The Supreme Court of the United States adopted the following reasons for the continuation of secrecy of grand jury proceedings:

“(1) To prevent the escape of those whose indictment may be contemplated, (2) to insure the utmost freedom of the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” United States v. Proctor & Gamble Co., 356 U.S. 677, 681 fn. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

Any effort to tamper with or obstruct the due administration of its function is reprehensible. Jurors and witnesses should be protected vigorously from outside influences. See Caldwell v. United States, 218 F.2d 370 (D.C. App. 1954). Any attempt to corrupt, influence, or tamper with the administration of justice has been condemned and proscribed by the legislature. The Colorado jury-tampering statute provides, in pertinent part:

“Jury-tampering. A person commits jury-tampering if, with intent to influence a juoror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”

The statute is also implemented by our grand jury rules, which provides:

“Rule 6.2. Secrecy of Proceedings — Witness Privacy

“All persons associated with a grand jury and its investigations or functions should at all times be aware that a grand jury is an investigative body, the proceedings of which shall be secret. Witnesses or persons under investigation should be dealt with privately to insure fairness. The oath of secrecy shall continue until such time as an indictment is made public, if an indictment is returned, or until a grand jury report is issued dealing with the investigation. Nothing in this rule shall prevent a disclosure of the general purpose of the grand jury’s investigation by the prosecutor.” Crim. P. 6.2 (1975 Supp.)

In this case, the trial judge, in considering a motion to dismiss the indictment, reviewed the transcript of the grand jury proceedings to determine if there was sufficient evidence before the grand jury to support the indictment. The dismissal here was predicated not only upon the failure of the indictment to charge an offense, but also upon the quantum of evidence before the grand jury.

We have declared on more than one occasion that the grand jury is the arbiter of probable cause and that the trial judge is not to measure or weigh the evidence before the grand jury. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971); People v. Clifford, 105 Colo. 316, 98 P.2d 272 (1939). The trial court’s review of the grand jury transcript to determine whether the evidence before the grand jury established probable cause is disapproved.²

The alleged acts of the defendant fall within the proscriptions of our penal statute. However, the indictment in this case failed to state a crime and did not square with the statute. The indictment returned against the defendant charged:

“THAT DONALD J. ZUPANCIC, between the 22nd day of September, A.D., 1974 and the 31st day of October, A.D., 1974, within the County of Pueblo and State of Colorado, with the intent to influence a juror’s action in a case, to-wit: violate the oath of secrecy attendant to a Grand Juror, did knowingly, and unlawfully attempt directly and indirectly to communicate with a juror other than as part of the proceedings in the trial of that case. . . .”

We said in People v. Xericos, 186 Colo. 21, 525 P.2d 415 (1974):

“The purposes of a criminal indictment by a grand jury are essentially twofold. First, it must give the defendant sufficient notice of the crime that has allegedly been committed so that a defense may be prepared. Tracy v. People, 65 Colo. 226, 176 P. 280 (1918). Second, it must define the acts which constitute the crime with sufficient definiteness so that the defendant may plead the resolution of the indictment as a bar to subsequent proceedings. People v. Allen, 167 Colo. 158, 446 P.2d 223 (1968). Accordingly, we have held in prior cases that where the acts constituting the offenses are not described by the statute, an indictment merely reciting the statutory words is insufficient. Schraeder v. People, 73 Colo. 400, 215 P. 869 (1923). We hold that this long-standing principle of law controls in this case. The result was a charge so vague as to prejudice the rights of the defendant.” (Emphasis added.)

The multiple vagaries and ambiguous references in the indictment in this case leave unanswered questions of who (the name of the juror or the identity of the person as a grand juror), what, where, and how. To meet the requirements of the Xericos case, where the acts constituting the offense are not described by the statute, as in this case, the acts which constitute the crime must be set forth with enough specificity to give notice to the defendant.³ For example, here the prosecution contends that the defendant attempted to induce “a grand juror” to disclose the names of the witnesses who appeared before the grand jury and their testimony. The indictment failed to disclose the prohibited conduct.

The judgment of the trial court is, therefore, affirmed.

MR. JUSTICE KELLEY dissents.

1 Now section 18-8-609, C.R.S. 1973.

2 The character of the evidence before the grand jury, as well as the quantum, is generally not a basis for attacking an indictment. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (“[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of Inadequate or incompetent evidence.”); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (indictment based solely on hearsay upheld).

3 See section 16-5-201, C.R.S. 1973 (requires inclusion in indictment of “the offense, the name of the person charged, and the time and place of committing the same, with reasonable certainty.”) (emphasis added); Crim. P. 7 (a)(2) (prerequisites for technical sufficiency of indictment). A motion for a bill of particulars, Crim. P. 7(g), to clarify the indictment would, of course, have been inappropriate and inexpedient insofar as indictments may not be amended, except in minor technical matters, without resubmission to the grand jury. See, e.g., Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); 1 C. Wright, Federal Practice and Procedure (Criminal) § 127 (1969). Moreover, a bill of particulars generally cannot save an insufficient indictment. As the Supreme Court said in Russell v. United States, supra:

“To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to serve. For a defendant would then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.”

See generally, 1 C. Wright, Federal Practice and Procedure (Criminal) § § 125, 126 (1969).