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COLORADO COURT OF APPEALS
101 West Colfax Avenue, Ste 800
Denver, Colorado 80203
303-837-3785
303-864-4534 fax
DISTRICT COURT, LARIMER COUNTY,
STATE OF COLORADO
Hon. Ingrid Bakke, District Court Judge
Case No. 2011CR1056, Div. 3C
Plaintiff(s):
PEOPLE OF THE STATE OF COLORADO
Defendant( s):
JAMES BRODERICK
Attorney for Defendant:
Name: Patrick D. Tooley, # 15273
Thomas M. Dunn, #9395
Address: DILL DILL CARR STONBRAKER &
HUTCHINGS, PC
455 Sherman Street, Suite 300
Denver, Colorado 80203
Phone No.: 303-777-3737
Fax No.: 303-777-3823
E-mail: pdtooley@dillanddill.com
tdunn@dillanddill.com
A COURT USE ONLY A
Case No.: 11CA2623
JAMES BRODERICK'S ANSWER BRIEF
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 and
C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the
undersigned certifies that:
The brief complies with C.A.R. 28(g).
The brief contains 9247 words.
The brief complies with C.A.R. 28(k).
F or the party responding to the issue:
It contains, under a separate heading, a statement of whether such party agrees
with the opponent's statements concerning the standard of review and preservation for
appeal, and if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28 and C.A.R. 32.
Dated:
February 1, 2012 / ~ --7 /(7. ___ _
Patrl'ck D. Tooley ~
Thomas M. Dunn
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................... 1
TABLE OF AUTHORITIES ............................................ iii
STATEMENT OF ISSUES PRESENTED FOR REVIEW .................... 1
STATEMENT OF THE CASE .................................... 3
Course of Proceedings ........................................... 3
Statement of Facts ............................................... 5
Standard of Review .............................................. 8
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
1. The Trial Court Correctly Dismissed Count One Because it Was Not
Supported by the Sworn Testimony of Two Witnesses or Probable Cause.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
A. The Cryptic Note Fails to Satisfy the Strict
Requirements of the Two Witness Rule. .................. 11
B. The Trial Court Did Not Abuse Its Discretion
When it Dismissed Count One for Lack of
Probable Cause. ..................................... 17
C. Dismissal of Count One Was Proper on the
Additional Ground That the Challenged
Statement, as a Matter of Law, Was Not
Material. ........................................... 18
II. The Trial Court's Order Dismissing Count Seven Must Be Affirmed.
Count Seven is Legally Insufficient, Broderick's Testimony was Truthful,
and Count Seven Is Not Supported by Probable Cause ............ 21
i
A. Count Seven is Premised Upon a False Dichotomy; the Challenged
Statement and Allegation of Falsity Are Not Irreconcilable. .. 21
B. The Grand Jury Record Demonstrates thatLt. Broderick's Testimony
was Truthful. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
C. Count Seven Is Premised Upon a Theory of Liability Condemned by
Bronston v. United States. ............................. 30
D. The Trial Court Did Not Abuse Its Discretion In Finding Probable
Cause Was Lacking as to Count Seven .................... 36
IV. The Trial Court Did Not Abuse Its Discretion When it Found Count Eight
Was Not Supported By Probable Cause. In Addition, the Indictment Is
Legally Insufficient.
............................. 38
A. Count Eight Is Legally Insufficient. It is Premised Upon a False
Dichotomy and Lacks the Type of Precise Questioning Mandated by
Bronston . ........................................... 38
B. Count Eight Is Not Supported by Probable
Cause .............................................. 41
CONCLUSION ..................................................... 41
11
TABLE OF AUTHORITIES
United States Supreme Court Cases
Bronston v. United States, 409 U.S. 352 S.Ct. 595 (1973) ... 9-11,22,30,31,33,34
United States v. Gaudin, 515 U.S. 506 S.Ct. 2310 (1995) .................... 19
Weiler v. United States, 323 U.S. 606 S.Ct. 548 (1944)t ..................... 12
Colorado Cases
Banks v. People, 696 P.2d 293 (Colo. 1985) .............................. 18
People v. Aarness, 150 P.3d 1271 (Colo. 2006) ............................. 8
People v. Anderson, 717 P.2d 978 (Colo. App. 1985) ..................... 9, 14
People v. Buckallew, 848 P.2d 904 (Colo. 1993) ........................... 21
People v. Collins, 32 P.3d 636 (Colo.App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
People v. Dunkin, 888 P.2d 305 (Colo. App. 1994) ......................... 19
People v. Ellsworth, 15 P.3d 1111 (Colo.App. 2000) ....................... 11
People v. Fueston, 749 P.2d 952 (Colo. 1988) ....................... 12, 14, 15
People v. Kerst, 181 P.3d 1167 (Colo. 2008) .............................. 19
People v. Lindsey, 204 P.2d 878(Colo. 1949) ........................... 9, 14
People v. Lowe, 660 P.2d 1261 (Colo. 1983) ............................... 8
People v. Luke 948 P.2d 87 (Colo.App. 1997) ............................. 10
People v. Tucker, 631 P.2d 162 (Colo. 1981) .............................. 22
iii
People v. Vance, 933 P.2d 576 (Colo. 1997) .............................. 19
People v. Warner, 251 P.3d 556 (Colo. App. 2010) ...................... 19,20
People v. Westendorf, 542 P2d 1300 (Colo.App. 1975) ...................... 21
Treece v. People, 40 P.2d 233 (Colo. 1934) ............................... 22
Federal Cases
United States v. Chestman, 903 F.2d 75 (2d Cir. 1990) ...................... 16
United States v. Garcia-Zambrano, 530 F.3d 1249 (lOth Cir. 2008) ........... 19
United States v. Gatewood, 173 F3.d 983 (6
th
Cir. 1999) .................. 10,34
United States v. Good, 326 F.3d 589 (4th Cir. 2003) ......................... 34
United States v. Miller, 527 F.3d 54 (3d. Cir. 2008) ..................... 19,36
United States v. Tonelli, 577 F.2d 194 (3d. Cir. 1978) .............. 22, 22, 38,40
United States v. Vesaas, 586 F.2d 101 (8
th
Cir. 1978) ....................... 22
Cases
Cohen v. State, 985 So.2d 1207 (Fla.App. 2008) ..................... 10,27,34
Goble v. State, 766 N.E.2d 1 (lnd.App. 2002) ............................. 27
People v. White, 322 N.E.2d 1 (Ill. 1974) ................................. 34
State v. Abrams, 178 P.3d 1021 (Wash. 2008) ............................. 19
State v. Hutchins, 878 A.2d 241 (Vt. 2005) ............................... 16
State v. Jacobozzi, 451 N.E.2d 749 (Ohio 1983) ........................... 40
IV
State v. Olson, 594 P.2d 1337 (Wash. 1979) ............................... 9
State v. Ouimette, 415 A.2d 1052 (R.I. 1980) ........................... 39,40
Vandivier v. State, 822 N.E.2d 1047 (Ind.App. 2005) ....................... 20
Statutes and Rules
Crim.P.6(b) ...................................................... 9, 11
v
STATEMENT OF ISSUES PRESENTED FOR REVIEW
Issues Concerning Count One: In an arrest warrant affidavit, Lt. Broderick stated
Detective Wheeler observed on a bridge abutment orange spray-painted figures with
genitals that were "very sexual in nature." Count One alleges Broderick committed
perjury because he knew the drawings were not orange. The trial court dismissed Count
One because it was not supported by the sworn testimony of two witnesses and for lack
of probable cause.
The issues concerning Count One are whether the trial court (a) abused its
discretion when it found probable cause lacking and (b) erred when it concluded that the
cryptic note "orange paint?" failed to satisfy the strict requirements of the two witness
rule.
Issues Concerning Count Seven: During the Masters's murder trial, Lt.
Broderick was cross-examined about "Thorn McAn shoe prints." In response he stated,
"specifically, it's this one right here, number 1. That's the only identifiable print that
matched the Thorn McAn shoe." Count Seven alleges this testimony was false because
other police officers reported multiple prints similar to the shoe print showing the partial
McAn logo. The trial court dismissed Count Seven because the evidence established
Broderick's answer was true and for lack of probable cause.
1 ~ - - - - - - - - -- - ---------------------------
The issues concerning Count Seven are whether: (a) the indictment stated and the
record established a cognizable claim of perjury; (b) the record supports the trial court's
finding that Broderick's answer was truthful; and (c) the trial court abused its discretion
when it found probable cause lacking.
Issues Concerning Count Eight: During the Masters's trial, the parties stipulated
that Lt. Broderick would be permitted to testify without objection to hearsay about what
the police department's investigation may have revealed about Peggy Hettrick's
whereabouts before she was killed. Broderick testified that Hettrick was sighted by
Leslie Wills on Landings Drive around midnight. Count Eight alleges Broderick
committed perjury because "Leslie Wills never asserted nor confirmed that the person
she saw on Landing's Drive was Peggy Hettrick." The trial court dismissed Count Eight
for lack of probable cause.
The issues on appeal are whether: (a) the trial court abused its discretion when it
found probable cause lacking and (b) the indictment states and the record establishes a
cognizable claim of perjury.
2
STATEMENT OF THE CASE
Course of Proceedings
In March 1998, Timothy Masters was convicted for the February 11, 1987 murder
of Peggy Hettrick. The conviction was affirmed, and on May 5, 2003, Masters filed a
motion for post-conviction relief. Thereafter, David Wymore and Maria Liu were
appointed to represent Masters.
In January 2008, Special Prosecutor Don Quick filed a motion to vacate Masters's
conviction based on new advances in DNA testing and results revealing partial DNA
profiles on Hettrick's clothing that did not match Masters. The motion was granted and
the case against Masters was later dismissed. During post-conviction proceedings,
Masters's attorneys filed two motions for the appointment of a special prosecutor based
,
upon their claims of criminal conduct by the Fort Collins Police Department and perjury
by Lt. Broderick.
On January 4, 2008, Nineteenth Judicial District Attorney Ken Buck was
appointed special prosecutor. Buck investigated three allegations of wrongdoing: (a)
whether FCPD officers eavesdropped on a conversation between Masters and his father;
(b) whether Broderick testified falsely when asked how much additional involvement he
had in the Hettrick homicide investigation after 1982 (this corresponds to Count 9); and
3
(c) whether Broderick testified falsely when he stated only one identifiable print matched
the McAn shoe (this corresponds to Count 7). (Mtn. to Dismiss Count 7, Attach. A, Trial
Record, p. 177}.1
On July 8, 2008, DA Buck issued a report stating Broderick, FCPD officers, and
the prosecutors in the Masters case committed no crimes. As to the McAn shoe print,
DA Buck stated:
The answer that Lt. Broderick offered at trial, that one
print was the only identifiable print that matched the
Thorn McAn shoe, is also consistent with an objective
review of the physical evidence. That print, to which Lt.
Broderick referred, even to the untrained naked eye,
clearly bears the oval trademark stamp of a Thorn McAn
shoe. None of the other cast impressions taken from the
field during this investigation, nor any of the photographs
taken, bears this same oval trademark. To a non-expert
eye then, none of the other prints are [sic] clearly
"identifiable" as a Thorn McAn shoe.
(Mtn. to Dismiss Count 7, Attach. A at p.1l, Trial Court Record, p. 187). Buck noted
that even Masters's post-conviction shoe print expert stopped short of stating the other
prints could be "identified" as a McAn shoe. Id.
In October 2009, DA Buck renewed his investigation against Broderick, ostensibly
1 Lt. Broderick follows the citation conventions used by the prosecution. The grand jury
transcripts were introduced on July 13, 2011.
4
on grounds of newly discovered evidence. On June 30, 2010, Broderick was indicted
on seven counts of perjury, one of which Judge James Hartmann dismissed before
arraignment. In April 2011, Broderick moved to dismiss the indictment for lack of
subject matter jurisdiction because the indictment was legally insufficient and the
charges were time barred. Because the second issue required an evidentiary hearing,
Judge Hartmann agreed to address the legal sufficiency of the indictment first, and in
May 2011 he dismissed the indictment.
On July 27,2011, the prosecution obtained a second perjury indictment, this time
containing nine counts. On December 19,2011, the trial court granted Broderick's
motions to dismiss Counts One, Seven, and Eight. This appeal followed.
Statement of Facts
On February 11, 1987, while walking in a field near his home, Timothy Masters
saw a bloody drag trail and the partially clad body of Peggy Hettrick. Hettrick had been
fatally stabbed in the back with a large knife. (Ex. 48 at 2, Exhibitsfalders, p.154). Her
pubic hairs, vagina, and breasts were exposed and one of her nipples had been removed.
Masters then went to school. (Ex. 48 at 1, Exhibitsfalders, p.153). He did not report to
police what he saw and later claimed he thought the body was a Resusi-Annie doll. (For
5
a detailed recitation of the evidence giving rise to the arrest of Masters see the August
6, 1998 arrest warrant affidavit. (Exhibit 48, Exhibits folders, p. 153-185).
That same day, investigators recovered hundreds of pages of graphic sexual and
violent drawings from Masters's bedroom. Investigators also saw sexual drawings near
the murder scene, to include on bridge abutments and in a Quonset hut. Before the 1998
arrest warrant was obtained, DA Jolene Blair sent a copy of the affidavit to Wheeler.
(2010 Grand Jury Tr. 123:13 to 125:3; p. 126:14 to p.127:13, June 4,2010, Ex. 68B).
Wheeler told the grand jury that she made changes to the affidavit and gave the affidavit
to her husband to give to Lt. Broderick. Id. But Wheeler did not speak to Broderick
about the affidavit, and her objection to the inclusion ofthe drawings in the affidavit was
her belief that the bridge abutment drawings were not associated with those of Masters.
Id. at 127:7-13.
Investigators also took photographs and cast impressions of shoe prints in the field
and bloody drag trail made by Masters's Athletix shoes. Investigators also took photos
and casts of shoe prints containing a series of horizontal lines. The only shoe print
investigators could match to a particular brand of shoe was the print with the partial
Thorn McAn logo, and even that took a month. (2010 Grand Jury Tr. 96:11-15; 103:9-
25; 114:20-23, May 21, 2010, Ex. 67B). The other casts were so poor that the FBI's
6
shoe impression expert couldn't even say whether they were created by a shoe, much less
a particular brand of shoe. (Id. at 152:18 to 153:12). When Lt. Broderick was asked
during the Masters's murder trial about the "Thorn McAn print," he pointed to a
particular print and stated, "specifically, it's this one right here, number 1. That's the
only identifiable print that matched the Thorn McAn shoe."
Finally, as part of the investigation, investigators attempted to determine
Hettrick's whereabouts before her murder. Leslie Wills alerted police that she had seen
a woman at around midnight on Landings Drive whose appearance matched the general
description of Hettrick. Detective Wheeler showed Wills a photograph of Hettrick.
Wills said that the hair style and length were exactly like the woman she had seen, and
although she couldn't describe the woman's face, it looked very similar in features. (Mtn.
to Dismiss Count 8, Attach. F, Trial Court Record, p.231-32). As reflected in FCPD
investigative reports, investigators concluded that the person Wills saw was Hettrick.
(Mtn. to Dismiss Count 8, Attach C and D, Trial Court Record, pp. 226-27).
Leslie Wills testified at the Masters murder trial. She described the person she
woman she saw on Landings Drive. Lt. Broderick was the government's advisory
witness and was in the courtroom when she and the other witnesses testified. (2010
Grand Jury Tr. 36:13-23; 39:8-11, June 4,2010, Ex. 68A).
7
Lt. Broderick testified just after Leslie Wills. (2010 Grand Jury Tr. 138: 7-9, June
18,2010, Ex. 69). The prosecution and defense stipulated that Lt. Broderick could
testify "as to the chronology of events to the best we could determine of Peggy Hettrick's
whereabouts prior to her homicide." (Id. at 169:4-6). Lt. Broderick testified about the
investigation into Hettrick's whereabouts and stated that Hettrick was sighted by Leslie
Wills around midnight on Landings Drive. Wills's sighting of Hettrick was consistent
with the general time frame that Hettrick's neighbor, Dean Main, had seen Hettrick at
her nearby apartment. (Ex. 65, Exhibits folder, p. 240).
Standard of Review
The Court reviews the trial court's probable cause determination under an abuse
of discretion standard. People v. Collins, 32 PJd 636, 640 (Colo.App. 2001). The trial
court's conclusions oflaw are reviewed de novo. Id. The trial court's judgment may be
affirmed "on any ground supported by the record, whether relied upon or even
considered by the trial court." Peoplev. Aarness, 150 P.3d 1271, 1277 (Colo. 2006). Mr.
Broderick agrees with the People's statements regarding the standard of review as is
consistent with what is outlined here.
8
SUMMARY OF ARGUMENT
While all criminal statutes are strictly construed in favor of the accused, People
v. Lowe, 660 P.2d 1261, 1268 (Colo. 1983), this is particularly true with perjury statutes.
Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595 (1973). The requirements of proof
in a perjury case are amongst the strictest known to the law. State v. Olson, 594 P.2d
1337 (Wash. 1979).
For example, Colorado's "two witness rule" requires a perjury indictment to be
supported by the sworn testimony of at least two witnesses. Crim.P. 6(b). When a
second witness is unavailable, Colorado law permits a perjury prosecution only if the
corroborative evidence is so direct and positive as to be equal to the testimony of another
direct witness. The corroborative evidence must be, by itself, inconsistent with the
innocence of the accused and must contradict the challenged statement in definite and
positive terms.
In addition, common law principles limit the circumstances under which a perjury
charge may lie. As the unanimous Supreme Court noted in Bronston, the common law
"throws every fence round a person accused of perjury ... (internal quotations and
citations omitted)." 409 U.S. at 359-60, 93 S.Ct. at 600. Perjury statutes, noted the
9
Supreme Court, must be read "in light of our own and the traditional Anglo-American
judgment that a prosecution for perjury is not the sole, or even the primary, safeguard
against errant testimony." Id.
A charge of perjury must be based upon a false statement. Perjury may not be
premised upon a truthful answer even when made with an intent to mislead. Bronston,
409 U.S. at 359-360, 93 S.Ct. 600. Nor does the failure to volunteer more explicit
information constitute perjury, even where a truthful answer may create a misleading
impression.Id.
Equally important, "precise questioning is imperative as a predicate for the offense
of perjury." Bronston, 409 U.S. at 362, 93 S.Ct. 602. Questions posed to elicit perjured
testimony must be asked with appropriate specificity necessary to result in an equally
specific statement of fact. Id. A charge of perjury may not be premised upon a false
dichotomy. United States v. Gatewood, 173 F.3d 983 (6
th
Cir 1999). Rather, perjury
must be premised upon an irreconcilable contradiction.
Finally, a charge of perjury may not be premised upon an opinion, conjecture,
inference, or deduction from given facts. Cohen v. State, 985 So.2d 1207, 1209 (Fla.App.
2008). Nor maya charge of perjury be premised upon a particular interpretation the
questioner places upon an answer or upon an answer to an ambiguous question. People
10
v. Luke 948 P.2d 87, 92 (Colo.App. 1997).
The trial court properly dismissed Count One because it was supported by the
sworn testimony of only one witness or probable cause. The cryptic note does not satisfy
the "strict requirements" of the two witness rule, nor did the trial court abuse its
discretion when it found probable cause lacking. And although the trial court did not
reach the materiality issue, Count One was also properly dismissed on that basis as well.
The trial court also properly dismissed Count Seven. Count Seven is premised
upon a false dichotomy and the record supports the trial court's finding that Broderick's
testimony was truthful. Further, Count Seven is premised upon the "truthful but
misleading" theory of perjury condemned in Bronston. Finally, the trial court did not
abuse its discretion when it found probable cause lacking.
The trial court properly dismissed Count Eight for lack of probable cause. Count
Eight is also premised upon a false dichotomy and dismissal was proper on that ground
as well.
ARGUMENT
I. The Trial Court Correctly Dismissed Count One Because it Was
Not Supported by the Sworn Testimony of Two Witnesses or
Probable Cause.
11
A. The Cryptic Note Fails to Satisfy the Strict
Requirements of the Two Witness Rule.
Perjury indictments must be supported by the sworn testimony of at least two
witnesses to the same fact. Crim.P. 6(b). Whether an indictment is supported by the
sworn testimony oftwo witnesses is a question oflaw for the court. People v. Ellsworth,
15 P.3d 1111, 1116 (Colo.App. 2000).
The two witness rule derives from common law and recognizes that it is unsafe to
convict a person of perjury solely on the basis of an oath against an oath. People v.
Fueston, 749 P.2d 952,956 (Colo. 1988). Lawsuits frequently engender resentments and
hostilities against adverse witnesses, and the two witness rule protects witnesses from
hasty and spiteful retaliation in the form of unfounded perjury prosecutions. Weiler v.
United States, 323 U.S. 606, 609, 65 S.Ct. 548, 550 (1944). Further, the two witness rule
recognizes that witnesses may have genuinely differing recollections of the same event,
and conflicting testimony about those recollections is insufficient to demonstrate perjury.
Weiler, 323 U.S. at 608, 65 S.Ct. at 549.
One circumstance where the two witness rule does not apply is where "the
prosecution's evidence stems solely from documents originating from the defendant
himself." People v. Fueston, 749 P.2d 952, 957 (1988). The prosecution concedes that
12
the documentary evidence doctrine does not apply here. Opening Brief at 19 and 21.
The prosecution acknowledges that the sole fact witness whose testimony jury
supports Count One is Linda Wheeler. She testified as follows:
a. in 1987 she saw very sexual spray painted drawings on a bridge
abutment near the Hettrick homicide scene; (2010 Grand Jury Tr.
125:14 to 126:7, June 4,2010, Ex. 68B).
b. she failed to note in her report the color of those drawings,
speculating that "if it would have been another color [other than
black] I probably would have noted it." Id;
c. she does not recall telling Lt. Broderick the drawings were orange;
(Id at 128:16-19);
d. in 1998 she made hand-written changes to a draft of the 1988
affidavit she had received from prosecutors Terry Gilmore and
Jolene Blair and gave the annotated draft to her husband to deliver
to Broderick. (Id. at123: 13 to 125:3; 126: 14 to 127: 13);
e. shortly before trial (in 1999), Wheeler saw the affidavit and the
reference to the drawings; (Id at 129:5-24); and
f. Wheeler was angry and confronted Blair shortly before trial about
the failure to remove the reference to the drawings. Id.
The only other fact witness who testified about the bridge abutment drawings was
Jolene Blair. Blair's testimony, however, refutes Wheeler's claims that she confronted
Blair about the contents of the affidavit or the color of the drawings. (2010 Grand Jury
Tr. 158:21 to 160:3, June 18, 2010, Ex. 69).
13
Nevertheless, the prosecution maintains that Count One survives dismissal under
an exception to the two witness rule. The exception provides that a perjury charge may
survive dismissal when supported by the testimony of one witness "and by other
independent and corroborating circumstances which is deemed of equal weight of the
testimony of another witness." People v. Anderson 187 P.2d 934,935 (Colo. 1947). In
such cases, the "strict requirement" of the exception "requires that the proposed
corroborative circumstance must be of such direct and positive strength as to be
tantamount to the testimony of another direct witness." People v. Lindsey, 204 P.2d 878,
880 (Colo. 1949). The corroboration "must contradict in definite and positive terms the
statement of the accused." (emphasis added)." People v. Anderson, 187 P.2d at 935.
It must also be, by itself, inconsistent with the innocence of the defendant. People v.
Fueston, 717 P.2d 978, 980 (Colo. App. 1985).
The prosecution argues Grand Jury Exhibit 61-a page of Broderick's
handwritten notes dated July 6-July 8, 1998, labeled "Wheeler" and consisting of more
than twenty lines of handwritten notes and questions, one of which reads, "orange
paint?"- satisfies the requirements of the exception to the two witness rule. (Ex.6J,
Exhibits folder, p.234).
Ironically, the prosecution relies on People v. Fueston, 749 P.2d 952 (Colo. 1988)
14
and the documentary evidence doctrine in support of its claim. Although the prosecution
concedes the doctrine does not apply, it nonetheless argues the rationale underlying that
doctrine carries the day since Broderick is the source of the note.
The prosecution offers no authority to support this mix and match approach to the
two witness rule. More importantly, the prosecution completely ignores the substantial
differences between Lt. Broderick's handwritten note and the signed and verified public
records and corporate documents in Fueston.
In Fueston, defendant was charged with perjury for falsely testifying before the
Colorado Springs Liquor Authority that he was unaware any stock in a Washington
liquor licensee (the Howven company) had been issued to him. To prove perjury the
prosecution relied upon two documents. The first was a statement signed and sworn to
under penalty of perjury by Fueston as secretary of Howven, Inc., filed with the
Washington Liquor Control Board, and declaring that Fueston owned 412 shares of
Howven stock. The second statement was an official corporate record filed with the
Washington Liquor Control Board, signed by Fueston as secretary ofHowven, Inc., and
containing a resolution that the company's secretary-treasurer was to issue Fueston 25%
percent of Howven' s stock.
Unlike the documents in Fueston, the note here contains no assertions or
15
representations of fact. Lt. Broderick's note is not a corporate record. It was not filed
as a public document, nor was it signed and verified. And the note is not a document
to be filed in compliance with legal reporting obligations with a regulatory agency.
The trial court correctly described the note as "cryptic". At most, Exhibit 61
establishes that in early July-a month before the affidavit was obtained and during the
ongoing investigation-Lt. Broderick made note of a question he had at that time about
the drawings. The note does not contradict Broderick's statement in definite and
positive terms, nor is it in such direct and positive terms as to be tantamount to the
testimony of another direct witness. The note is also not, by itself, inconsistent with
Broderick's innocence. While Wheeler claims in 2010 that she does "not recall at all"
telling Broderick in 1998 that the drawings were orange, his note is entirely consistent
with him reviewing Wheeler's report, asking Wheeler about the color of the drawing,
and being told the drawings were orange.
For each of these reasons, the trial court correctly dismissed Count One. Case
law involving analogous circumstances amply supports the trial court's order. See, e.g.,
United States v. Chestman, 903 F.2d 75, 81-82 (2d Cir. 1990)(written telephone
messages and blotter notes "wholly insufficient" to support perjury conviction; evidence
lacked sufficient independent probative value and was not, in itself, inconsistent with
16
Chestman's innocence.); People v. Cash, 200 N.W.2d 83, 87 (Mich. 1972)(traffic log
book was ambivalent and lacked force and character necessary to satisfy two witness
rule); and State v. Hutchins, 878 A.2d 241,244 (Vt. 2005)(transcript of hearing and
other evidence insufficient corroboration and not inconsistent with innocence).
B. The Trial Court Did Not Abuse Its Discretion
When it Dismissed Count One for Lack of
Probable Cause.
The trial court did not abuse its discretion when it dismissed Count One for lack
of probable cause. A further response would be unnecessary but for the prosecution's
incorrect characterization of the grand jury record. Specifically, the prosecution
contends that Wheeler "instructed the Defendant" to remove the reference to the orange
spray painted drawings and that Wheeler's testimony "clearly demonstrates that the
Defendant did not believe that the drawings were orange." Opening Brief at pp.8 and
25.
To the contrary, Wheeler testified that she obtained a copy of the affidavit from
Blair and Gilmore and she gave the affidavit with her notes to her husband to give to
Broderick. (2010 Grand Jury Tr. 124:3-10, June 4,2010, Ex. 68B). She never testified
that she spoke to Broderick about her suggested changes (nor did she). More
17
importantly, the basis of Wheeler's objection was not the color of the drawing, but
rather that the affidavit connected the bridge abutment drawings with Masters's
drawings and Wheeler did not believe they were similar. Wheeler testified: "And that's
why I objected. I said, you need to take that out of there, because I'm the only one that
saw those drawings, and in my opinion they're not anything-they're not similar, and
there's no way of connecting those between [sic] Tim Masters." (2010 Grand Jury Tr.
127:7-13, June 4, 2010, Ex. 68B). Of note, the affidavit makes no claim that the
drawings are similar. (Exhibit 48, Exhibits folder, p.3).
C. Dismissal of Count One Was Proper on the
Additional Ground That the Challenged
Statement, as a Matter of Law, Was Not
Material.
Although the trial court never reached the materiality argument, dismissal of
Count One is supported on that basis as well. The sole function of an arrest warrant
affidavit is to establish probable cause. Probable cause exists when the facts and
circumstances are sufficient to warrant a person of reasonable caution to believe that the
person about to be arrested has committed a criminal offense. Banks v. People, 696 P .2d
293, 296 (Colo. 1985).
The challenged statement, found in a 29 page affidavit not including attachments,
18
--------- ---------------------------
is immaterial as a matter of law because the affidavit establishes probable cause,
regardless of the color of the drawings. (Exhibit 48, Exhibits/older, pp. 153-185).
Challenges to the veracity of statements in an affidavits are not uncommon in
criminal cases. In such cases, the court first determines if an inaccuracy in the affidavit
is the result of an intentional falsehood or reckless disregard of the truth. People v.
Warner, 251 P.3d 556, 560 (Colo. App. 20 I 0). If so, the trial court strikes the false
statement and determines if the remaining statements in the affidavit nevertheless
establish probable cause. People v. Dunkin, 888 P.2d 305,310 (Colo. App. 1994).
When an appellate court reviews the trial court's probable cause determination it applies
a de novo standard of review. United States v. Garcia-Zambrano, 530 FJd 1249, 1258
(10th Cir. 2008); People v. Kerst, 181 P Jd 1167, 1173 (Colo. 2008).
Where materiality is an element of perjury, as it is in Colorado, it must be proven
to a jury beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 522-523,
115 S.Ct. 2310, 2319 (1995); People v. Vance, 933 P.2d 576,579 (Colo. 1997). But
materiality is a mixed question of fact and law, and such questions are assigned to the
court for one purpose and the jury for another. Gaudin, 515 U.S. at 521, 113. S.Ct. at
2319 (1995). Thus, even though the prosecution must prove materiality beyond a
reasonable doubt, the court nevertheless determines whether a challenged statement is
19
legally sufficient to establish perjury in the first instance. See State v. Abrams, 178 P.3d
1021 (Wash. 2008)(procedure of trial court making preliminary determination of
materiality is consistent with Gaudin); United States v. Miller, 527 F.3d 54 (3d. Cir.
2008)(applying de novo standard of review and finding alleged false statement to be
immaterial); Vandivier v. State, 822 N.E.2d 1047, (lnd.App. 2005).
Whether the challenged statement is material must be viewed solely in the context
of the affidavit in which the challenged statement is found. People v. Warner, 251 P.3d
556, 562 (Colo. App. 201 O)(reviewing court considers only information within four
corners of the affidavit).
Here, the affidavit contains no statement from anyone attributing the spray-
painted drawings to Masters. The affidavit does not claim Masters owned or had access
to orange paint or that orange paint was found in his home. None of his Masters's six
large survival knives or six empty knife boxes room had orange spray paint on them.
Although a knife with orange paint overspray was found six months after the murder in
a ditch downstream from the murder scene, no evidence established that it was the
murder weapon. To the contrary, as stated in the affidavit, that knife had a broken tip,
but when Peggy Hettrick's body was exhumed and x-rayed, no metal fragments were
found. (Ex. 48 at 9, Exhibits folder, p.59). The knife did not match Masters's knife
20
sheaths, supporting an inference that the knife and nothing to do with either Masters or
Hettrick.
Whether the challenged statement is material (Le., could have changed the
probable cause finding) is easily tested. The court can simply strike the challenged
statement, i.e., "orange paint" and determine if the affidavit nevertheless establishes
probable cause. Alternatively, the trial court can accept Wheeler's current speculation
that the drawings were black and substitute the phrase "black in color" for ~ ~ o r a n g e in
color." In either instance, the affidavit establishes probable cause and thus, as a matter
of law, the challenged statement, is not material.
II. The Trial Court's Order Dismissing Count Seven Must Be
Affirmed. Count Seven is Legally Insufficient, Broderick's
Testimony was Truthful, and Count Seven Is Not Supported by
Probable Cause.
A. Count Seven is Premised Upon a False Dichotomy;
the Challenged Statement and Allegation of Falsity
Are Not Irreconcilable.
1. A Perjury Indictment Must Be Predicated on a False Statement not a False
Dichotomy. Where a statute defines an offense in general terms, such as perjury, the
indictment must allege the acts and conduct which are deemed to have violated the
21
statute. People v. Buckallew, 848 P.2d 904, 910 (Colo. 1993). A perjury indictment
must not only identify the alleged false statement, People v. Westendorf, 542 P .2d 1300,
1301 (Colo.App. 1975), it must also contain an "averment offact demonstrating the
falsity of the statement or testimony on which the charge is based (emphasis added)."
People v. Broncucia, 540 P.2d 1101,1103 (Colo. 1975). "To accomplish these purposes
the indictment must clearly state the essential facts which constitute the offense.
Fundamental fairness requires no less." People v. Tucker, 631 P.2d 162, 163 (Colo.
1981). "Facts, not conclusions, must be averred." Treece v. People, 40 P.2d 233,235
(Colo. 1934).
An indictment premised on a false dichotomy is legally insufficient and cannot
stand. United States v. Gatewood, 173 F3.d 983, 987 (6
th
Cir. 1999); United States v.
Vesaas, 586 F.2d 101 (8
th
Cir. 1978). An indictment for perjury "must set out the
allegedly perjurious statements and the objective truth in stark contrast so that the falsity
is clear to all who read the charge." United States v. Tonelli, 577 F .2d 194, 195 (3d. Cir.
1978).
2. Count Seven is Premised Upon a False Dichotomy. Here, Count Seven alleges
Lt. Broderick knowingly made a false statement on or between March 19 and March 27,
1999, when he testified at trial as follows:
21
Q: (By Mr. Fischer) ... But the Thorn McAn shoe prints,
according to your investigation, were found right there along
the curb line where the blood pool is; isn't that correct?
A: Specifically, it's this one right here, number 1. That's the only
identifiable print that matched the Thorn McAn shoe.
Notably, Count Seven does not allege that multiple identifiable prints matched
the McAn shoe. Instead, the specification of falsity alleges that "officers of the Fort
Collins Police Department had reported multiple shoe prints that appeared similar to the
shoe print showing a partial Thorn McAn logo, which shoe prints were discovered along
and within the bloody drag trail and between the location of Peggy Hettrick's body and
the curb, and near the curb where a large pool of blood was found." (Indict. at ~ 17, Trial
Court Record p.16).
Put simply, Count Seven is premised upon a false dichotomy. There is nothing
irreconcilable about Broderick's determination that only one identifiable print matched
the Thorn McAn shoe on the one hand and officers reporting shoe prints similar to the
print showing the partial Thorn McAn logo on the other. Both statements can be (and
are) true. As a result, Count Seven is legally insufficient and must be dismissed. United
States v. Gatewood, 173 F3.d 983 (6
th
Cir. 1999)(dismissing indictment premised on
false dichotomy, i.e., certifying that one has made payments to subcontractors is not
22
inconsistent with having yet to pay the subcontractors in full); United States v. Tonelli,
577 F.32d 194, 195 (3d. Cir. 1978)(finding insufficient charge of perjury because
handling transmission of checks not the same as handling the checks themselves).
B. The Grand Jury Record Demonstrates that Lt.
Broderick's Testimony was Truthful.
The grand jury record amply supports the trial court's finding that Lt. Broderick's
testimony was truthful. First, lead prosecutor Terry Gilmore testified that "there were
certainly a number of shoe prints, one of which you could discern a Thorn McAn
imprint, and it had horizontal lines on the bottom of the shoe; and there were other
partial prints that had the same horizontal lines, but not - I don't think there was ever
any other one that had a Thorn McAn logo on it, if that's the correct word for it." (2010
Grand Jury Tr., 43:4-10, June 4,2010, Ex. 68B).
Gilmore met with the investigators who took photos ofthe shoe print impressions
and made the casts. (Id. at 43:22 to 44:3). He spent "a lot of time" on the photographs,
including the FBI's high resolution photos, and tried to match them to the crime scene
diagram. (Id. at 43: 21 to 44:3; 44: 14-21). Gilmore testified that in the end they did not
know what the shoe print evidence showed and for the time ever he simply submitted
the shoe print evidence and told the jury to decide what was important. (Id. at 42:22-25).
23
Second, Jolene Blair's grand jury testimony supports the trial court's finding:
Q: (by DA Rourke) ... correct me if I'm wrong, there
were other shoe prints that mayor may not have
belonged to a Thorn MeAn. But suffice it to say at this
point no Thorn McAn shoes were ever sent by the Fort
Collins Police Department to the FBI for any kind of
comparison. It was simply Mr. Masters' shoes sent,
and then there was some discussion about maybe these
other ones were Thorn MeAns. Is that consistent with
your memory of the evidence? (emphasis added).
A: Yes.
(2010 Grand Jury Tr., June 18,2010,166:19 to 167:4, Ex. 69).
Blair also testified that the shoe print evidence was not collected in a way that
was easily understood. (Id. at 161 :20-23). The evidence was a mess and Blair didn't
know what to make of it. Id. She looked at the casts, shoe print photos, evidence logs,
and the incident reports from the officers who collected the evidence. (Jd. at 162:22 to
163:8). The prosecution's trial team took a whole day examining the shoe print
evidence in a conference room trying to recreate how the shoe prints appeared in the
field. (Jd. at 163: 17-23). Blair enlisted the help of Officer Swihart, who photographed
the shoe prints. (Jd. at 169: 17 to 170:5). Blair even invited Masters's defense attorneys
to the conference room to look at and help figure out the shoe print evidence. (Id. at
167:13-19; 171:6-15).
24
Third, the testimony of Sergeant Gonzales confirms that he, too, determined only
one identifiable print matched the Thorn McAn shoes. Gonzales told the grand jury that
the shoe print Lt. Broderick testified about was only "somewhat identifiable" when
Gonzales saw it. (2010 Grand Jury Tr. 96:11-15, May 21,2010, Ex. 67B). Gonzalez
could not make out the logo or even the letters in the shoe print impression. (Id. at
98:4-12). Only after a photograph ofthe image was blown up and a reverse image of the
impression had been created could Gonzales "discern details that weren't readily
apparent." (Id. at 102:11 to 103:5). On March 13, 1987, a month after the homicide,
Gonzales still did not know what brand of shoe was associated with the print, so he went
to shoe stores searching for a shoe type that, in DA Rourke's words, "may have been
consistent with that impression." (Id. at 103:9-25). Sergeant Gonzales was not allowed
to take the McAn shoes so he took photos of the exemplar shoes. When DA Rourke
asked Sergeant Gonzales about his trial testimony concerning the "Thorn McAn shoe
prints" [sic], Gonzales corrected him and stated "the shoe print." (Id. at 114:20-23).
Fourth, even Masters's attorney, Eric Fischer, agreed only one print had a Thorn
McAn logo, and acknowledged that the FBI photos did not show another McAn logo.
(2010 Grand Jury Tr. 204:11-15, June 18,2010, Ex. 69).
Finally, the FBI never reached any conclusions about castings QI01 and QI03
25
through 107 (See Ex. 17 through 24, Exhibits folder, pp.26-33). In fact, the FBI
concluded that the "cast impressions are too limited for a meaningful shoe comparison."
(Ex. 16, Exhibits folder, p . 2 2 ) ~
In response to this overwhelming evidence, the prosecution advances several
arguments why the trial court's finding that Lt. Broderick's answer was truthful is
wrong. The prosecution first argues that the FBI's high resolution photographs of casts
Q 101 (the identifiable print that matched the McAn shoe) and Q 1 03 through 107 (casts
of other prints that mayor may not correspond to a Thorn McAn shoe) reveal in "much
more detail" than the crime scene photos the presence of multiple shoe prints containing
striations that are "identifiable to and matched the sole of the Thorn McAn shoes." See
Opening Brief at 33. The prosecution argument is unavailing for three reasons.
First, Lt. Broderick invites the Court to examine Exhibits 11 and 18 through 24
(Exhibits folder, p.12; pp. 27-33). None of the photos of casts QI03 through 107 are
identifiable matches to the exemplar Thorn McAn shoes. (Nor do Exhibits 18 through
24 reveal more pattern characteristics than the photographs of the prints with striations
that Masters's defense attorneys introduced into evidence at trial through Sergeant
Gonzales.)
FBI shoe print expert Michael Smith told the grand jury that in the FBI's two
26
databases "[ w]e have about 30,000 different out sole patterns. But in the casts
themselves [Q I 0 1 through Q 1 08, excluding Q 1 02] there was only a series of straight
lines. And to me, that's not a whole lot of detail. I don't even know if it was
created by a shoe print or not .... So just because I see a series of horizontal lines
I cannot jump to the conclusion that it is, in fact, a shoe print (emphasis added)."
(2010 Grand Jury Tr. 152:18 to 153:12, May 21,2010, Ex. 67B).
Second, the prosecution's self-serving statement that the striations shown in the
FBI photos are "identifiable to and matched the sole of the Thorn McAn shoes"
(Opening Brief at 33) consists of a conclusion or opinion, which cannot serve as the
basis for a perjury prosecution. Cohen v. State, 985 So.2d 1207, 1209 (Fla.App. 2008);
Goble v. State, 766 N.E.2d 1,9 (lnd.App. 2002).
Third, the prosecution's theory proves too much and leads to absurd results.
Under the protection's theory, any time a witness offers an opinion about the
identification of a person or object with which the prosecution disagrees, that person can
be charged with perjury. Here, for example, under the prosecution's theory, Gilmore
and Blair are guilty of perjury. After all, Gilmore and Blair saw the FBI's high
resolution photographs and extensively examined all the shoe print evidence. Under the
prosecution's theory, they aided and abetted Lt. Broderick's (alleged) perjury.
27
Similarly, under the prosecution's theory, Sergeant Gonzales committed perjury during
the Masters's trial and before the grand jury. After all, Gonzales saw and helped
Wagner measure the actual shoe prints and personally inspected the McAn shoes. Yet
in both proceedings testified about only one Thorn McAn print.
Next, the prosecution relies on Grand Jury Exhibit 89, which it contends are
Broderick's notes from his "working file." (Ex. 89, Exhibitsfolder,pp. 288-291). The
grand jury record makes no reference to Exhibit 89 coming from a "working file."
(2011 Grand Jury Tr., July 27,2011, p. 151:15-25). Even ifit had, there is no evidence
concerning if, or when, the document was in the working file before trial, during trial,
during the appeal, or after the post-conviction proceedings began. Id. Nor does the
grand jury record support the prosecution's claims that the notes are Broderick's. In
fact, the notes were Detective Reed's. See Attachment A, Affidavit of Det. Reed. Lt.
Broderick provides Attachment A to respond not to the grand jury record, but to the
erroneous claim in the prosecution's Opening Brief.
Finally, the prosecution claims Sherri Wagner's testimony establishes the falsity
ofLt. Broderick's testimony. It does not. Wagner testified that she saw and measured
a line of prints in the field she believed were heading towards Hettrick's body. In fact,
the prints were heading away from her body. (2010 Grand Jury Tr. 48:8-17, May 21,
28
2010, Ex. 67B). She testified these prints were "all consistent" with a "pattern" which
consisted of "a striation of fairly regular lines across it with an oval-type center
trademark that we couldn't figure out at the time. "(ld. at 46:6-9). Ms. Wagner was
shown Exhibit 7 (showing the identifiable print that matched the McAn shoe) and she
then stated "and this would be the shoe with the linear striations in it that we took,
which would be the shoe print associated with those on the trail or to the north of the
trail." (Id. at 50: 13-16).
Although Ms. Wagner described the prints she saw as "consistent" with the
pattern shown in Exhibit 7, she never testified that any ofthe other referenced prints had
the "oval"with the identifiable McAn logo. In fact, upon inquiry of one of the Grand
Jurors: "When you say they were all the same, is that your knowledge based on the, you
know, experts, or is that just your impression that day?" Ms Wagner testified:" That's
my knowledge based upon looking at the striations that day." (ld. at 59:15-19). The
prosecution never provided to her, the grand jury, or any other grand jury witness, a
photograph or cast of another print that showed a Thorn McAn logo, nor could they as
it does not exist.
Wagner's testimony is not inconsistent with that ofthe other witnesses who verify
the truthfulness of Broderick's testimony, to include that of Sergeant Gonzales who
29
helped Wagner measure the prints, and who, as noted by the court, when asked "Were
you ever asked, either by the prosecution at trial or by the defense, about the work you
did on the Thorn McAn shoe prints?" corrected the prosecutor stating "On the- the shoe
print?" (Jd. at 114:20-23); and who would only say, when asked by DA Rourke ifhe
believed those prints "were, in some way, associated with" the identifiable print that
matched the McAn shoe, "I mean, the assumption most likely would be that they were
associated. (emphasis added)." (Jd. at 101:18-22). Nor does the testimony suggest that
Broderick's testimony was false. Broderick was never assigned the task of measuring
and examining the actual shoe prints in the field. And regardless of what conclusions
Wagner may have reached based upon her physical inspection of the impressions,
nothing in her testimony establishes that Broderick believed his testimony was false.
C. Count Seven Is Premised Upon a Theory of
Liability Condemned by Bronston v. United States.
Although the prosecution claims otherwise, the grand jury record, as well as the
language of the indictment, demonstrates that Count Seven is premised upon the theory
of liability expressly condemned in Bronston. Although the trial court found it
unnecessary to reach this issue, the dismissal of Count Seven should be affirmed on this
basis as well.
30
In Bronston, defendant was charged with perjury for providing the following
perjured testimony in a bankruptcy proceeding:
Q: Do you have any bank accounts in Swiss Banks, Mr. Bronston?
A: No Sir.
Q: Have you ever?
A: The company had an account there for about six months, in Zurich.
Q: Have you any nominees who have had bank accounts in Swiss banks?
A: No, sir.
Q: Have you ever?
A: No, sir.
Bronston, 409 U.S. at 354, 92 S.Ct. at 598. At the time, Bronston did not have any
Swiss Bank accounts, but he had maintained a personal bank account in Geneva,
Switzerland from 1959 through 1964. Based upon this testimony, Bronston was
charged with and convicted of perjury.
On appeal, the government conceded Bronston's testimony was literally true, but
argued his testimony was perjurious because it was misleading and made with an intent
to mislead, arguing that whether Bronston's testimony was made with an intent to
mislead was a jury issue. The government urged the Supreme Court to liberally
construe the perjury statute. The Supreme Court refused to do so and rejected each of
the government's arguments.
31
First, the Supreme Court strictly construed the perjury statute: "We perceive no
reason why Congress would intend the drastic sanction of a perjury prosecution to cure
a testimonial mishap that could readily have been reached with a single additional
question by counsel alert-as every examiner out go be-to the incongruity of petitioner's
unresponsive answer." 409 U.S. at 358, 93 S.Ct. at 600. "It is the responsibility of the
lawyer," noted the Supreme Court, "to probe; testimonial interrogation, and cross-
examination in particular, is a probing, prying, pressing form of inquiry. It is the
lawyer's responsibility to recognize the evasion and bring the witness back to the mark,
to flush out the whole truth with the tools of adversary examination. Id.
The Supreme Court pointed out that Bronston's answer to the first question was
true and conceded that Bronston's second answer was not responsive and in casual
conversation a reasonable implication would be that he never had a personal bank
account. But, said the Supreme Court, "we are not dealing with casual conversation and
the statute does not make it a criminal act for a witness to state any material matter that
implies any matter that he does not believe to be true." 409 U.S. at 357,93 S.Ct. at 599.
Literally true but unresponsive answers, noted the Supreme Court, even if shrewdly
calculated to evade, are to be remedied through the questioner's acuity and not by way
of perjury prosecution. 409 U.S. at 362, 93 S.Ct. 601-02. "To hold otherwise would be
32
- ---------------
to inject a new and confusing element into the adversary testimonial system we know.
Witnesses would be unsure of the extent of their responsibility for the
misunderstandings and inadequacies of examiners, and might well fear having that
responsibility tested by a jury under the vague rubric of 'intent to mislead' or 'perjury
by implication. '" 409 S.Ct. 359, 93 S.Ct. 600.
The grand jury record here reveals that Count Seven is predicated upon the
precise theory ofliability condemned in Bronston. The District Attorney's own Chief
Investigator, who testified after Wagner and Gonzales and Gilmore and Blair, told the
grand jury:
... And he [Lt. Broderick] diverts attention and goes to
plaster cast number one, which was, as you recall, was
that shoe print that actually had the partial Thorn McAn
logo on it. So his statement, althoui:h truthful, he's fully
aware of what's he's trying to do in that instance, and
that's divert attention away from the obvious.
2010 Grand Jury Tr. 127:12-18, June 18, 2010, Ex. 69. Investigator Olson's
testimony confirms the truthfulness of Broderick's testimony, but it also reveals the
prosecution's reliance on the precise theory of liability condemned in Bronston.
The prosecution has advanced a series of attacks on Bronston. First, the
prosecution argued to the trial court that Bronston only applies where the challenged
33
statement is made during cross-examination. The prosecution also argued before the
trial court and argues here that Bronston only applies to indisputably nonresponsive
statements. Even a casual review of the relevant case law cited in this brief
demonstrates that this claim is groundless. See People v. Luke, 948 P.2d 87, 92
(Colo.App. 1997)(followingBronston and affirming dismissal offalse statement charge
where statement made in written application); State v. Stump, 870 P.2d 333 (Wash.App.
1994)(responsive statement made in direct examination); United States v. Gatewood,
173 F3.d 983 (6
th
Cir. 1999)(responsive statement contained in sworn certification);
United States v. Good, 326 F.3d 589 (4th Cir. 2003)(responsive statement in FAA
application); People v. White, 322 N.E.2d 1, 3-4 (Ill. 1974)(responsive statement in
liquor license application); and Cohen v. State, 985 So.2d 1207 (Fla. App.
2008)(voluntary sworn statement).
The prosecution next argues that the principles discussed and applied in Bronston
are mere dicta. The plethora of case law cited by Lt. Broderick demonstrates that state
and federal courts across the county routinely apply the legal principles discussed in this
brief when called upon to assess the sufficiency of perjury charges.
Finally, the prosecution trumpets a far-fetched scenario under which it claims Mr.
Broderick's answer would not necessarily be "indisputably" literally true. The
34
prosecution argues that it is "plausible" that Lt. Broderick's said one identifiable print
matched the Thorn McAn based solely on the striations (i.e., the partial logo was
meaningless), According to the prosecution the FBI photos of the casts show striations
which "were in fact identifiable to and matched the sole of the Thorn McAn shoe," See
Opening Brief at 32-33. Thus, reasons the prosecution, if Broderick's identification
were premised solely on the striations, he committed perjury.
First of all, the prosecution's argument violates common sense. Businesses spend
billions of dollars on logos, trademarks, and trade dress, because that is what makes an
object identifiable.
Second, nothing in the grand jury record supports the claim that Broderick's
statement that only one identifiable print matched the McAn shoe was based only upon
the striations and that the partial McAn logo was irrelevant.
Third, the prosecution's claim that the striations are identifiable to and match the
McAn shoe is wrong. Even FBI Agent Smith, who specializes in footwear examination,
couldn't make the type ofleap the prosecution invites the court to take here. FBI Agent
Smith didn't have to settle for photos of the casts, he had the actual casts themselves,
which had "only a series of straight lines. And to me, that's not a whole lot of detail.
I don't even know if it was created by a shoe print or not. , .. So just because I see a
35
series of horizontal lines I cannot jump to the conclusion that it is, in fact, a shoe print."
2010 Grand Jury Tr. 152:18 to 153:12, May 21,2010, Ex. 67B.
D. The Trial Court Did Not Abuse Its Discretion In
Finding Probable Cause Was Lacking as to Count
Seven.
The grand jury record demonstrates that Count Seven was not supported by
probable cause. In light of the discussion above, additional comment on the grandjury
record is unnecessary. But an additional factor not discussed by the trial court is
significant: Mr. Fischer never showed Lt. Broderick any photographs or casts of what
were arguably "Thorn McAn prints," nor does the grand jury record suggest otherwise.
The significance of Fischer's superficial examination ofLt. Broderick is illustrated by
United States v. Miller, 527 F.3d 54 (3d. Cir. 2008).
During Miller's trial for possession of digital Images containing child
pornography, Miller was asked, "did you have sadomasochistic pictures?" Miller
responded, "not that I'm aware of, no." 527 F.3d at 77. The prosecution sought
unsuccessfully to introduce five images the government said were sadomasochistic and
asked no further questions on the subject.
At a pre-sentencing hearing following Miller's conviction, the government
36
introduced the five images and described their contents. The trial court concluded that
the images "could fairly be described as sadomasochistic pornography" and concluded
Miller had committed perjury, thereby warranting a harsher sentence.
On appeal, the circuit court held the examination of Miller about the images
lacked the precision necessary to support a finding of perjury in two important respects.
First, the government did not provide Miller with notice of the images to which it was
referring, nor did it describe or refresh Miller's memory about the contents of those
images. 527 F.3d at 78. Second, "the government made no attempt to probe Miller's
understanding of the term [sadomasochistic]." 527 F.3d at 78. Noting that the term
sadomasochistic is both contested and also fact-dependent, the circuit court stated that
the issue was not whether the trial court believed the images could fairly be described
as sadomasochistic, but instead whether Miller knew he possessed the images and
whether Miller himself considered those images to be sadomasochistic.
Similarly, here Lt. Broderick was merely asked about the "Thorn McAn prints."
He was not shown casts or photographs of casts or shoe print impressions of what
Masters's defense counsel characterized as "Thorn McAn prints." The grand jury record
does not support (nor does the trial record) a claim that Fischer ever asked about, or
described the characteristics, or showed photos of other shoe print impressions. Thus,
37
not only is Count Seven premised upon a false dichotomy, it also lacks the type of
precise questioning and foundation required to support a charge of perjury.
IV. The Trial Court Did Not Abuse Its Discretion When it Found
Count Eight Was Not Supported By Probable Cause. In
Addition, the Indictment Is Legally Insufficient.
A. Count Eight Is Legally Insufficient. It is Premised
Upon a False Dichotomy and Lacks the Type of
Precise Questioning Mandated by Bronston.
Count Eight alleges that Mr. Broderick testified falsely when he testified Leslie
Wills was sighted on Landings Drive near midnight in hours before Ms. Hettrick's
death. The indictment alleges the statement was false because "Leslie Wills never
asserted nor confirmed that the person she saw on Landings Drive was Peggy Hettrick."
Indict. at ~ 18.
Count Eight is predicated upon a false dichotomy and lacks the "precise
questioning [that] is imperative as a predicate for the offense of perjury." Bronston 409
U.S. 362, 93 S.Ct. 206. Two cases illustrate the point.
In United States v. Tonelli, 577 F.2d 194 (3d. Cir. 1978) defendant was charged
with perjury for allegedly giving false testimony about a transaction involving American
Bank & Trust Company. Specifically, Tonelli was asked "Did you ever handle any
38
pension fund check?" and "And you never handled any checks that went to the
American Bank & Trust Company?" 577 F.2d at 199. To each, Tonelli responded, "no
sir. " Id.
The indictment alleged Tonelli's statements were false because Tonelli had
"handled the transmission of one or more of the checks of the Paper Industry Union
Management Pension Fund to the American Bank and Trust Company. '" Id. The court
concluded the indictment itself, as well as the proof of perjury, was legally insufficient
because the charge of perjury was premised upon a false dichotomy:
Id.
It is immediately apparent that the "truth" paragraph does not
track the alleged false answer in paragraph 8; the defendant
was not asked ifhe "handled the transmission" of checks but
if he "handled any checks." The two statements are in fact
quite different.
Similarly, in State v. Ouimette, 415 A.2d 1052 (R.!. 1980), defendant was an
inmate who had been a witness in a jail house assault trial. The prosecution charged
Ouimette with perjury and alleged that Ouimette falsely denied 1) having a conversation
with a correctional officer and 2) telling the correctional officer not to come into the
"wing area" of the jail.
After a preliminary hearing, the trial court dismissed the case. As to the first
39
claim, the court found that Ouimette's shouted "Don't come in here" but that statement
did not constitute a "conversation." 415 A.2d at 911. As to the second claim, the court
noted that the "caged" and "wing" areas of the jail were different. "Since Costa stated
that Ouimette allegedly shouted 'Don't come in here' as Costa was entering the caged
area, it was not perjurious for Ouimette to respond that he at no time told anyone not to
come into the wing area." Id.
The Rhode Island Supreme Court affirmed the dismissal order. The prosecution
claimed that the differences upon which the trial court relied were "mere
technicalities.'" The court rejected the prosecution'S complaint, stating that it was
"clearly necessary" to examine Ouimette's testimony with "minute particularity." Id. See
also State v. Jacobozzi, 451 N.E.2d 749 (Ohio 1983)(testimony that Elliott had never
collected rent on behalf of lacobozzi not the same as Elliott never collecting any rent);
United States v. Good, 326 FJd 589 (4th Cir. 2003)(embezzlement conviction not the
same as conviction for theft or fraud).
Here, as in Tonelli and Ouimette, Count Eight is premised upon a false
dichotomy. Mr. Broderick was not asked any questions about whether Ms. Wills
asserted or confirmed that the person she saw was Peggy Hettrick. Simply stated, Count
Eight is premised upon a false dichotomy and lacks the type of precise questioning that
40
is a predicate for a charge of perjury.
B. Count Eight Is Not Supported by Probable
Cause.
Simply stated, the grand jury record establishes that the trial court did not abuse
its discretion when it determined Count Eight was not supported by probable cause.
As the trial court correctly determined that despite any inconsistencies in Wills's
observations about the woman on Landings Drive, there was insufficient evidence to
support a probable cause finding that Lt. Broderick did not believe it was Peggy
Hettrick. On this basis as well, the Dismissal of Count Eight must be affirmed.
CONCLUSION
Based upon the foregoing, Judge Bakke's Order dismissing Counts One, Seven,
and Eight must be affirmed.
DATED this pt day of February 2012
41
DILL DILL CARR STONBRAKER
& HUTCHINGS, P.C.
hM
Patrick D. T o ~ l e y , #15273
Thomas M. Dunn, #9395
Attorney for Defendant
CERTIFICATE OF MAILING
I hereby certify that on this 1
st
day of February 2012, I served the foregoing
PLEADING CAPTION upon the other party herein by depositing a true copy thereof
in the United States mail, postage prepaid, addressed to the following:
Kenneth R. Buck, District Attorney
Michael J. Rourke, Asst. District Attorney
Anthea L. Carrasco, Dep. District Attorney
PO Box 1167
Greeley, CO 80632
970-356-4010
970-352-8023 fax
mrourke@co.weld.co.us
tcarrasco@co.weld.co.us
Michele Overton
42