answer - people of colorado vs. james broderick

8/3/2019 Answer - People of Colorado vs. James Broderick

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COLORADO COURT OF APPEALS101 West Colfax Avenue, Ste 800Denver, Colorado 80203303-837-3785303-864-4534 faxDISTRICT COURT, LARIMER COUNTY,STATE OF COLORADOHon. Ingrid Bakke, District Court JudgeCase No. 2011CR1056, Div. 3CPlaintiff(s):PEOPLE OF THE STATE OF COLORADODefendant(s):JAMES BRODERICKAttorney for Defendant:Name: Patrick D. Tooley, # 15273Thomas M. Dunn, #9395Address: DILL DILL CARR STONBRAKER &

HUTCHINGS, PC455 Sherman Street, Suite 300Denver, Colorado 80203Phone No.: 303-777-3737Fax No.: 303-777-3823E-mail: [email protected]@dillanddill.com

A COURT USE ONLY A

Case No.: 11CA2623

JAMES BRODERICK'S ANSWER BRIEF


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CERTIFICATE OF COMPLIANCEI hereby certify that this brief complies with all requirements of C.A.R. 28 andC.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).

For the party responding to the issue:It contains, under a separate heading, a statement of whether such par ty agreeswith the opponent's statements concerning the standard of review and preservation for

appeal, and if not, why not.I acknowledge that my briefmay 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. Tooleyhomas M. Dunn


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TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiiSTATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . 1STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. The Trial Court Correctly Dismissed Count One Because it Was NotSupported by the Sworn Testimony of Two Witnesses or Probable Cause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11A. The Cryptic Note Fails to Satisfy the StrictRequirements of the Two Witness Rule. . . . . . . . . . . . . . . . . . . 11B. The Trial Court Did Not Abuse Its DiscretionWhen it Dismissed Count One for Lack ofProbable Cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17C. Dismissal of Count One Was Proper on theAdditional Ground That the ChallengedStatement, as a Matter of Law, Was NotMaterial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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............ 21i


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A. Count Seven is Premised Upon a False Dichotomy; the ChallengedStatement and Allegation of Falsity Are Not Irreconcilable. . . 21

B. The Grand Jury Record Demonstrates thatLt. Broderick's Testimonywas Truthful. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23C. Count Seven Is Premised Upon a Theory ofLiability Condemned by

Bronston v. United States. ............................. 30D. The Trial Court Did Not Abuse Its Discretion In Finding ProbableCause Was Lacking as to Count Seven. . . . . . . . . . . . . . . . . . . . 36

IV. The Trial Court Did Not Abuse Its Discretion When it Found Count EightWas Not Supported By Probable Cause. In Addition, the Indictment IsLegally Insufficient. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38A. Count Eight Is Legally Insufficient. It is Premised Upon a FalseDichotomy and Lacks the Type ofPrecise Questioning Mandated by

Bronston ........................................... 38B. Count Eight Is Not Supported by Probable

Cause.............................................. 41CONCLUSION ..................................................... 41

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TABLE OF AUTHORITIES

United States Supreme Court CasesBronston v. United States, 409 U.S. 352 S.Ct. 595 (1973) . . . 9-11,22,30,31,33,34United States v. Gaudin, 515 U.S. 506 S.Ct. 2310 (1995) .................... 19Weiler v. United States, 323 U.S. 606 S.Ct. 548 (1944)t ..................... 12

Colorado CasesBanks v. People, 696 P.2d 293 (Colo. 1985) .............................. 18People v. Aarness, 150 P.3d 1271 (Colo. 2006) ............................. 8People v. Anderson, 717 P.2d 978 (Colo. App. 1985) ..................... 9, 14People v. Buckallew, 848 P.2d 904 (Colo. 1993) ........................... 21People v. Collins, 32 P.3d 636 (Colo.App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8People v. Dunkin, 888 P.2d 305 (Colo. App. 1994) ......................... 19People v. Ellsworth, 15 P.3d 1111 (Colo.App. 2000) ....................... 11People v. Fueston, 749 P.2d 952 (Colo. 1988) ....................... 12, 14, 15People v. Kerst, 181 P.3d 1167 (Colo. 2008) .............................. 19People v. Lindsey, 204 P.2d 878(Colo. 1949) ........................... 9, 14People v. Lowe, 660 P.2d 1261 (Colo. 1983) ............................... 8People v. Luke 948 P.2d 87 (Colo.App. 1997) ............................. 10People v. Tucker, 631 P.2d 162 (Colo. 1981) .............................. 22

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People v. Vance, 933 P.2d 576 (Colo. 1997) .............................. 19People v. Warner, 251 P.3d 556 (Colo. App. 2010) ...................... 19,20People v. Westendorf, 542 P2d 1300 (Colo.App. 1975) ...................... 21Treece v. People, 40 P.2d 233 (Colo. 1934) ............................... 22

Federal CasesUnited States v. Chestman, 903 F.2d 75 (2d Cir. 1990) ...................... 16United States v. Garcia-Zambrano, 530 F.3d 1249 (lOth Cir. 2008) ........... 19United States v. Gatewood, 173 F3.d 983 (6 th Cir. 1999) .................. 10,34United States v. Good, 326 F.3d 589 (4th Cir. 2003) ......................... 34United States v. Miller, 527 F.3d 54 (3d. Cir. 2008) ..................... 19,36United States v. Tonelli, 577 F.2d 194 (3d. Cir. 1978) .............. 22, 22, 38,40United States v. Vesaas, 586 F.2d 101 (8 th Cir. 1978) ....................... 22

O u t ~ o f ~ S t a t e CasesCohen v. State, 985 So.2d 1207 (Fla.App. 2008) ..................... 10,27,34Goble v. State, 766 N.E.2d 1 (lnd.App. 2002) ............................. 27People v. White, 322 N.E.2d 1 (Ill. 1974) ................................. 34State v. Abrams, 178 P.3d 1021 (Wash. 2008) ............................. 19State v. Hutchins, 878 A.2d 241 (Vt. 2005) ............................... 16State v. Jacobozzi, 451 N.E.2d 749 (Ohio 1983) ........................... 40

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State v. Olson, 594 P.2d 1337 (Wash. 1979) ............................... 9State v. Ouimette, 415 A.2d 1052 (R.I. 1980) ........................... 39,40Vandivier v. State, 822 N.E.2d 1047 (Ind.App. 2005) ....................... 20

Statutes and RulesCrim.P.6(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

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STATEMENT OF ISSUES PRESENTED FOR REVIEWIssues ConcerningCountOne: In an arrest warrant affidavit, Lt. Broderick stated

Detective Wheeler observed on a bridge abutment orange spray-painted figures withgenitals that were "very sexual in nature." Count One alleges Broderick committedperjury because he knew the drawings were not orange. The trial court dismissed CountOne because it was not supported by the sworn testimony of two witnesses and for lackofprobable cause.

The issues concerning Count One are whether the trial court (a) abused itsdiscretion when it found probable cause lacking and (b) erred when it concluded that thecryptic note "orange paint?" failed to satisfy the strict requirements of the two witnessrule.

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 thatmatched the Thorn McAn shoe." Count Seven alleges this testimony was false becauseother police officers reported multiple prints similar to the shoe print showing the partialMcAn logo. The trial court dismissed Count Seven because the evidence establishedBroderick's answer was true and for lack of probable cause.

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The issues concerning Count Seven are whether: (a) the indictment stated and therecord established a cognizable claim ofperjury; (b) the record supports the trial court'sfinding that Broderick's answer was truthful; and (c) the trial court abused its discretionwhen it found probable cause lacking.

Issues Concerning Count Eight: During the Masters's trial, the parties stipulatedthat Lt. Broderick would be permitted to testify without objection to hearsay about whatthe police department's investigation may have revealed about Peggy Hettrick'swhereabouts before she was killed. Broderick testified that Hettrick was sighted byLeslie Wills on Landings Drive around midnight. Count Eight alleges Broderickcommitted perjury because "Leslie Wills never asserted nor confirmed that the personshe saw on Landing's Drive was Peggy Hettrick." The trial court dismissed Count Eightfor lack of probable cause.

The issues on appeal are whether: (a) the trial court abused its discretion when itfound probable cause lacking and (b) the indictment states and the record establishes acognizable claim of perjury.

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STATEMENT OF THE CASECourse of Proceedings

In March 1998, Timothy Masters was convicted for the February 11, 1987 murderof Peggy Hettrick. The conviction was affirmed, and on May 5, 2003, Masters filed amotion for post-conviction relief. Thereafter, David Wymore and Maria Liu wereappointed to represent Masters.

In January 2008, Special Prosecutor Don Quick filed a motion to vacate Masters'sconviction based on new advances in DNA testing and results revealing partial DNAprofiles on Hettrick's clothing that did not match Masters. The motion was granted andthe case against Masters was later dismissed. During post-conviction proceedings,Masters's attorneys filed two motions for the appointment ofa special prosecutor based,

upon their claims ofcriminal conduct by the Fort Collins Police Department and perjuryby Lt. Broderick.

On January 4, 2008, Nineteenth Judicial District Attorney Ken Buck wasappointed special prosecutor. Buck investigated three allegations ofwrongdoing: (a)whether FCPD officers eavesdropped on a conversation between Masters and his father;(b) whether Broderick testified falsely when asked how much additional involvement hehad in the Hettrick homicide investigation after 1982 (this corresponds to Count 9); and

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(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, TrialRecord, p. 177}.1

On July 8, 2008, DA Buck issued a report stating Broderick, FCPD officers, andthe 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 oneprint was the only identifiable print that matched theThorn McAn shoe, is also consistent with an objectivereview 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 McAnshoe. None of the other cast impressions taken from thefield during this investigation, nor any of the photographstaken, bears this same oval trademark. To a non-experteye 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 notedthat even Masters's post-conviction shoe print expert stopped short of stating the otherprints 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 jurytranscripts were introduced on July 13, 2011.

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on grounds of newly discovered evidence. On June 30, 2010, Broderick was indictedon seven counts of perjury, one of which Judge James Hartmann dismissed beforearraignment. In April 2011, Broderick moved to dismiss the indictment for lack ofsubject matter jurisdiction because the indictment was legally insufficient and thecharges were time barred. Because the second issue required an evidentiary hearing,Judge Hartmann agreed to address the legal sufficiency of the indictment first, and inMay 2011 he dismissed the indictment.

On July 27,2011, the prosecution obtained a second perjury indictment, this timecontaining nine counts. On December 19,2011, the trial court granted Broderick'smotions to dismiss Counts One, Seven, and Eight. This appeal followed.

Statement of FactsOn February 11, 1987, while walking in a field near his home, Timothy Masters

saw a bloody drag trail and the partially clad body ofPeggy Hettrick. Hettrick had beenfatally stabbed in the back with a large knife. (Ex. 48 at 2, Exhibitsfalders, p.154). Herpubic hairs, vagina, and breasts were exposed and one ofher nipples had been removed.Masters then went to school. (Ex. 48 at 1, Exhibitsfalders, p.153). He did not report topolice what he saw and later claimed he thought the body was a Resusi-Annie doll. (For

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a detailed recitation of the evidence giving rise to the arrest of Masters see the August6, 1998 arrest warrant affidavit. (Exhibit 48, Exhibits folders, p. 153-185).

That same day, investigators recovered hundreds ofpages of graphic sexual andviolent drawings from Masters's bedroom. Investigators also saw sexual drawings nearthe murder scene, to include on bridge abutments and in a Quonset hut. Before the 1998arrest 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 affidavitto her husband to give to Lt. Broderick. Id. But Wheeler did not speak to Broderickabout the affidavit, and her objection to the inclusion ofthe drawings in the affidavit washer belief that the bridge abutment drawings were not associated with those ofMasters.Id. at 127:7-13.

Investigators also took photographs and cast impressions ofshoe prints in the fieldand bloody drag trail made by Masters's Athletix shoes. Investigators also took photosand casts of shoe prints containing a series of horizontal lines. The only shoe printinvestigators could match to a particular brand of shoe was the print with the partialThorn 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

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shoe impression expert couldn't even say whether they were createdby a shoe, much lessa particular brand of shoe. (Id. at 152:18 to 153:12). When Lt. Broderick was askedduring the Masters's murder trial about the "Thorn McAn print," he pointed to aparticular print and stated, "specifically, it's this one right here, number 1. That's theonly identifiable print that matched the Thorn McAn shoe."

Finally, as part of the investigation, investigators attempted to determineHettrick's whereabouts before her murder. Leslie Wills alerted police that she had seena woman at around midnight on Landings Drive whose appearance matched the generaldescription 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, andalthough 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 FCPDinvestigative 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 shewoman she saw on Landings Drive. Lt. Broderick was the government's advisorywitness and was in the courtroom when she and the other witnesses testified. (2010Grand Jury Tr. 36:13-23; 39:8-11, June 4,2010, Ex. 68A).

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Lt. Broderick testified just after Leslie Wills. (2010 Grand Jury Tr. 138:7-9, June18,2010, Ex. 69). The prosecution and defense stipulated that Lt. Broderick couldtestify "as to the chronology ofevents to the best we could determine ofPeggy Hettrick'swhereabouts prior to her homicide." (Id. at 169:4-6). Lt. Broderick testified about theinvestigation into Hettrick's whereabouts and stated that Hettrick was sighted by LeslieWills around midnight on Landings Drive. Wills's sighting ofHettrick was consistentwith the general time frame that Hettrick's neighbor, Dean Main, had seen Hettrick ather nearby apartment. (Ex. 65, Exhibits folder, p. 240).

Standard of ReviewThe Court reviews the trial court 's probable cause determination under an abuse

ofdiscretion standard. People v. Collins, 32 PJd 636, 640 (Colo.App. 2001). The trialcourt's conclusions oflaw are reviewed de novo. Id. The trial court's judgment maybeaffirmed "on any ground supported by the record, whether relied upon or evenconsideredby 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 isconsistent with what is outlined here.

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SUMMARY OF ARGUMENTWhile 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 ofproofin a perjury case are amongst the strictest known to the law. State v. Olson, 594 P.2d1337 (Wash. 1979).

For example, Colorado's "two witness rule" requires a perjury indictment to besupported by the sworn testimony of at least two witnesses. Crim.P. 6(b). When asecond witness is unavailable, Colorado law permits a perjury prosecution only if thecorroborative evidence is so direct and positive as to be equal to the testimony ofanotherdirect witness. The corroborative evidence must be, by itself, inconsistent with theinnocence of the accused and must contradict the challenged statement in definite andpositive terms.

In addition, common law principles limit the circumstances under which a perjurycharge may lie. As the unanimous Supreme Court noted in Bronston, the common law"throws every fence round a person accused of perjury ... (internal quotations andcitations omitted)." 409 U.S. at 359-60, 93 S.Ct. at 600. Perjury statutes, noted the

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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, safeguardagainst errant testimony." Id.

A charge of perjury must be based upon a false statement. Perjury may not bepremised 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 explicitinformation constitute perjury, even where a truthful answer may create a misleadingimpression.Id.

Equally important, "precise questioning is imperative as a predicate for the offenseofperjury." Bronston, 409 U.S. at 362, 93 S.Ct. 602. Questions posed to elicit perjuredtestimony must be asked with appropriate specificity necessary to result in an equallyspecific statement of fact. Id. A charge of perjury may not be premised upon a falsedichotomy. United States v. Gatewood, 173 F.3d 983 (6 th Cir 1999). Rather, perjurymust 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 thequestioner places upon an answer or upon an answer to an ambiguous question. People

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v. Luke 948 P.2d 87, 92 (Colo.App. 1997).

The trial court properly dismissed Count One because it was supported by thesworn testimony ofonly one witness or probable cause. The cryptic note does not satisfythe "strict requirements" of the two witness rule, nor did the trial court abuse itsdiscretion when it found probable cause lacking. And although the trial court did notreach 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 premisedupon a false dichotomy and the record supports the trial court's finding that Broderick'stestimony was truthful. Further, Count Seven is premised upon the "truthful butmisleading" theory of perjury condemned in Bronston. Finally, the trial court did notabuse its discretion when it found probable cause lacking.

The trial court properly dismissed Count Eight for lack ofprobable cause. CountEight is also premised upon a false dichotomy and dismissal was proper on that groundas well.

ARGUMENTI. The Trial Court Correctly Dismissed Count One Because it WasNot Supported by the Sworn Testimony of Two Witnesses orProbable Cause.

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A. The Cryptic Note Fails to Satisfy the StrictRequirements 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 thesworn 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 toconvict 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 andhostilities against adverse witnesses, and the two witness rule protects witnesses fromhasty 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 rulerecognizes 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 "theprosecution's evidence stems solely from documents originating from the defendanthimself." People v. Fueston, 749 P.2d 952, 957 (1988). The prosecution concedes that

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the documentary evidence doctrine does not apply here. Opening Briefat 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 bridgeabutment 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 thanblack] 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 1988affidavit she had received from prosecutors Terry Gilmore andJolene Blair and gave the annotated draft to her husband to deliverto Broderick. (Id. at123:13 to 125:3; 126: 14 to 127: 13);e. shortly before trial (in 1999), Wheeler saw the affidavit and thereference to the drawings; (Id at 129:5-24); andf. 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 confrontedBlair about the contents of the affidavit or the color of the drawings. (2010 Grand JuryTr. 158:21 to 160:3, June 18, 2010, Ex. 69).

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Nevertheless, the prosecution maintains that Count One survives dismissal underan exception to the two witness rule. The exception provides that a perjury charge maysurvive dismissal when supported by the testimony of one witness "and by otherindependent and corroborating circumstances which is deemed of equal weight of thetestimony ofanother witness." People v. Anderson 187 P.2d 934,935 (Colo. 1947). Insuch cases, the "strict requirement" of the exception "requires that the proposedcorroborative circumstance must be of such direct and positive strength as to betantamount to the testimony ofanother direct witness." People v. Lindsey, 204 P.2d 878,880 (Colo. 1949). The corroboration "must contradict in definite and positive terms thestatement 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'shandwritten notes dated July 6-July 8, 1998, labeled "Wheeler" and consisting ofmorethan twenty lines of handwritten notes and questions, one of which reads, "orangepaint?"- satisfies the requirements of the exception to the two witness rule. (Ex.6J,Exhibits folder, p.234).

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and the documentary evidence doctrine in support of ts claim. Although the prosecutionconcedes the doctrine does not apply, it nonetheless argues the rationale underlying thatdoctrine carries the day since Broderick is the source of the note.

The prosecution offers no authority to support this mix and match approach to thetwo witness rule. More importantly, the prosecution completely ignores the substantialdifferences between Lt. Broderick's handwritten note and the signed and verified publicrecords and corporate documents in Fueston.

In Fueston, defendant was charged with perjury for falsely testifying before theColorado Springs Liquor Authority that he was unaware any stock in a Washingtonliquor licensee (the Howven company) had been issued to him. To prove perjury theprosecution relied upon two documents. The first was a statement signed and sworn tounder penalty of perjury by Fueston as secretary of Howven, Inc., filed with theWashington Liquor Control Board, and declaring that Fueston owned 412 shares ofHowven stock. The second statement was an official corporate record filed with theWashington Liquor Control Board, signed by Fueston as secretary ofHowven, Inc., andcontaining a resolution that the company's secretary-treasurer was to issue Fueston 25%percent of Howven' s stock.

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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 documentto be filed in compliance with legal reporting obligations with a regulatory agency.

The trial court correctly described the note as "cryptic". At most, Exhibit 61establishes that in early July-a month before the affidavit was obtained and during theongoing investigation-Lt. Broderick made note ofa question he had at that time aboutthe drawings. The note does not contradict Broderick's statement in definite andpositive terms, nor is it in such direct and positive terms as to be tantamount to thetestimony of another direct witness. The note is also not, by itself, inconsistent withBroderick'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 consistentwith 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. Caselaw 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 telephonemessages and blotter notes "wholly insufficient" to support perjury conviction; evidencelacked sufficient independent probative value and was not, in itself, inconsistent with

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Chestman's innocence.); People v. Cash, 200 N.W.2d 83, 87 (Mich. 1972)(traffic logbook was ambivalent and lacked force and character necessary to satisfy two witnessrule); and State v. Hutchins, 878 A.2d 241,244 (Vt. 2005)(transcript of hearing andother evidence insufficient corroboration and not inconsistent with innocence).

B. The Trial Court Did Not Abuse Its DiscretionWhen it Dismissed Count One for Lack ofProbable Cause.

The trial court did not abuse its discretion when it dismissed Count One for lackofprobable cause. A further response would be unnecessary but for the prosecution'sincorrect characterization of the grand jury record. Specifically, the prosecutioncontends that Wheeler "instructed the Defendant" to remove the reference to the orangespray painted drawings and that Wheeler's testimony "clearly demonstrates that theDefendant did not believe that the drawings were orange." Opening Briefat pp.8 and25.

To the contrary, Wheeler testified that she obtained a copy of the affidavit fromBlair and Gilmore and she gave the affidavit with her notes to her husband to give toBroderick. (2010 Grand Jury Tr. 124:3-10, June 4,2010, Ex. 68B). She never testifiedthat she spoke to Broderick about her suggested changes (nor did she). More

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importantly, the basis of Wheeler's objection was not the color of the drawing, butrather that the affidavit connected the bridge abutment drawings with Masters'sdrawings and Wheeler did not believe they were similar. Wheeler testified: "And that'swhy I objected. I said, you need to take that out of there, because I'm the only one thatsaw those drawings, and in my opinion they're not anything-they're not similar, andthere'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 thedrawings are similar. (Exhibit 48, Exhibits folder, p.3).

C. Dismissal of Count One Was Proper on theAdditional Ground That the ChallengedStatement, as a Matter of Law, Was NotMaterial.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 warrantaffidavit is to establish probable cause. Probable cause exists when the facts andcircumstances are sufficient to warrant a person ofreasonable caution to believe that theperson about to be arrested has committed a criminal offense. Banks v. People, 696 P 2d293, 296 (Colo. 1985).

The challenged statement, found in a 29 page affidavit not including attachments,18


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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 incriminal cases. In such cases, the court first determines ifan inaccuracy in the affidavitis 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 falsestatement and determines if the remaining statements in the affidavit neverthelessestablish 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 appliesa de novo standard of review. United States v. Garcia-Zambrano, 530 FJd 1249, 1258(10th Cir. 2008); People v. Kerst, 181 PJd 1167, 1173 (Colo. 2008).

Where materiality is an element ofperjury, as it is in Colorado, it must be provento 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). Butmateriality is a mixed question of fact and law, and such questions are assigned to thecourt for one purpose and the jury for another. Gaudin, 515 U.S. at 521, 113. S.Ct. at2319 (1995). Thus, even though the prosecution must prove materiality beyond areasonable doubt, the court nevertheless determines whether a challenged statement is

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legally sufficient to establish perjury in the first instance. See State v. Abrams, 178 P.3d1021 (Wash. 2008)(procedure of trial court making preliminary determination ofmateriality 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 beimmaterial); Vandivier v. State, 822 N.E.2d 1047, (lnd.App. 2005).

Whether the challenged statement is material must be viewed solely in the contextof he affidavit in which the challenged statement is found. People v. Warner, 251 P.3d556, 562 (Colo. App. 201 O)(reviewing court considers only information within fourcorners of the affidavit).

Here, the affidavit contains no statement from anyone attributing the spraypainted drawings to Masters. The affidavit does not claim Masters owned or had accessto orange paint or that orange paint was found in his home. None of his Masters's sixlarge 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 ina ditch downstream from the murder scene, no evidence established that it was themurder 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 werefound. (Ex. 48 at 9, Exhibits folder, p.59). The knife did not match Masters's knife

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sheaths, supporting an inference that the knife and nothing to do with either Masters orHettrick.

Whether the challenged statement is material (Le., could have changed theprobable cause finding) is easily tested. The court can simply strike the challengedstatement, i.e., "orange paint" and determine if the affidavit nevertheless establishesprobable cause. Alternatively, the trial court can accept Wheeler's current speculationthat the drawings were black and substitute the phrase "black in color" for ~ ~ o r a n g e incolor." In either instance, the affidavit establishes probable cause and thus, as a matterof law, the challenged statement, is not material.

II. The Trial Court's Order Dismissing Count Seven Must BeAffirmed. Count Seven is Legally Insufficient, Broderick'sTestimony was Truthful, and Count Seven Is Not Supported byProbable Cause.A. Count Seven is Premised Upon a False Dichotomy;the Challenged Statement and Allegation of FalsityAre Not Irreconcilable.

1. A Perjury Indictment Must Be Predicated on a False Statement not a FalseDichotomy. Where a statute defines an offense in general terms, such as perjury, theindictment must allege the acts and conduct which are deemed to have violated the

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statute. People v. Buckallew, 848 P.2d 904, 910 (Colo. 1993). A perjury indictmentmust 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 thefalsity of he statement or testimony on which the charge is based (emphasis added)."People v. Broncucia, 540 P.2d 1101,1103 (Colo. 1975). "To accomplish these purposesthe 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 cannotstand. 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 theallegedly perjurious statements and the objective truth in stark contrast so that the falsityis 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 allegesLt. Broderick knowingly made a false statement on or between March 19 and March 27,1999, when he testified at trial as follows:

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Q: (By Mr. Fischer) ... But the Thorn McAn shoe prints,according to your investigation, were found right there alongthe curb line where the blood pool is; isn't that correct?

A: Specifically, it's this one right here, number 1.That's the onlyidentifiable print that matched the Thorn McAn shoe.

Notably, Count Seven does not allege that multiple identifiable prints matchedthe 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 theshoe print showing a partial Thorn McAn logo, which shoe prints were discovered alongand within the bloody drag trail and between the location ofPeggy Hettrick's body andthe curb, and near the curb where a large pool ofblood was found." (Indict. at 17, TrialCourt Record p.16).

Put simply, Count Seven is premised upon a false dichotomy. There is nothingirreconcilable about Broderick's determination that only one identifiableprintmatchedthe Thorn McAn shoe on the one hand and officers reporting shoe prints similar to theprint showing the partial Thorn McAn logo on the other. Both statements can be (andare) true. As a result, Count Seven is legally insufficient and must be dismissed. UnitedStates v. Gatewood, 173 F3.d 983 (6 th Cir. 1999)(dismissing indictment premised onfalse dichotomy, i.e., certifying that one has made payments to subcontractors is not

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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 becausehandling 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'stestimony was truthful. First, lead prosecutor Terry Gilmore testified that "there werecertainly a number of shoe prints, one of which you could discern a Thorn McAnimprint, and it had horizontal lines on the bottom of the shoe; and there were otherpartial prints that had the same horizontal lines, but not - I don't think there was everany other one that had a Thorn McAn logo on it, if that 's the correct word for it." (2010Grand Jury Tr., 43:4-10, June 4,2010, Ex. 68B).

Gilmore met with the investigators who took photos ofthe shoe print impressionsand 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 scenediagram. (Id. at 43: 21 to 44:3; 44: 14-21). Gilmore testified that in the end they did notknow what the shoe print evidence showed and for the time ever he simply submittedthe shoe print evidence and told the jury to decide what was important. (Id. at 42:22-25).

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Second, Jolene Blair's grand jury testimony supports the trial court's finding:Q: (by DA Rourke) . . . correct me if I'm wrong, therewere other shoe prints that mayor may not have

belonged to a Thorn MeAn. But suffice it to say at thispoint no Thorn McAn shoes were ever sent by the FortCollins Police Department to the FBI for any kind ofcomparison. It was simply Mr. Masters' shoes sent,and then there was some discussion about maybe theseother ones were Thorn MeAns. Is that consistent withyour 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 thatwas easily understood. (Id. at 161:20-23). The evidence was a mess and Blair didn'tknow 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 to163:8). The prosecution's trial team took a whole day examining the shoe printevidence in a conference room trying to recreate how the shoe prints appeared in thefield. (Jd. at 163: 17-23). Blair enlisted the help ofOfficer Swihart, who photographedthe shoe prints. (Jd. at 169: 17 to 170:5). Blair even invited Masters's defense attorneysto the conference room to look at and help figure out the shoe print evidence. (Id. at167:13-19; 171:6-15).

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Third, the testimony ofSergeant Gonzales confirms that he, too, determined onlyone identifiable print matched the Thorn McAn shoes. Gonzales told the grand jury thatthe shoe print Lt. Broderick testified about was only "somewhat identifiable" whenGonzales saw it. (2010 Grand Jury Tr. 96:11-15, May 21,2010, Ex. 67B). Gonzalezcould not make out the logo or even the letters in the shoe print impression. (Id. at98:4-12). Only after a photograph ofthe image was blown up and a reverse image of heimpression had been created could Gonzales "discern details that weren't readilyapparent." (Id. at 102:11 to 103:5). On March 13, 1987, a month after the homicide,Gonzales still did not know what brand ofshoe was associated with the print, so he wentto shoe stores searching for a shoe type that, in DA Rourke's words, "may have beenconsistent with that impression." (Id. at 103:9-25). Sergeant Gonzales was not allowedto take the McAn shoes so he took photos of the exemplar shoes. When DA Rourkeasked Sergeant Gonzales about his trial testimony concerning the "Thorn McAn shoeprints" [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 ThornMcAn 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 QI0325


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through 107 (See Ex. 17 through 24, Exhibits folder, pp.26-33). In fact, the FBIconcluded 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 severalarguments why the trial court's finding that Lt. Broderick's answer was truthful iswrong. The prosecution first argues that the FBI's high resolution photographs ofcastsQ101 (the identifiable print that matched the McAn shoe) and Q 103 through 107 (castsofother prints that mayor may not correspond to a Thorn McAn shoe) reveal in "muchmore detail" than the crime scene photos the presence ofmultiple shoe prints containingstriations that are "identifiable to and matched the sole of the Thorn McAn shoes." SeeOpening Briefat 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 areidentifiable matches to the exemplar Thorn McAn shoes. (Nor do Exhibits 18 through24 reveal more pattern characteristics than the photographs of the prints with striationsthat Masters's defense attorneys introduced into evidence at trial through SergeantGonzales.)

FBI shoe print expert Michael Smith told the grand jury that in the FBI's two26


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databases "[w]e have about 30,000 different out sole patterns. But in the caststhemselves [Q I 0 1 through Q 108, excluding Q 102] there was only a series of straightlines. And to me, that's not a whole lot of detail. I don't even know if it wascreated by a shoe print or not ... So just because I see a series ofhorizontal linesI 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 theFBI photos are "identifiable to and matched the sole of the Thorn McAn shoes"(Opening Briefat 33) consists of a conclusion or opinion, which cannot serve as thebasis 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 theidentification ofa person or object with which the prosecution disagrees, that person canbe charged with perjury. Here, for example, under the prosecution's theory, Gilmoreand Blair are guilty of perjury. After all, Gilmore and Blair saw the FBI's highresolution photographs and extensively examined all the shoe print evidence. Under theprosecution's theory, they aided and abetted Lt. Broderick's (alleged) perjury.

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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 helpedWagner measure the actual shoe prints and personally inspected the McAn shoes. Yetin both proceedings testified about only one Thorn McAn print.

Next, the prosecution relies on Grand Jury Exhibit 89, which it contends areBroderick's notes from his "working file." (Ex. 89, Exhibitsfolder,pp. 288-291). Thegrand 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 evidenceconcerning 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 thegrand jury record support the prosecution's claims that the notes are Broderick's. Infact, the notes were Detective Reed's. See Attachment A, Affidavit ofDet. Reed. Lt.Broderick provides Attachment A to respond not to the grand jury record, but to theerroneous claim in the prosecution's Opening Brief.

Finally, the prosecution claims Sherri Wagner's testimony establishes the falsityofLt. Broderick's testimony. It does not. Wagner testified that she saw and measureda 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,

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2010, Ex. 67B). She testified these prints were "all consistent" with a "pattern" whichconsisted of "a striation of fairly regular lines across it with an oval-type centertrademark that we couldn't figure out at the time."(ld. at 46:6-9). Ms. Wagner wasshown Exhibit 7 (showing the identifiable print that matched the McAn shoe) and shethen 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 thetrail." (Id. at 50: 13-16).

Although Ms. Wagner described the prints she saw as "consistent" with thepattern shown in Exhibit 7, she never testified that any ofthe other referenced prints hadthe "oval"with the identifiable McAn logo. In fact, upon inquiry of one of the GrandJurors: "When you say they were all the same, is that your knowledge based on the, youknow, experts, or is that just your impression that day?" Ms Wagner testified:" That'smy knowledge based upon looking at the striations that day." (ld. at 59:15-19). Theprosecution never provided to her, the grand jury, or any other grand jury witness, aphotograph or cast of another print that showed a Thorn McAn logo, nor could they asit does not exist.

Wagner's testimony is not inconsistent with that ofthe other witnesses who verifythe truthfulness of Broderick's testimony, to include that of Sergeant Gonzales who

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helped Wagner measure the prints, and who, as noted by the court, when asked "Wereyou ever asked, either by the prosecution at trial or by the defense, about the work youdid on the Thorn McAn shoe prints?" corrected the prosecutor stating "On the- the shoeprint?" (Jd. at 114:20-23); and who would only say, when asked by DA Rourke ifhebelieved those prints "were, in some way, associated with" the identifiable print thatmatched the McAn shoe, "I mean, the assumption most likely would be that they wereassociated. (emphasis added)." (Jd. at 101:18-22). Nor does the testimony suggest thatBroderick's testimony was false. Broderick was never assigned the task ofmeasuringand examining the actual shoe prints in the field. And regardless of what conclusionsWagner 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 ofLiability Condemned by Bronston v. United States.Although the prosecution claims otherwise, the grand jury record, as well as the

language of he indictment, demonstrates that Count Seven is premised upon the theoryof liability expressly condemned in Bronston. Although the trial court found itunnecessary to reach this issue, the dismissal ofCount Seven should be affirmed on thisbasis as well.

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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 anySwiss Bank accounts, but he had maintained a personal bank account in Geneva,Switzerland from 1959 through 1964. Based upon this testimony, Bronston wascharged with and convicted of perjury.

On appeal, the government conceded Bronston's testimony was literally true, butargued his testimony was perjurious because it was misleading and made with an intentto mislead, arguing that whether Bronston's testimony was made with an intent tomislead was a jury issue. The government urged the Supreme Court to liberallyconstrue the perjury statute. The Supreme Court refused to do so and rejected each ofthe government's arguments.

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First, the Supreme Court strictly construed the perjury statute: "We perceive noreason why Congress would intend the drastic sanction ofa perjury prosecution to curea testimonial mishap that could readily have been reached with a single additionalquestion by counsel alert-as every examiner out gobe-to the incongruity ofpetitioner'sunresponsive answer." 409 U.S. at 358, 93 S.Ct. at 600. "It is the responsibility of thelawyer," noted the Supreme Court, "to probe; testimonial interrogation, and crossexamination in particular, is a probing, prying, pressing form of inquiry. It is thelawyer'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 wastrue and conceded that Bronston's second answer was not responsive and in casualconversation a reasonable implication would be that he never had a personal bankaccount. But, said the Supreme Court, "we are not dealing with casual conversation andthe statute does not make it a criminal act for a witness to state any material matter thatimplies 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 shrewdlycalculated to evade, are to be remedied through the questioner's acuity and not by wayofperjury prosecution. 409 U.S. at 362, 93 S.Ct. 601-02. "To hold otherwise would be

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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 themisunderstandings and inadequacies of examiners, and might well fear having thatresponsibility tested by a jury under the vague rubric of 'intent to mislead' or 'perjuryby implication. " 409 S.Ct. 359, 93 S.Ct. 600.

The grand jury record here reveals that Count Seven is predicated upon theprecise theory ofliability condemned in Bronston. The District Attorney's own ChiefInvestigator, who testified after Wagner and Gonzales and Gilmore and Blair, told thegrand jury:

. . . And he [Lt. Broderick] diverts attention and goes toplaster cast number one, which was, as you recall, wasthat shoe print that actually had the partial Thorn McAnlogo on it. So his statement, althoui:h truthful, he's fullyaware of what's he's trying to do in that instance, andthat's divert attention away from the obvious.

2010 Grand Jury Tr. 127:12-18, June 18, 2010, Ex. 69. Investigator Olson'stestimony confirms the truthfulness of Broderick's testimony, but it also reveals theprosecution's reliance on the precise theory of liability condemned in Bronston.

The prosecution has advanced a series of attacks on Bronston. First, theprosecution argued to the trial court that Bronston only applies where the challenged

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statement is made during cross-examination. The prosecution also argued before the

trial court and argues here that Bronston only applies to indisputably nonresponsivestatements. Even a casual review of the relevant case law cited in this briefdemonstrates that this claim is groundless. See People v. Luke, 948 P.2d 87, 92(Colo.App. 1997)(followingBronstonand affirming dismissal offalse statement chargewhere 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 (6th Cir. 1999)(responsive statement contained in sworn certification);United States v. Good, 326 F.3d 589 (4th Cir. 2003)(responsive statement in FAAapplication); People v. White, 322 N.E.2d 1, 3-4 (Ill. 1974)(responsive statement inliquor 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 Bronstonare mere dicta. The plethora of case law cited by Lt. Broderick demonstrates that stateand federal courts across the county routinely apply the legal principles discussed in thisbrief 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

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prosecution argues that it is "plausible" that Lt. Broderick's said one identifiable printmatched the Thorn McAn based solely on the striations (i.e., the partial logo wasmeaningless), According to the prosecution the FBI photos of the casts show striationswhich "were in fact identifiable to and matched the sole of the Thorn McAn shoe," SeeOpening Briefat 32-33. Thus, reasons the prosecution, if Broderick's identificationwere premised solely on the striations, he committed perjury.

Firstofall, the prosecution's argument violates common sense. Businesses spendbillions ofdollars on logos, trademarks, and trade dress, because that is what makes anobject identifiable.

Second, nothing in the grand jury record supports the claim that Broderick'sstatement that only one identifiable print matched the McAn shoe was based only uponthe striations and that the partial McAn logo was irrelevant.

Third, the prosecution's claim that the striations are identifiable to and match theMcAn 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 AgentSmith 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

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series ofhorizontal 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 InFinding Probable Cause Was Lacking as to CountSeven.The grand jury record demonstrates that Count Seven was not supported by

probable cause. In light of the discussion above, additional comment on the grandjuryrecord is unnecessary. But an additional factor not discussed by the trial court issignificant: Mr. Fischer never showed Lt. Broderick any photographs or casts ofwhatwere arguably "Thorn McAn prints," nor does the grand jury record suggest otherwise.The significance of Fischer's superficial examination ofLt. Broderick is illustrated byUnited States v. Miller, 527 F.3d 54 (3d. Cir. 2008).

During Miller's trial for possession of digital Images containing childpornography, Miller was asked, "did you have sadomasochistic pictures?" Millerresponded, "not that I'm aware of, no." 527 F.3d at 77. The prosecution soughtunsuccessfully to introduce five images the government said were sadomasochistic andasked no further questions on the subject.

At a pre-sentencing hearing following Miller's conviction, the government

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introduced the five images and described their contents. The trial court concluded that

the images "could fairly be described as sadomasochistic pornography" and concludedMiller had committed perjury, thereby warranting a harsher sentence.

On appeal, the circuit court held the examination of Miller about the imageslacked the precision necessary to support a finding ofperjury in two important respects.First, the government did not provide Miller with notice of the images to which it wasreferring, nor did it describe or refresh Miller's memory about the contents of thoseimages. 527 F.3d at 78. Second, "the government made no attempt to probe Miller'sunderstanding of the term [sadomasochistic]." 527 F.3d at 78. Noting that the termsadomasochistic is both contested and also fact-dependent, the circuit court stated thatthe issue was not whether the trial court believed the images could fairly be describedas sadomasochistic, but instead whether Miller knew he possessed the images andwhether 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 whatMasters's defense counsel characterized as "Thorn McAn prints." The grand jury recorddoes not support (nor does the trial record) a claim that Fischer ever asked about, ordescribed the characteristics, or showed photos of other shoe print impressions. Thus,

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not only is Count Seven premised upon a false dichotomy, it also lacks the type ofprecise questioning and foundation required to support a charge ofperjury.

IV. The Trial Court Did Not Abuse Its Discretion When it FoundCount Eight Was Not Supported By Probable Cause. InAddition, the Indictment Is Legally Insufficient.

A. Count Eight Is Legally Insufficient. It is PremisedUpon a False Dichotomy and Lacks the Type ofPrecise Questioning Mandated by Bronston.

Count Eight alleges that Mr. Broderick testified falsely when he testified LeslieWills was sighted on Landings Drive near midnight in hours before Ms. Hettrick'sdeath. The indictment alleges the statement was false because "Leslie Wills neverasserted 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 "precisequestioning [that] is imperative as a predicate for the offense ofperjury." Bronston 409U.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 chargedwith perjury for allegedly giving false testimony about a transaction involving AmericanBank & Trust Company. Specifically, Tonelli was asked "Did you ever handle any

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pension fund check?" and "And you never handled any checks that went to theAmerican Bank & Trust Company?" 577 F.2d at 199. To each, Tonelli responded, "nosir. " 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 UnionManagement Pension Fund to the American Bank and Trust Company. " Id. The courtconcluded the indictment itself, as well as the proofofperjury, was legally insufficientbecause the charge of perjury was premised upon a false dichotomy:

Id.

It is immediately apparent that the "truth" paragraph does nottrack the alleged false answer in paragraph 8; the defendantwas not asked ifhe "handled the transmission" of checks butif he "handled any checks." The two statements are in factquite different.

Similarly, in State v. Ouimette, 415 A.2d 1052 (R.!. 1980), defendant was aninmate who had been a witness in a jail house assault trial. The prosecution chargedOuimette with perjury and alleged that Ouimette falsely denied 1) having a conversationwith 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 first39


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claim, the court found that Ouimette's shouted "Don't come in here" but that statementdid not constitute a "conversation." 415 A.2d at 911. As to the second claim, the courtnoted that the "caged" and "wing" areas of the jail were different. "Since Costa statedthat Ouimette allegedly shouted 'Don't come in here' as Costa was entering the cagedarea, it was not perjurious for Ouimette to respond that he at no time told anyone not tocome into the wing area." Id.

The Rhode Island Supreme Court affirmed the dismissal order. The prosecutionclaimed that the differences upon which the trial court relied were "meretechnicalities.'" The court rejected the prosecution'S complaint, stating that it was"clearly necessary" to examine Ouimette's testimony with "minute particularity." Id. Seealso State v. Jacobozzi, 451 N.E.2d 749 (Ohio 1983)(testimony that Elliott had nevercollected rent on behalfof lacobozzi not the same as Elliott never collecting any rent);United States v. Good, 326 FJd 589 (4th Cir. 2003)(embezzlement conviction not thesame as conviction for theft or fraud).

Here, as in Tonelli and Ouimette, Count Eight is premised upon a falsedichotomy. Mr. Broderick was not asked any questions about whether Ms. Willsasserted or confirmed that the person she saw was Peggy Hettrick. Simply stated, CountEight is premised upon a false dichotomy and lacks the type ofprecise questioning that

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is a predicate for a charge of perjury.

B. Count Eight Is Not Supported by ProbableCause.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'sobservations about the woman on Landings Drive, there was insufficient evidence tosupport a probable cause finding that Lt. Broderick did not believe it was PeggyHettrick. On this basis as well, the Dismissal ofCount Eight must be affirmed.

CONCLUSIONBased upon the foregoing, Judge Bakke's Order dismissing Counts One, Seven,

and Eight must be affirmed.DATED this pt day ofFebruary 2012

41

DILL DILL CARR STONBRAKER& HUTCHINGS, P.C.

hMPatrick D. T o ~ l e y , #15273Thomas M. Dunn, #9395Attorney for Defendant


50/50

CERTIFICATE OF MAILING

I hereby certify that on this 1st day of February 2012, I served the foregoingPLEADING CAPTION upon the other party herein by depositing a true copy thereofin the United States mail, postage prepaid, addressed to the following:Kenneth R. Buck, District AttorneyMichael J. Rourke, Asst. District AttorneyAnthea L. Carrasco, Dep. District AttorneyPO Box 1167Greeley, CO 80632970-356-4010970-352-8023 [email protected]@co.weld.co.us

Michele Overton

answer - people of colorado vs. james broderick

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