“The right to Petition the Government is part of a heritage from the earliest times and represents a cornerstone of our national liberty. It is long-recognized as implicit in ‘the very idea of a government, republican in form‘.”
~United States Postal Service v Hustler Magazine, Inc., 630 F Supp 867, 03/11/86
“Now guaranteed by the First Amendment, the Right to Petition ‘is cut from the same cloth as the other guarantees of that amendment, and is an assurance of a particular Freedom of Expression‘.”
~Hustler Magazine, Inc., supra, quoting McDonald v Smith, 472 US 479, 53 USLW 4789, 4790, 86 L Ed 430, 65 S Ct 2787 (1985)
The following blog entry focuses on the Mens rea or “Culpable Mental State” as applied in case 10CR3690/11SA212 as well of the Constitutionality of the Complaint and Information which shall be addressed at the beginning of this this blog (rhetoric).
From Cornell Law: “Criminal intent. The state of mind indicating culpability which is required by statute as an element of a crime.” See Staples v United States, 511 US 600 (1994). However, for strict liability crimes, state of mind as to at least one element of the crime is irrelevant.”
From Nolo’s Plain-English Law Dictionary: “The mental component of criminal liability. To be guilty of most crimes, a defendant must have committed the criminal act in a certain mental state (the mens rea). The mens rea of robbery, for example, is the intent to permanently deprive the owner of his property.”
The following is the Unconstitutional Complaint and Information filed against Billy bob Bramscher and given that the overbreadth is substantial as applied, Bramscher has standing to raise a First Amendment claim (see Broadrick v Oklahoma, 413 US 601, 37 L Ed 2d 830, 93 S Ct 2908 (1973):
COLORADO RULES OF CRIMINAL PROCEDURE CHAPTER 29 COLORADO RULES OF CRIMINAL PROCEDURE FOR ALL COURTS OF RECORD IN COLORADO III. INDICTMENT AND INFORMATION
Rule 7. The Indictment and the Information.
(b) The Information.
(1) An information shall be a written statement, signed by the prosecutor and filed in the court having jurisdiction over the offense charged, alleging that a person committed the criminal offense described therein.
(2) Requisites of the Information. The information shall be deemed technically sufficient and correct if it can be understood therefrom:
(I) That it is presented by the person authorized by law to prosecute the offense;
(II) That the defendant is identified therein, either by name or by the defendant’s patterned chemical structure of genetic information, or described as a person whose name is unknown to the informant;
(III) That the offense was committed within the jurisdiction of the court, or is triable therein;
(IV) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.
TITLE 18. CRIMINAL CODE ARTICLE 8. OFFENSES – GOVERNMENTAL OPERATIONS PART 6. OFFENSES RELATING TO JUDICIAL AND OTHER PROCEEDINGS C.R.S. 18-8-615 (2012)
18-8-615. Retaliation against a judge
(1) (a) An individual commits retaliation against a judge if the individual makes a credible threat, as defined in section 18-3-602 (2) (b), or commits an act of harassment, as defined in section 18-9-111 (1), or an act of harm or injury upon a person or property as retaliation or retribution against a judge, which action is directed against or committed upon:
(I) A judge who has served or is serving in a legal matter assigned to the judge involving the individual or a person on whose behalf the individual is acting;
(II) A member of the judge’s family;
(III) A person in close relationship to the judge; or
(IV) A person residing in the same household with the judge.
(b) An individual commits retaliation against a judge by means of a credible threat as described in paragraph
(a) of this subsection
(1) if the individual knowingly makes the credible threat:
(I) Directly to the judge; or
(II) To another person:
(A) If the individual intended that the communication would be relayed to the judge; or
(B) If the other person is required by statute or ethical rule to report the communication to the judge.
(2) Retaliation against a judge is a class 4 felony.
(3) As used in this section, unless the context otherwise requires, “judge” means any justice of the supreme court, judge of the court of appeals, district court judge, juvenile court judge, probate court judge, water court judge, county court judge, district court magistrate, county court magistrate, municipal judge, administrative law judge, or unemployment insurance hearing officer.
TITLE 18. CRIMINAL CODE ARTICLE 3. OFFENSES AGAINST THE PERSON PART 6. STALKING C.R.S. 18-3-602 (2012) 18-3-602. Stalking – penalty – definitions – Vonnie’s law
(2)(b) “Credible threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.
On December 23, 2010, County Court, Adams County, Colorado, Case No. 10CR3690, Westminster Police Department Case Report #2010-20293, affiant Richard Infranca #897 under oath did accuse Billy bob Bramscher of “Retaliation against a Judge” as that offense is described in C.R.S. 18-8-615(1)(b) requiring a “credible threat” and Magistrate Brian Bowen found “probable cause” for the arrest of [Billy bob Bramscher]:
GONZO: The Arrest Warrant proclaims Billy bob Bramscher did commit the crime of Retaliation Against a Judge, as that crime is defined by C.R.S. 18-18-615!!! There is not statute on the books in Colorado 18-18-615!!! WTF!!!
NOTE: The Arrest Warrant only states “C.R.S. 18-18-615” lacking specificity (nature of the cause), mens rea and was signed by a Magistrate (not a judge as required)!!!
COLORADO RULES OF CRIMINAL PROCEDURE CHAPTER 29 COLORADO RULES OF CRIMINAL PROCEDURE FOR ALL COURTS OF RECORD IN COLORADO II. INITIATION OF PRELIMINARY FELONY PROCEEDINGS
Rule 4. Warrant or Summons Upon Felony Complaint.
(b)(1) Warrant. The arrest warrant shall be a written order issued by a judge of a court of record directed to any peace officer and shall:
(I) State the defendant’s name or if that is unknown, any name or description by which he can be identified with reasonable certainty;
(II) Command that the defendant be arrested and brought without unnecessary delay before the nearest available judge of a county or district court;
(III) Identify the nature of the offense;
(IV) Have endorsed upon it the amount of bail if the offense is bailable; and
(V) Be signed by the issuing county judge.
Please know that I have never gone by “William Paul Votel” at any moment. I have always been proud of who I am!!! Especially since my legal surname is back to my birth, William Robert Bramscher yet you call me Billy bob!
Now, if you noticed the bond amount on the arrest warrant is $75,000 USD and the standard bond for an F4 (“F” is Felony) is $5,000 USD and the following email proves my Fourteenth Amendment rights were violated and not only did Detective Richard Infranca and Magistrate Brian Bowen actively participate, the ENTIRE Westminster Police Department was aware that Billy bob Bramshcer’s Eight Amendment Constitutional Rights and Civil Rights were being violated:
NOTE: The definition of “deviate” is to (1) “to stray from a standard, principle, or topic; and, (2) to depart from an established course or norm”.
Bottom-line is that I was denied equal protection of the laws as defined by the Fourteenth Amendment which reads, Section 1:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
I also want to be sure to reminded the reader that on October 13, 2011, my 263rd in confinment at Adams County Detention Facility, after Public Defender Cathlin Matson failed to challenge the Complaint and Information quitting my case and after Alternative Defense Counsel Richard Hernandez failed to challenge the Complaint and Information also quitting my case, that Alternative Defense Counsel Fran Simonet, before she also quit my case, did file the following motion challenging the Complaint and Information:
“ACT OF HARASSMENT C.R.S. 18-8-615“
The Complaint and Information clearly states “Act of Harassment” causing a fatal error. Colorado Supreme case People v Hickman, No. 98SA29 (1999) in re C.R.S. 18-8-706, Retaliation Against A Witness or Victim, did “conclude that the term ‘act of harassment’ is overbroad and strike it from the statute.”
In the 1992 amendments, the General Assembly added the terms “threat” and “act of harassment,” and deleted the word “intentionally” along with the phrase “for giving testimony in any official proceeding.” See ch. 73, sec. 20, § 18-8-706, 1992 Colo. Sess. Laws 396, 405. Because the added terms were not defined in the statute or clearly limited, the trial court reasoned that the statute could prohibit communications that were perceived as a “threat” or as “harassment,” but were nonetheless constitutionally protected by the First Amendment. See U.S. Const. amend. I.
“Act of Harassment” Is Unconstitutionally Overbroad C.R.S. 18-8-615:
“We agree with the trial court that “act of harassment” as used in section 18-8-706 encompasses a substantial amount of constitutionally protected communications. Following the standard for overbreadth we outline in section II(B)(1), supra, we hold that section 18-8-706 substantially burdens protected communications and that the phrase cannot be sufficiently limited. Therefore, we strike this prohibition from the statute.” Hickman, supra.
“Act of Harassment” Encompasses Protected Communications C.R.S. 18-8-615:
“We turn to the definition of ‘act of harassment’ under the statute. The trial court found that ‘act of harassment’ was undefined by the statute, and that the phrase encompasses speech and conduct that are constitutionally protected. We agree.
We look to the plain meaning of the terms in order to determine whether they encompass protected communications. The term “harassment” is synonymous with “vex,” “trouble,” or “annoy.” See Webster’s, supra, at 1031; see also Black’s Law Dictionary 721 (7th ed. 1999) (defining harassment as conduct that is directed at a specific person that “annoys, alarms, or causes substantial emotional distress and serves no legitimate purpose”). This broad meaning of the term applies to a wide range of communications and conduct, many of which are protected by the First Amendment. For example, forecasting a change in weather, engaging in a political discussion, or discouraging a witness from lying on the stand might “vex,” “trouble,” or “annoy” a person protected by section 18-8-706, but such communications are protected by the First Amendment. See, e.g., People v Smith, 862 P.2d 939, 942 (Colo. 1993) (finding that subsection of harassment statute was “anything but narrowly drawn” and concluding that statute covered protected speech); Bolles v People, 189 Colo. 394, 398, 541 P.2d 80, 83 (1975) (finding that forecasting the weather or predicting political trends, for instance, could “alarm” a person, but are still protected speech). Thus, we conclude that “act of harassment” encompasses protected communications, Hickman, supra.
ADDITIONAL READING: http://www.hastingslawjournal.org/wpcontent/uploads/2013/04/Caplan_22.pdf
Test for Substantial Overbreadth C.R.S. 18-8-615:
Having determined that “act of harassment” encompasses constitutionally protected communications, we turn to the question of whether this overbreadth is substantial. Because no limiting construction can narrow the statute to permissible applications, we conclude that the phrase “act of harassment” in section 18-8-706 is substantially overbroad, and we strike it from the statute.
Our cases consistently invalidate as substantially overbroad statutes that prohibit speech made with the intent of “harassing,” “annoying,” or “alarming” others. In Smith, for example, we invalidated a subsection of the harassment statute that prohibited “all repeated communications containing ‘offensively coarse language’ if made with the intent to annoy, harass, or alarm” because of the amount of protected speech covered by the statute. See 862 P.2d at 942. In Bolles, we invalidated a statute that prohibited certain communications made with the intent to “harass, annoy, or alarm another person,” because a significant amount of the speech covered by the statute was protected speech. See 189 Colo. at 399, 541 P.2d at 84.
Similarly, the phrase “act of harassment” in section 18-8-706 encompasses a substantial amount of protected communications. For example, if a defendant calls a witness a liar or proposes to turn the witness in for perjury as retribution for the witness’s testimony, these communications may “vex,” “trouble,” or “annoy” the witness, and would thus be prosecutable under the statute. Alternatively, if a union leader tells a manager that workers will strike if the manager gives false testimony concerning the union’s members in a labor dispute, this could certainly “trouble” or “annoy” the manager and be prosecuted under the statute. However, these communications are protected speech, even if they were intended to harass a person protected by the statute. These and other forms of protected speech that could be prosecuted under the statute as acts of harassment amount to more than a “tiny fraction” of the communications prohibited under section 18-8-706.
Even though the statute requires that an act of harassment be directed at a person protected by the statute and be made for retributive or retaliatory purposes, the statute’s broad scope is not adequately limited by these requirements. A considerable amount of protected speech is encompassed by prohibiting acts of harassment directed towards persons protected by the statute for retributive or retaliatory purposes. As our examples above demonstrate, retaliatory communications designed to “harass” a person protected by the statute may nonetheless be protected speech. Thus, the requirements that the act of harassment be directed at a person protected by the statute for retributive or retaliatory purposes do not limit the statute to permissible applications.
We conclude that the proscription of an “act of harassment” under section 18-8-706 includes a substantial amount of protected communications and that we cannot supply a limiting construction for the statute. We also conclude that the statue does not sufficiently limit the scope of protected communications to which it applies. Thus, we hold that the phrase “act of harassment” in the statute is unconstitutionally overbroad and strike it from the statute.
People v McIntier, 134 P3d 467 (Colo App 2005): http://www.cobar.org/opinions/opinion.cfm?opinionid=5398&courtid=1
Mens rea: KNOWING V SPECIFIC INTENT
Billy bob Bramscher contends that the information charging him with retaliation against a Judge was insufficient to invoke the jurisdiction of the trial court because it omitted the requisite specific intent mens rea for the offense.
The Complaint and Information clearly states “Knowingly” as the Mens rea causing a fatal error. Hickman, supra, in re C.R.S. 18-8-706, Retaliation Against A Witness or Victim held “that the statute requires, as a culpable mental state, that the defendant act intentionally and that this statute is a specific intent offense”.
Both the terms “Retribution” and “Retaliation” by definition require SPECIFIC INTENTIONAL conduct. See 18-1-503(4); 18-1-501(5); citing Adams County District Court No 02CR3167, People v McIntier, 134 P3d 467 (Colo App 2005) Supreme Court of Colorado No 05SC203 People v Manzo, 10/02/06; People v Hickman, 988 P2d 628, 644-45 (Colo 1999); see also, United States v Houlihan, 937 F Supp 75,76 (D Mass 1996) in re “intent to retaliate” in 18 USCS 1513 requires proof either of “sole or abiding purpose” or “purpose mixed in with other purposes”); see also Welhsler, The Challenge of a Model Penal Code, 65 Harv L Rev 1097 (1952).
In Hickman, supra, the Colorado Supreme Court held that: “[B]oth the terms “retribution” and “retaliation” by definition require intentional conduct. A person can act in a retributive or retaliatory fashion only if she has a conscious objective to do so. Thus, the statute by the plain meaning of its terms requires the defendant to have as her conscious objective . . . the specific intent to retaliate or to seek retribution against a person protected by the statute because of that person’s relationship to a criminal proceeding. Because the statute requires that the defendant act with a specifically defined conscious objective, we infer the culpable mental state of “intentional” even though the legislature deleted the term from the statute” (Hickman, supra, 988 P.2d at 644-45).
REQUIREMENT THAT PROHIBITED THREATS OR CONDUCT BE MADE FOR RETRIBUTIVE OR RETALIATORY PURPOSES
The trial court concluded that the General Assembly contributed to the statute’s overbreadth and vagueness by deleting the word “intentionally” and the phrase “for giving testimony in any official proceeding” from the statute. The trial court reasoned that the 1992 amendments removed the specific intent requirement from the statute. The trial court explained that this lack of a culpability requirement “cast doubt on exactly what the legislature wanted the statute to prohibit,” and that the deletions also “did not help narrow” the sweep of the statute. We disagree with the trial court and hold that the statute requires, as a culpable mental state, that the defendant act intentionally and that this statute is a specific intent offense.
To determine whether this offense is a specific intent crime, we refer to the Criminal Code for guidance. When a criminal statute includes the word “intentionally,” that particular offense is “declared to be a specific intent crime.” § 18-1-501(5), 6 C.R.S. (1999). “A person acts ‘intentionally’ or ‘with intent’ when his conscious objective is to cause the result proscribed by the defining offense.” Id.The Criminal Code also states that when a criminal statute does not expressly designate a culpable mental state, but the proscribed conduct “necessarily involves” a culpable mental state, a culpable mental state may be required for the commission of the offense or some elements of the offense. § 18-1-503(2); see also, People v. Gross, 830 P2d 933, 940 (Colo. 1992) (finding that because a crime ordinarily requires an act and simultaneously an accompanying culpable mental state, a court should not necessarily construe legislative silence on the element of intent in a criminal statute as an indication that no culpable mental state is required).
Even though the legislature deleted the word “intentionally” from the statute, the statute nonetheless requires intentional conduct. In the amended statute, the prohibited threat or conduct must still be made “as retaliation or retribution.” As we reasoned in section II(B)(1)(c) above, both the terms “retribution” and “retaliation” by definition require intentional conduct. A person can act in a retributive or retaliatory fashion only if she has a conscious objective to do so. Thus, the statute by the plain meaning of its terms requires the defendant to have as her conscious objective the intent to inflict harm on a specific person for a specific reason — that is, the specific intent to retaliate or to seek retribution against a person protected by the statute because of that person’s relationship to a criminal proceeding. Because the statute requires that the defendant act with a specifically defined conscious objective, we infer the culpable mental state of “intentional” even though the legislature deleted the term from the statute. Thus, we hold that section 18-8-706 is a specific intent offense.
C.R.S. 18-8-615 is Unconstitutionally overbroad as applied to 10CR3690/11SA212 & Billy Bob Bramscher
Criminal statutes, to avoid violation of the Fifth and Sixth Amendments USC, must be sufficiently definite to apprise the layman of ordinary intelligence who may be subject thereto, whether such statutes apply, and, if so, what things must be done to comply with their terms (see United States v Reese, 92 US 214, 23 L Ed 563, 01/10/1876; United States v Brewer, 139 US 278, 35 L Ed 190, 11 S Ct 538, 03/23/1891; Winters v New York, 333 US 507, 92 L Ed 840, 68 S Ct 665, 03/29/48).
Criminal Statutes restricting First Amendment freedoms must comply with stricter requirements of definiteness than other criminal statutes (see Winters, supra; Stromberg v California, 283 US 359, 75 L Ed 1117, 51 S Ct 532, 73 ALR 1484, 05/18/31; Thomas v Collins, 323 US 516, 89 L Ed 430, 65 S Ct 315, 01/29/45; concurring opinion of Mr Justice Douglas in United States v Rumely, 345 US 41, 97 L Ed 770, 73 S Ct 543, 03/09/53)). A statute is unconstitutional over-broad if it includes within its proscriptions a substantial amount of constitutionally protected speech (see New York v Ferber, 458 US 747, 769, 73 L Ed 2d 1113, 102 S Ct 3348 (1982); People v Baer, 973 P2d 1225, 1231, 01/25/99; Broadrick, supra; People v Ryan, 806 P2d 935, 940 (Colo 1991)) and 10CR3690/11SA212 in re C.R.S. 18-8-615 is defined on the Complaint and Information only as “An Act of Harassment” susceptible to multiple common sense interpretations substantially over-broad in violation of Due Process and Equal Protection.
C.R.S. 18-8-615 is Unconstitutionally vague as applied to 10CR3690/11SA212 & Billy Bob Bramscher
“Vague laws are unconstitutional because they offend due process” (Baer, supra at 1233) because “A vague law offends due process because it fails to give fair notice of the conduct prohibited and does not supply adequate standards to prevent arbitrary and discriminatory enforcement”, see Id.
Billy bob Bramscher argues the information charging Bramscher was constitutionally insufficient whereas Bramscher had the substantive and procedural “right to be informed of the nature and cause of accusation” and this right cannot be denied” (see Grimsley v United States (1931, CA5 Fla) 50 F2d 509; People v Joseph, 920 P2d 580 (Colo App 1995) in re “The information must answer the questions of ‘who, what, where, how’) and a defendant charged with a crime must be brought into court on a Complaint and Information made or found according to the requirements of law (see CrimP7(b)(2); C.R.S. 16-5-202(3), 2005; Bustamante v People, 136 Colo 362, 317 P2d 885 (1997); People v Melillo, 25 P3d 769, 777 (Colo 2001) in re requirement that the information identify the essential elements of the crime, Id at 778) and “Constitutional requirements as to [Complaint and Information] cannot be obviated by statue” (Asgill v United States (1932, CA4 Va) 60 F2d 780).
“Criminal Statutes are to be strictly construed in favor of the accused” (Bailey v People, 200 Colo 549, 09/15/80) and “The power to define criminal conduct and to establish the legal components of criminal liability is vested in the General Assembly” (Copeland v People, 2 P3d 1283, 1286 (Colo 2000)); “Legislature is presumed to be aware of judicial precedent in an area of law when it legislates in that area” (Vaughan v McMinn, 945 P2d 404, 409 (Colo 1997) in re C.R.S. 18-8-615, 18-9-111 et seq; see also House Bill 10-1233. “In construing a statute, courts strive to give effect to the intent of the General Assembly and adopt the statutory construction that best effectuates the purposes of the Legislative scheme” (Spahamer v Gullette, 113 P3d 158, 162 (Colo 2005)). “The court looks first to the plain language of the statue. However, if statutory language is ambiguous, the court may rely on legislature history to discern the General Assembly’s intent” (Schupper v Smith, 128 323, 325 (Colo App 2005)); see also § 2-4-203(1)(c), C.R.S. 2007.
It is beyond obvious that the legislature, with negligence, has not corrected C.R.S. 18-8-615 in re Mens rea to “specific intent”. In the Annotation section of 18-8-706 it is written into law, “This statute is a specific intent offense. People v. Hickman, 988 P.2d 628 (Colo. 1999); People v. McIntier, 134 P.3d 467 (Colo. App. 2005).”
McIntier, supra, was an Adams District Court Case No. 02CR3 and you would think that the Judges/Magistrates within this County would be well versed on their own court case(s) resulting in the correct applications of laws as set-forth by the Colorado Supreme Court.
“Knowingly” was a fatal error and “Act of Harassment” was a fatal error yet I did spend 399/400 days in county jail as innocent as the day I was found NOT GUILTY.
As I have written previously, “I am the victim of a ‘War of Attrition’ and truly thankful I was well versed on The Art of War by Sun Tzu.
01/30/2012: Trial started on January 30, 2012 ending on February 6, 2012 and as my own lawyer (pro se) I was found “NOT GUILTY” by a jury of my peers. At this time, I was charged with C.R.S. 18-8-615 via 18-9-111(1)(e) and the mens rea was changed to “Specific Intent” instead of “Knowingly” as incorrectly alleged for over thirteen (13) months.
In my jury trial, the Defendant’s Theory of Defense, provided to the Jury:
“It is the Defendant’s theory of defense that the prosecution of this case was based upon retaliation by the City of Westminster. The Defendant contends that he was exercising his First Amendment rights of free speech and to redress grievances he had with the City of Westminster and that this prosecution is based on bad-faith investigation, legal harassment and retaliation against him Defendant for exercising his First Amendment Rights.”
I am Billy bob Bramscher and I am a victim of bullying, bad-faith investigation, vindictive prosecution, malicious prosecution, First Amendment Retaliation and Civil Rights violations by the City of Westminster, Westminster Police Department, Westminster Municipal Court, Adams County/District Court, Adams County District Attorney, Colorado Public Defender/Alternative Defense Counsel.
~Billy bob Bramscher