Probable Cause – Information Fails to State an Offense

IMG_2644

 

PROBABLE CAUSE:  “The requirement, found in the Fourth Amendment to the Constitution, that must usually be met before police make an arrest, conduct a search or receive a warrant.  Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for arrest) and that evidence of the crime is present in the place to be searched (for search).”

http://www.law.cornell.edu/wex/probable_cause

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.

http://www.lexisnexis.com/hottopics/colorado/

Case Law:

“But if information fails to charge crime, court acquires no jurisdiction.”  People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980).

“A specific crime must be alleged in the information.”  Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967); Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968).

“Rather, information is sufficient if it advises a defendant of the offense with which he is charged.”  Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971); People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973); People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973); People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973); People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980).

“Dismissal if defendant not fairly and reasonably informed of accusations. There must be a variance between the information and the proof to be offered constituting such an imperfection or inaccuracy that the defendant was not fairly and reasonably informed of the nature and cause of the accusations against him in order that a motion of dismissal be granted.”  People v. Allen, 167 Colo. 158, 446 P.2d 223 (1968).

“Sufficiency of information is matter of jurisdiction.”  People v. Garner, 187 Colo. 294, 530 P.2d 946 (1975).

“But failure to allege where offense committed makes information insufficient. When an information fails to allege where the offense was committed, and thus, that it occurred within the jurisdiction of the court, it fails to state facts sufficient to confer jurisdiction upon the district court of the county in which it is filed to try the defendant.”  People v. Steiner, 640 P.2d 250 (Colo. App. 1981).

DISCUSSION

In criminal cases the accused has the constitutional right, upon demand, to be informed of the nature and cause of the accusation (see Fehringer v. People, 59 Colo 3, January 1915 in re “In every criminal prosecution the accused possesses the constitutional right to demand the nature and cause of the accusation and it is elementary that in every criminal prosecution the pleading charging the offense must set fort sufficient facts adequately identifying the transaction.”; see also Howe v. People, 178 Colo 248, 469 P2d 1040 (1972) in re “An information is sufficient to apprise a defendant of the charge he faces if it sets forth the essential elements to be included in an information charging the crime.”)

The defendant [Billy bob Bramscher], 10CR3690, petitioned the court that the arrest warrant and information failed to charge a crime and accordingly the court acquired no jurisdiction (see Colo R Crim P 7(b)(2); Colo Rev State 16-5-202(3) 2011).  Furthermore, defendant asserted under CRS 18-1-407 Affirmative Defenses (1) First Amendment Retaliation (see Worrell v. Henry, 219 F3d 1197, 1212 (10 Cir 2000), and; (2) Political Persecustion (see Hayrapetyan v. Mukasey, 534 F3d 1330, 1337 (10 Cir 2008) in re “Official retaliation against one who threatens to expose governmental corruption may, in certain circumstances, amount to political persecution warranting relief.”)

The defendant was charged with one count – Retaliation Against a Judge, CRS 18-8-615, 2010.  “A statute which proscribes conduct which can be prohibited under the police power of the state is overbroad if it also purports to proscribe conduct which cannot validly be prohibited under that power” (see People v. Sequin, 199 Colo 381, 384, 609 P2d 622, 624 (1980)).  Additionally, “A statute is facially overbroad if, in addition to proscribing conduct that is not constitutional protected, its proscriptions sweep in a substantial amount of activity that is constitutionally protected” (see People v. Pahl, 169 P3d 169, 2006 Colo App Lexis 1379 (Colo App No o1CA2020, Aug. 24, 2006)).

The defendant argues the phrase “Retaliation Against a Judge” as the statute was applied to 10CR3690, is unconstitutionally vague and unconstitutionally overbroad on its face (see People v. Hickman, 988 P2d 628, 11/9/1999 in re “that the phrase ‘act of harassment’ in the statute [CRS 18-8-706] is unconstitutionally over-broad and strike it from the statute,” see Id at 643).

Under CRS 18-1-501(6), the defendant, was charged as having “knowingly” committed “Retaliation Against  a Judge” as the essential culpable mental state.  The defendant did remind the court of Adams County in re Adams District Court case No 02CR3167 People v. McIntier, 2005 Colo App Lexis 1951 (Colo App 2005) citing Colorado Supreme Court People v. Hickman in re “A person can act in a retributive or retaliatory fasion only if he/she has a conscious objective to do.  Thus, the statute by the plain meaning of its terms requires the defendant to have as his/her conscious objective…the ‘specific intent’ (see CRS 18-1-501(5)).

The above established, the information 10CR3690 fails to charge a crime, and the court acquires no jurisdiction (see Colorado Supreme Court People v. Moore, appeal from the District court of Adams County, 1980 Colo Lexis 719 in re “an information is sufficient if it advises the defendant of the charge he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense.”) and, an “Information that fails to charge an essential element of an offense is substantively defective” (see People v. Williams, 1999 Colo Lexis 620).

The defendant petitions the phrase “Retaliation Against a Judge” does not set forth the offense without uncertainty or ambiguity (see Hamling v United States, 418 US 87, 117, 41 L Ed 2d 590, 94 S Ct 2887 (1974); United States v. Carll, 105 US 611, 612, 26 L Ed 1135 (1882); People v. Bowen, 658 P2d 269, 270 (Colo 1983) in re “However, an information that fails to charge an essential element of an offense is defective”; Bustamante v. People, 136 Colo 362, 365, 317 P2d 885 (1957) in re “The sufficiency of an information is a matter of jurisdiction”).

Here are a few motions I submitted:

(June of 2011)

IMG_2651

(August 2011)

IMG_2649

 

IMG_2650

 

IMG_2652

***Please note number two (2) above and a request for a Bill of Particulars

BILL OF PARTICULARS

Case Law:

The purpose of a bill of particulars is to enable the defendant to properly prepare his defense in cases where the indictment, although sufficient to advise the defendant of the charges raised against him, is nonetheless so indefinite in its statement of a particular charge that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979).

A bill of particulars calls for an exposition of the facts that the prosecution intends to prove and limits the proof at trial to those areas described in the bill. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979).

Considerations in addressing motion for bill. When addressing motions requesting bills of particulars, the trial judge should consider whether the requested information is necessary for the defendant to prepare his defense and to avoid prejudicial surprise. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979).

Bill mandatory where crime charged in words of statute. Where the crime of theft is charged in the words of the statute, an order for a bill of particulars is mandatory upon the defendant’s request. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979).

DISCUSSION

The “Sixth Amendment Guarantee that accused in criminal proceeding shall enjoy right to have assistance of counsel means effective assistance, as distinguished from bad faith, sham, mere pretense or want of opportunity for conference and preparation” (see United States v Davis (1971, CA10 Okla) 436 F2d 679).  When Defense counsel’s representation is so blatantly incompetent as to render entire proceedings fundamentally unfair, due process clause itself is violated.  Sixth Amendment’s provision guaranteeing accused’s right to assistance of counsel for his defense is made obligatory upon states by Fourteenth Amendment (see Gideon v Wainwright (1963) 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 23 Ohio Ops 2d 258, 93 ALR 2d 733) and “[The Assistance of Counsel] is one of the safe-guards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty…. The Sixth Amendment stands a constant admonition that if the constitutional safeguards it provides be lost, justice will ‘not be done’,” Id at 344.

The United States and Colorado Constitutions extend an indigent criminal defendant the right to representation (see US Const Amend(s) VI, XIV; Colo Const Art II Clause 16).  Citing People v Bergerud, 223 P3d 686, 2010 Colo Lexis 4 Case No 08SC936, 01/11/2010, “Unlike some sixth amendment violations, the complete denial of counsel will not be examined for prejudice or harmlessness.  The Complete absence of counsel is a structural error.”

As reported in this blog previously under “Complete Deprivation of Counsel” in re a public defender and two alternative defense counsel assigned to my case I want to share some documents that prove I was never getting any legal help from Cathlin M. Matson, No 39320 (public defender), Richard A. Hernandez, No 30627 (alternative defense counsel) and Fran E. Simonet, No 32649 (alternative defense counsel).

In January of 2012, only days before my trial, I again filed a motion (pro se) for Bill of Particulars and this is Judge Popovich’s response:

IMG_2653

 

IMG_2654

 

IMG_2655

 

***In re Order Jan 10, 2012, “The court Denies Defendant’s Motion for a Bill of Particulars” Judge Popovich, with specific intent, committed abuse of discretion in violation of Billy bob Bramscher’s substantive and procedural rights.

CONCLUSION

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.

~Aloha

~Billy bob Bramscher

~BbB~

https://www.facebook.com/BlueDakini

 

Advertisements

One thought on “Probable Cause – Information Fails to State an Offense

  1. Pingback: Jeff Sessions Benedict Arnold!!! | Lonesome Lozer

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s