Unconstitutional, Vague and Overbroad

NOTE:  After I was forced to become my own attorney after a public defender quit followed by two alternative defense counsel, well, I filed a FIFTY (50) page motion.  You are about to read pages 27 – 34.  I will be starting with page 34 in re the constantly changing charge against me.

***If you remember from my previous post “Probable Cause – Information Fails to State an Offense”, Judge Popovich noted at the end of his response to my motions, “Defendant asserts that on October 21, 2011 the court amended the Information/Complaint; however, the court record does not reflect that subject amendment.”  [See foot note]

CRS 18-8-615 AMENDMENT – 10/21/11

[Pg 34]  On 12/01/10 (20802) Maimone [Westminster Police] creates WPD CRN 2010-20293 listing charge as 18-9-111(1)(e).  On 12/23/10 (20897) Richard Infranca, affiant, swore defendant committed 18-8-615(1)(b) in re “True Threat/Credible Threat”.  Also on 12/23/10 Adams County DA Don Quick and Stacy Moore file Complaint and Information against Billy bob Bramscher unconstitutionally listing offense only as “An Act of Harassment” in violation of 18-8-615.

In addition to the petition and claim listed previously and that it is established defendants substantial and procedural rights in re Due Process and Equal Protection have been violated in re Complaint and Information, defendant petitions substantial and procedural Due Process and Equal Protection claims resulting from events on 10/21/11 when Chief Judge Phelps committed “abuse of discretion” (5amJ2dA&E§744) by his active role in the presentation of the prosecution’s case and the amendment as of course (41amJ1stPL§289) encouraging and participating in amendment of substance and jurisdiction whereas 18-8-615 amedned to be defined in 18-9-111(1)(e) attempting to change jurisdiction to 18-9-111(3) whereas 18-9-111(3) ONLY provides jurisdiction for 18-9-111(1)(e).  Prior to amendment the court lacked jurisdiction over Bramscher as matter of rule because the information failed to charge essential element(s) of offense 18-8-615 (see People v Bowen, 658 P2d 269 (Colo 1983); Bustamante v District Court, 138 Colo 97, 329 P2d 1013 (1958)).

***The Transcript of this hearing proves it all.  Around Christmas I shall buy a scanner and proved a copy of all transcripts I have that prove absolute that all the judges in my case acted with purposeful vengeance against me.

CRS 18-9-111(1)(e) is UNCONSTITIONAL, VAGUE & OVERBROAD AS

APPLIED TO 10CR3690 & BILLY bob BRAMSCHER

[Pg 27 – 33]  C.R.S. 18-9-111(1)(e) requires the recipient of the communication is the victim where statute is absent language “directed to” as required in a “True Threat/Credible Threat” and/or “An Act of Harm or Injury”, CRS 18-8-615 (compare to 18-8706(1) in re People v McIntier, 134 P3d 467, 473 12/01/2005; People v Hickman, supra, 988 P2d at 636, 640).  Defendant notes that neither case McInter or Hickman invoked 18-9-111 as an “or” option (“or” is defined in the Merriam-Webster Dictionary New Edition (2004) pg 508 “used as a function word to indicate an alternative” and Ballentine’s Law Dictionary, 3rd Edition, defines “alternative” as “The choice of one of two things, courses, or propositins which is excluded by the choice of the other” also referred to as “Disjunctive allegations” (27amJ1stIndict§127).

Citing People v Weeks, 197 Colo 175, 591 P2d 91 (1979), the essential elements for offense 18-9-111(1)(e) are an “importunate speaker” (e.g. allegedly “Billy bob”) and an unwilling listener (e.g. Rosanna Minjarez) and “The gravamen of the offense (18-9-111(1)(e)) is the thrusting of an offensive and unwanted communication on one (e.g. Rosanna Minjarez) who is unable to ignore it (quoting Bolles v People, supra; Ginsburg v United States, 383 US 463, 86 S Ct 942, 16 L Ed 2d 31 (1966)) and “A ringing telephone is an imperative which, in the minds of many, must be obeyed with a prompt answer…once the telephone {197 Colo 182} has been answered, the VICTIM (e.g. Rosanna Minjarez) is at the mercy of the caller until the call can be terminated by hanging up.”

Therefore, John Stipech constitutionally cannot be a victim of 18-8-615 via 18-9-111(1)(e) by examining the language of the statue, the words and phrases therein and given effect according to their plain and ordinary meaning.

When a court construes a statute, it should read and consider the statute as a whole and interpret it in a manner giving consistent, harmonious and sensible effect to all its parts (see People v Andrews, 871 P2d 1199, 1201 (Colo 1994)).  In doing so, a court should not interpret a statute in ways that defeat the legislature’s obvious intent, or render part of the statute either meaningless or absurd (see Reg’l Transp Dist v Lopez, 916 P2d 1187, 1192 (Colo 1996)).  The language in 18-9111 requires an “offender” and the direct recipient is the “victim” (“Directed at” v “Directed to”).

The defendant petitions CRS 18-9-111(1)(e) is unconstitutional as applied to him because not only was his activity protected, e.g. First Amendment Right to Petition”, the call in question was made to City Hall [and defendant never attempted to speak or spoke to John Stipech via telephone or any other means].

Citing People v Weeks, supra, “Although each case ultimately must defend on its own specific facts, some general principles have emerged.  A state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content (see Kovacs v Cooper, supra; Cox v Louisiana, 379 US 356, 554, 13 L Ed 2d 471, 85 S Ct 453 (1965); Adderly v Florida, 385 US 39, 17 L Ed 2d 149, 87 S Ct 242 (1966)).  But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First {591 P2d 96} Amendment strictly limits its powers (see Police Dept of Chicago v Mosely, 408 US 92, 33 L Ed 2d 212, 92 S Ct 2286 (1972); Fowler v Rhode Island, 345 US 67, 97 L Ed 828, 73 S Ct526 (1953); Kovacs v Cooper, supra at 97 (Jackson, J. concurring).

Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home (see Rowan v Post Office Dept, 397 US 728, 25 L Ed 2d 736, 90 S Ct 1484 (1970)), or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure…As Mr Justice Harlan cautioned:  “The ability of government, consonate with the constitution, to shut off discourse solely to protect others from hearing it is…dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.  Any broader view of this authority would effectively empower a majority to silent dissidents simply as a matter of personal predilections.”  (see Cohen v California, 403 US, at 21, 29 L Ed 2d 284, 91 S Ct 1780 (1971); Erznoznik v City of Jacksonville, 422 US 205, 209-210, 95 S Ct 2268, 45 L Ed 2d 125 (1975)).

Citing FCC v Pacifica Foundation, 438 US 726, 57 L Ed 2d 1073, 98 S Ct 3026 (1978), “The fact that society may find speech offensive is not sufficient reason for suppressing it.  Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.  {485 US 56} For it is a central tenet of the First Amendment that the government must remain neutral in the market place of ideas” and citing Street v New York, supra, “It is firmly settled that…the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”

VAGUENESS & OVERBREADTH

Defendant requests court to apply the same standards pursuant argument in re 18-8-615 for 18-9-111(1)(e) whereas the same ambiguous language exists in the statute including the words “harassment” if, with intent to “Harass”, “Annoy” or “Alarm” susceptible to multiple common sense interpretations infringing on constitutionally protected speech (see New York v Ferber, supra; People v Baer, supra; Broadrick v Oklahoma, supra; People v Ryan, supra) as applied to 10CR3690 and Billy bob Bramscher in violation of substantive and procedural Due Process as well as Equal Protection.

Defendant argues that in order to be found guilty of 18-9-111(1)(e), citing the jury instructions from People v Carey, 198 P3d 1223, Colo App Lexis 623, Colo App 2008, the People [prosecution] must prove the following elements of Telephone Harassment:  1) That Billy bob Bramscher, (2) In the state of Colorado on or about Nov. 29, 2010, 3:30pm, (3) With the intent to Harass, Annoy, or Alarm John Stipech, (4) Initiated communication with John Stipech anonymously or otherwise, (5) By telephone, (6) In a manner intended to Harass or Threaten bodily harm or property damage.

The defendant clarifies that although John Stipech is listed as the only “victim” WPD CRN 2010-20293 the location of the event is 4800 92nd Av, Westminster, CO 80031, location type “Government/Public” refered to as City Hall.  Further proof that it is constitutionally impossible ofr John Stipech to be the victim in CRN 2010-20293 is offered by DDA Daniel Brechbuhl in his motion filed 08/12/11 in re “Res Gestae” testifying that “Defendant [Billy bob Bramscher] is charged with Retaliation against a Judge for events that occurred on or about November 29, 2010.  Bramscher called the City of Westminster and spoke to Rosanna Minjarez who works as a receptionist at about 3:30pm” and “The telephone call was not recorded”.  From WPD CRN 2010-20293 narritive authored by (20802) Philip A. Maimone in re to his interview with Minjarez, “[Rosanna Minjarez] stated that she DID NOT RECALL A LAST NAME if [Billy bob] had said it, nor did she get the number [Billy bob] was calling from before he hung up.”

***Please note that during the trial I proved that the above interview never took place as Maimone never  visited Westminster Municipal Court on November 29, 2010.

Defendant repeats that the alleged event resulting in 18-9-111(1)(e) as an alternative act of 18-8-615 was NOT recorded and Rosanna Minjarez did NOT get the last name of the caller.  Citing People v Carey, supra, “Telephone Harassment requires PROOF (e.g., recording, caller ID) of a telephone or computer communication that is obscene or is made in a manner to harass or threaten bodily injury or property damage.  To support that Rosanna Minjarez could be the only “victim” defense cites United States v Tobin, 2008 DNH 42, 02/21/08, “Telephone Harassment means “Provoke adverse emotional reactions in the called party (e.g. Rosanna Minjarez)” (see also People v McBurney, 750 P2d 916, 02/22/88).

***Third persons can NOT be victims of Telephone Harassment!!!

TRUE THREAT

Defendant petitions that the term “THREAT” as applied to 10CR3690 and Billy bob Bramscher is unconstitutional, vague and overbroad in violation of substantive/procedural Due Process and Equal Protection.

While some threats have no First Amendment protections, other threats are protected speech.  In Aguilar v People, the Supreme Court of Colorado recognized that “Constitutionally protected speech may be threatening” (886 P2d 725, 728 (Colo 1994).  Citing People v Janousek, 871 P2d 1189 04/04/84, “The critical inquiry for Frist Amendment purposes is whether the statements, viewed in the context in which they were spoken or written, constitute a “True Threat” (see also Watts, 394 US at 708; United States v Welch, 745 F2d614, 618 (10th Cir 1984) cert denied, 470 US 1006, 84 L Ed 2d 384, 105 S Ct 1364 (1985); United States v Dysart, 705 P2d1247, 1256 (10th Cir, cert denied 464 US 934, 78 L Ed 2d 307, 104 S Ct 339 (1983) in re  a “True threat is a serious threat, as opposed to mere political argument, talk, or jest” and “the critical inquiry is whether those who hear or read the threat reasonably consider that an actual threat has been made.”

The defendant argues that a “True threat” never existed and that constitutionally protected political speech was manipulated to chill defendants, Billy bob Bramscher’s, criticisms of publid officials in the forms of Freedom of Speech, Press and the right to petition for redress of grievances and that Billy bob Bramscher is a victim of First Amendment Retaliation.  Defendant cites for clear and convincing support WPD CRN 2010-20293 report narrative (20202) Phillip A. Maimone that on 11/29/10 Maimone was dispatched on “cold threats” and Maimone talked to Stipech who said that he had been advised of the “threat” and that Stipech did not want to do anything, at least at this time”.

***Again, the above conversation between Maimone and Stipech never occurred as I proved in court because NO officer was dispatched to the Municipal Court house on November 29, 2010.

In addition, an email from Westminster City official Mike Cressman on 12/06/10, 3:13pm “Subject:  [Billy bob Bramscher] – Complaint to Attorney Regulations” reads “[Bramscher, besides threatening the Judge, is looking for ways to make his life uncomfortable (HARASSMENT)”.  And in John Stipech’s own words from his Victim Impact Statement, January 11, 2011, “The impact of Mr Vote’s [sic] behavior, comments, threats, etc. have a PROFESSIONAL versus PERSONAL impact on my staff and other employees.”  John Stipech himself has eliminated the accusation of a “True Threat” revealing a complete lack of PROBABLE CAUSE.

~end~

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 and others!!!

~Aloha

~Billy bob Bramscher

~BbB~

https://www.facebook.com/BlueDakini

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One thought on “Unconstitutional, Vague and Overbroad

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

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