“I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”
“When power corrupts, poetry cleanses.”
~John F. Kennedy, 35th President of The United States of America EARTH
STORYLINE: Within the next few days the following motion will be submitted to the Denver Municipal Court and the Colorado Supreme Court as I continue to fight and protect our constitutional freedoms…
The City and County of Denver
BRAMSCHER, William R
Municipal Case Number: 14GS000200
District Court Case Number: 2014CV030627
Colorado Supreme Court Case Number: 2014SA318
***Motion for the Prosecution to Elect between Muliplicitous Counts before Trial***
TABLE OF CONTENTS
I. STATEMENT OF FACTS
II. STATEMENT OF CASE
III. STANDARD OF REVIEW
- Substantive Due Process
- Procedural Due Process
- Double Jeopardy
TABLE OF AUTHORITIES
Quintano v. People, 105 P.3d 585, 589 (Colo. 2005)
United States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991)
People v. Vigil, 251 P.3d 442, 448 (Colo. App. 2010)
People v. Henderson, 810 P.2d 1058, 1060 (Colo. 1991)
Lucero v. People, No. 05CA2142, 10SC72 (2012)
Roberts v. People, 203 P.3d 513, 516 (Colo. 2009)
Patton v. People, 35 P.3d 124, 128-33 (Colo. 2001)
United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006)
Ohio v. Johnson, 467 U.S. 493, 500 (1984)
United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir. 1997)
United States v. Clark, 184 F.3d 858, 872 (D.C. Cir. 1999)
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)
People v. Allen, 868 P.2d 379, 381 (Colo. 1994)
People v. Tallwhiteman, 124 P3.d 827, 835 (Colo. App. 2005)
People v. Rhea, COA 60. No. 12CA1133 (05/08/2014)
Fourth Amendment, USC
Fifth Amendment, USC
Fourteenth Amendment, USC
Sixth Amendment, USC
I. STATEMENT OF FACTS
The false allegations in this case are/were that on December 23, 2013, Defendant William Robert “Billy bob” Bramscher was terminated by his employer and that after leaving the building, Bramscher repeatedly called River Rock Dispensary harassing the employees by using foul language and threatening them. The General Sessions Summons and Complaint was issued and signed by Denver Police Detective D. Diaz Deleon #P04405 who is currently on paid leave as reported by The Denver Channel.
II. STATEMENT OF CASE
Defendant Bramscher was charged with violating the Denver Revised Municipal Code, Section 38-91 (Disturbance by Use of Telephone) and 38-92(a) (Threats). Case 14GS000200 was dismissed according to rule and law on 02/11/14 and the Denver City Attorney’s failed to file the “MOTION FOR RECONSIDERATION” within the TIME FRAME allowable under STATE and FEDERAL rule/law and this court fatally lacks jurisdiction.
The charges are multiplicious and following rule, law and case history the prosecution is required to select from the muliplicitous charges.
III. STANDARD OF REVIEW
“Multiplicity is the charging of the same offense in several counts, culminating in multiple punishments.” Quintano v. People, 105 P.3d 585, 589 (Colo. 2005). “The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.” United States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991) (internal quotation marks omitted); see also People v. Vigil, 251 P.3d 442, 448 (Colo. App. 2010) (“Multiplicitous convictions are prohibited because they violate the constitutional prohibition against double jeopardy.”).
“[T]he multiplicitous bar is at the core of the prohibition against double jeopardy.” Quintano, 105 P.3d at 590. Thus, “[a]nalysis of whether convictions should be merged must . . . be based on double jeopardy principles.” People v. Henderson, 810 P.2d 1058, 1060 (Colo. 1991). The Double Jeopardy Clause, U.S. Const. amend. 5, embraces “three separate but related prohibitions: (1) a rule which bars a reprosecution for the same offense after acquittal; (2) a rule barring reprosecution for the same offense after conviction, and; (3) a rule barring multiple punishment for the same offense.” Henderson, 810 P.2d at 1060 (internal quotation marks omitted).
Colorado cases provide a framework for deciding when a defendant’s conduct may support multiple punishments and thus withstand a double jeopardy challenge. See, e.g., Roberts, 203 P.3d at 516; Quintano, 105 P.3d at 590-91. But the parties have not cited — nor have we found — a Colorado case addressing whether merger at sentencing would cure double jeopardy concerns arising from multiplicitous charges and jury convictions. See Lucero v. People, No. 05CA2142, 10SC72 (2012) (addressing multiplicitous convictions as an illegal sentence); Roberts v. People, 203 P.3d 513, 516 (Colo. 2009), superseded by statute, ch. 244, sec. 2, § 18-4-401(4)(a), 2009 Colo. Sess. Laws 1099-1100 (addressing “unit of prosecution” for theft statute); Vigil, 251 P.3d at 449 (addressing double jeopardy concerns of multiplicitous convictions sua sponte); cf. Patton v. People, 35 P.3d 124, 128-33 (Colo. 2001) (vacating conviction where the defendant entered guilty plea and was sentenced for two convictions based on the same transaction, while the General Assembly had authorized punishment for only one).
In each of these cases, the defendant sustained multiple convictions based on charges that the appellate court held were multiplicitous. While the courts in Lucer and Vigil, 251 P.3d at 451, directed that the multiplicitous theft convictions be merged on resentencing, neither court addressed whether a trial court has discretion to allow a jury to consider multiplicitous charges, provided that any multiplicitous convictions are merged at sentencing. Nor do these cases consider possible prejudice to a defendant from trial of multiplicitous charges, beyond multiple convictions. The federal circuits have addressed these issues, as follows.
While the Double Jeopardy Clause protects defendants from multiple punishments for the same offense, “[w]here there has been no prior conviction or acquittal, the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed.” United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006); see also Ohio v. Johnson, 467 U.S. 493, 500 (1984) (“While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [a defendant] for such multiple offenses in a single prosecution.”).
Thus, when faced with multiplicitous charges, a trial court may take one of two courses. The court may exercise its discretion “to require the prosecution to elect between multiplicitous counts before trial.” United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir. 1997). Where, as here, multiplicity is both raised before trial and clear at that time, multiplicitous counts should be eliminated before trial because doing so would avoid the due process inquiry discussed below.
Courts have recognized two potential due process concerns in allowing a jury to consider multiplicitous charges. First, such charges increase the risk that the jury may reach a compromise verdict. See Johnson, 130 F.3d at 1426. Second, the jury could be exposed to different — and potentially more prejudicial — evidence when a defendant is tried on multiplicitous counts rather than on just one charge. See United States v. Clark, 184 F.3d 858, 872 (D.C. Cir. 1999).
Quoting Cornell University Law School, “The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be ‘deprived of life, liberty or property without due process of law.’ The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (‘legality’) and provide fair procedures.”
Substantive Due Process
The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. See also Sixth Amendment.
Procedural Due Process
Procedural due process refers to the aspects of the due process clause that relate to the procedure of arresting and trying persons who have been accused of crimes. It also applies to any other government action that deprives an individual of life, liberty, or property. According to the principle of procedural due process, if a person is deprived life, liberty, or property, s/he is entitled to adequate notice, hearing, counsel, and a neutral judge. This principle follows the concept of fundamental fairness.
Procedural due process requires the state and federal governments to follow certain procedures in criminal and civil matters. By placing such restrictions, it limits the government’s exercise of power. See Fifth Amendment; Sixth Amendment; Fourteenth Amendment.
Defendant William Robert “Billy bob” Bramscher petitions that the charges of DRMC 38-91 and 38-92 as applied violate the United States Federal Constitutions Double jeopardy protections. The Double jeopardy clauses of both the United States and Colorado Constitutions protect an accused against being twice placed in jeopardy for the same offenses. U.S. Const. amend. V; Colo. Const. art. II., 18. See Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) (“same elements” test); People v. Allen, 868 P.2d 379, 381 (Colo. 1994); People v. Tallwhiteman, 124 P3.d 827, 835 (Colo. App. 2005); See also C.R.S. 18-1-408(1).
Citing People v. Rhea, COA 60. No. 12CA1133 (05/08/2014) “Multiplicity is the charging of the same offense in several counts, culminating in multiple punishments.” See Quintano v. People, 105 P.3d 585, 589 (Colo. 2005). “The chief danger raised by a multiplicitious indictment is the possibility that the defendant will receive more than one sentence for a single offense.” United States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991); see also People v. Vigil, 251 P.3d 442, 448 (Colo. App. 2010) “constitutional prohibition” against double jeopardy. See Fifth Amendment; Sixth Amendment; Fourteenth Amendment.
Comparing the elements of “Disturbance By Use Of Telephone” and “Threat” as falsely, vindictively and maliciously alleged, William Robert “Billy bob” Bramscher, protests a double jeopardy violation. The defense petitions this court to force the prosecution to elect between multiplicitous counts before trial. See Fifth Amendment; Sixth Amendment; Fourteenth Amendment.
For the aforementioned reasons, William Robert “Billy bob” Bramscher, respectfully requests that this Court grants the defendants Motion for the Prosecution to Elect between Muliplicitous Counts before Trial.
By: /s/ ~BbB~
William Robert “Billy bob” Bramscher, No. 1
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