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David Weilbacher, Esq.
David Weilbacher, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 335
Experience:  Criminal & Civil Litigation, Estate Planning, Probate, and Bankruptcy
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C.R.S 18-9-111(4) is the Colorado statute for stalking. Subsection

Resolved Question:

C.R.S 18-9-111(4) is the Colorado statute for stalking. Subsection (4)(a) is a paragraph summary which looks to discuss the stereotype for stalking but not any actual requirements (???). Meanwhile subsection (4)(b) offers the three requirement options for stalking.

So...does the accused have to first fit the stereotype of (4)(a) and then also one of the (b) options? Also in the comments at the bottom there are two comments which read:

"The defendant could not have been charged with a violation of subsection (4) until all of the elements of the crime are completed." People v. Bastian, 981 P.2d 203 (Colo. App. 1998).

and..."A person must directly, or indirectly through another person, knowingly make a credible threat to another person and repeatedly make any form of communication with the recipient of the threat." People v. Baer, 973 P.2d 1225 (Colo. 1999)

This last comment in particular is strange because C.R.S 18-9-111(4)(b)(iii) does not require a credible threat to be made at all even.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  David Weilbacher, Esq. replied 11 months ago.

David Weilbacher, Esq. :

Hello. My name is XXXXX XXXXX X'X like to help you. I'm a little confused by your question. Are you sure you are reading the current version of C.R.S 18-9-111? The current version indicates that subsection (4) was repealed effective August 11, 2010. Further, the cases you cite are no longer contained in the Comments section of the statute. Please review this link to the statute: http://www.lexisnexis.com/hottopics/colorado/

David Weilbacher, Esq. :

Can you provide me a link to the statute you are reading, so I can review it?

David Weilbacher, Esq. :

Please stand by while I review the link you provided.

David Weilbacher, Esq. :

The version of the statute you are reading is dated 2004. The statute has been amended several times since then. The current version can be found at the link I provided you. I'll attempt to post the statute here, but I'm not sure if the format will be maintained.

Customer:

Actually I had been involved in a Colorado felony stalking arrest in 2010. The arrest was made in July, 2010. The basis for the arrest on the police report was CRS 18-9-111(6)(b)(iii). In October 2010 the DA presented to the judge with this reference as well.

Customer:

Oh, i'm sorry it was (4)(b)(iii) on the police report.

Customer:

Currently I am involved in a civil rights lawsuit in regards XXXXX XXXXX arrest...so the violations would have to be in regards XXXXX XXXXX statutes, correct, not the new ones?

David Weilbacher, Esq. :

It would involve the version of the statute at the time of the events.

Customer:

If the laws were changed in August 2010 would that have altered the original arrest warrant? Should not changes have been made by the DA to the affidavit?

David Weilbacher, Esq. :

No. You would have been charged based on the version of the at the time of the offense.

David Weilbacher, Esq. :

Let me review the version you sent me. Please stand by.

Customer:

Okay. That makes sense.

Customer:

Actually here is a 2007 version. Wow. Lots of revisions.

Customer:

Now I'm confused...

Customer:

Here is a version which says the new stalking law came into effect in April, 2010:

Customer:

All I know is that on the police report affidavit issued July 9, 2010 the charge was stalking 18-9-111(4)(b)(iii)

David Weilbacher, Esq. :

Legislators have to justify their existence, so statutes are revised almost continually. We need to identify the version of the statute in effect when the events occurred.

David Weilbacher, Esq. :

Let me look at the last cite you provided. Please stand by.

Customer:

The events occurred over the spring of 2010 but the actual arrest was that July.

David Weilbacher, Esq. :

Ok. So it appears that 18-9-111(4)(b)(iii) was revised, or more accurately, moved to 18-3-602(c) in April 2010.

Customer:

Maybe the detective who made the arrest wasn't aware of the law change. Does that even make sense?

David Weilbacher, Esq. :

The police officer who made the arrest/complaint against you was citing the substance of the statute he felt you violated, by was not aware the the citation had changed.

Customer:

Wow. That's strange.

Customer:

Is that legal?

Customer:

A DA and a judge signed off also on that affidavit. Maybe they weren't aware too...?

David Weilbacher, Esq. :

It's not unusual. Sometimes legislative revisions are made, and the police do not learn of the changes immediately.

Customer:

The District Attorney in my case held onto this statute for arrest even until an evidentiary hearing held in late October of that year. Shouldn't that have been something for her to notice, and change?

David Weilbacher, Esq. :

Prosecutors are like anyone else; they look for away to make their jobs easier. So, they use forms and check the box. The form the prosecutor used probably had the old citation.

Customer:

Is that just carelessness, or could possibly it be prosecutorial misconduct. That just seems very irresponsible.

David Weilbacher, Esq. :

I would think that your defense attorney would have noted the revision in the statute, and brought it to the court's attention.

Customer:

No kidding.

Customer:

How could all those people not notice. Also there were 5 DA investigators who signed off on that affidavit. Wow.

David Weilbacher, Esq. :

It would not be misconduct. The prosecutor was making a charge under a current version of the statute, but mistakenly providing the wrong citation.

Customer:

That's a big mistake though. Maybe Colorado should provide a better means to alert govt. personal of law changes.

David Weilbacher, Esq. :

Were you ultimately convicted?

Customer:

There were numerous civil rights violations in that affidavit, failings of common sense all over the place, and other instances of blatant prosecutorial misconduct and police abuse. My lawyer was alerted to the changes and his response was that it happens sometimes, and that the alleged victim also would be allowed to lie. The DA offered an extremely light plea offer which finally I accepted as a deferred sentence. Later I would write a letter to the head DA with mention of all the errors and oversights and he filed a motion for withdrawal of plea and dismissal of case. At present my lawyer and I are filing a lawsuit for 1983 violations by the police and 1985 conspiracy against the DA's office. He says I have a "good case".

Customer:

conspiracy BY the DA's office...sorry

Customer:

My case was replete with govt people looking the other way at blatant errors and fraud. And now this...

Customer:

There were actual washouts of words in the affidavit...of the evidence, that is

David Weilbacher, Esq. :

So, what exactly is it that you are trying to learn here, since you have an attorney handling the case?

Customer:

Just to get some things clarified. I had sent in all the info I had to my lawyer to look over. We're actually doing a limited scope representation as he had in the meantime (after I signed the contract) lost his federal employ who does the 1983 cases. What this means is that now I file the lawsuit pro se though with "help" all along from my lawyer, then when the authorities file their "motion for summary judgment" he comes in and represents me. We're all the while under contract.

Customer:

Anyway I believe he helped me out a lot here. I'll have to look all this over then maybe come back later with some follow-up question. Thank you very much for your time. Unless there is something else you would like to add...personally, I just think that, all with everything else, the whole department not knowing about the new law is at least somewhat suspicious...

Customer:

Judges and DA's should know about revisions to the statute of the cases they are working on six months after the fact; that just seems reasonable

David Weilbacher, Esq. :

The failure of the police department to be aware of the current version of the statute at the time of the arrest could form the basis for a civil rights claim, if you can establish a pattern of past similar conduct or a policy to ignore such changes in the law when it is convenient to the department.

Customer:

Right. But finding those other cases is the whole trick.

David Weilbacher, Esq. :

It would be difficult to make such a claim against the prosecutor and the judge personally, because they have immunity for their actions. You would need to sue the entities that employ them, i.e. the city or county.

David Weilbacher, Esq. :

Exactly, that's why those cases are so difficult to win.

David Weilbacher, Esq. :

The police only have qualified immunity, so you can go after them personally, if you can show a pattern of conduct.

Customer:

Right. I know about immunity. We will attempt to sue the entire DA's office on 1985 "conspiracy" grounds. We actually have quite a bit of evidence, and this only adds to things. But again the challenge will be to prove a "pattern"...

Customer:

Yes, the PD will be easier

Customer:

Anyway thank you very much for all your help.

David Weilbacher, Esq. :

I hope this answers you questions. If I can help further, please request me.


 


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David Weilbacher, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 335
Experience: Criminal & Civil Litigation, Estate Planning, Probate, and Bankruptcy
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