Category Archives: Contempt of Court

Colorado’s Stalking Law – New Case Explores One Sentence For Alleged Multiple Acts

Colorado’s Stalking Law

By Colorado Domestic Violence Defense Lawyer Attorney – for the defense of Stalking – Harassment Cases – H. Michael Steinberg

Colorado Stalking – Harassment Lawyer, C.R.S. 18-3-602 fo Felony Charges

Colorado’s Stalking Law presents as one of the most complex felonies alleging domestic violence in the state. The law itself is vague – confusing – and difficult to understand. However a 2010 Colorado Court of Appeals case People v. Demetrius Herron – not only clarifies the law – but carefully analyzes when and how an individual comes under this ambiguous law.

The Herron case held that a prosecutor could not “trump up” a single alleged crime of stalking into multiple convictions ending with multiple punishments and therefore enhanced sentencing.

Colorado’s Stalking Law
Colorado’s Stalking Law

Colorado’s Stalking laws fit into basically two categories:

Credible Threat Stalking – § 18-3-602 (1)( a )

and

Emotional Distress Stalking, § 18-3-602 (1)( c )

The issue in the case People v. Herron was whether the DA – could seek to “split” an individual charged with Stalking into multiple convictions with multiple punishments if convicted. The Colorado Court of Appeals said no.

The Stalking Law  in Colorado – And The Law Against Multiplicity of Punishments

Multiplicity is “the charging of multiple counts and the imposition of multiple punishments for the same criminal conduct.” In Colorado – unless the criminal law in question is expressly authorized by the General Assembly to permit multiple punishments, then multiplicitous convictions violate the Double Jeopardy Clauses of the United States and Colorado Constitutions. U.S. Const. amend. V; Colo. Const. art. II, § 18;

Therefore – when the issue in Herron reached the court of appeals – the court’s analysis in addressing a multiplicity challenge was to analyze the origins of the Colorado Stalking Law and determine whether the General Assembly’s definition of the crime charged encompasses a continuous course of conduct and to further determine whether the allowable “unit of prosecution” permitted multiple punishments.

Specifically the court looked at “the manner in which a criminal statute permits a defendant’s conduct to be divided into discrete acts for purposes of prosecuting multiple offenses.”

Stalking Is ONE Act – One Continuous Course Of Conduct

In scrutinizing the law to determine the “unit of prosecution,” the Court looked at how the law was designed.

Here Is Colorado’s Stalking Law (2013 Version) Also Known As Vonnie’s Law – With Bracketed Comments

§18-3-602. Stalking – penalty – definitions – Vonnie’s law

(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:

[The Law Outlines Three Basic Ways To Commit The Crime]

(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship; or

(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

(2) For the purposes of this part 6:

[These are the important definitions that help explain the Stalking law]

(a) Conduct in connection with” a credible threat means acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat.

(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.

(c) “Immediate family” includes the person’s spouse and the person’s parent, grandparent, sibling, or child.

(d) “Repeated” or “repeatedly” means on more than one occasion.

(3) A person who commits stalking:

(a) Commits a class 5 felony for a first offense except as otherwise provided in subsection (5) of this section; or

(b) Commits a class 4 felony for a second or subsequent offense, if the offense occurs within seven years after the date of a prior offense for which the person was convicted.

(4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401(10).

[New – Section – Enhanced Sentencing If A Restraining Order Is In Place]

(5) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against the person, prohibiting the behavior described in this section, the person commits a class 4 felony.

(6) Nothing in this section shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the judicial district of the court where the proceedings are to be heard and the district attorney for the judicial district in which the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.

(7) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating the report.

(8) (a) When a person is arrested for an alleged violation of this section, the fixing of bail for the crime of stalking shall be done in accordance with section 16-4-103(2) (d), C.R.S., and a protection order shall issue in accordance with section 18-1-1001(5).

(b) This subsection (8) shall be known and may be cited as “Vonnie’s law“.

(9) When a violation under this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentences imposed pursuant to this section and pursuant to section 18-6-803.5 or any sentence imposed in a contempt proceeding for violation of the court order shall be served consecutively and not concurrently.

“Stalking” Cannot Be Separated Into More Than One “Unit” Of Continuous Conduct – One Crime

The Herron Court held that:

“We conclude from the plain words of the statute that the legislatively defined unit of prosecution for the crime of stalking is a continuous course of conduct by which one repeatedly follows, approaches, contacts, or places another under surveillance. “

It is a “single crime for which the General Assembly has not authorized multiple punishments.”

The Court made it clear that acts constituting stalking, such as following, approaching, contacting, or placing another under surveillance, have to be performed “repeatedly.” To be convicted of a second stalking offense, a defendant must complete a separate transaction that is factually distinct from the first, on at least two more occasions.

One Last Point – The Defendant Need Not “Know” That His – Her Actions Caused The Alleged Victim to Suffer Serious Emotional Distress

Juries decide whether the emotional distress was caused by the accused and whether the “serious emotional distress” meets the objective “reasonable person” standard to measure whether the emotional distress inflicted upon the victim was actually “serious” or just annoying.

The mental state almost always applies to all of the “elements” of a crime unless the legislative intent is to limit its application. The Colorado State General Assembly has stated that since a stalker may be oblivious to reality of the emotional distress he or she is causing,….”it would be absurd to allow a defendant so out-of-touch with reality to avoid criminal prosecution.”

Therefore – the mental state for this crime is “knowingly” but this mental state does not apply to the element that the alleged stalker be aware that his or her conduct would cause serious emotional distress to a reasonable person.

WARNING – If You Are Under Investigation For Felony Stalking In Colorado

Stalking in Colorado is a felony – the impact of a felony on one’s life can not be understated. The crime itself is difficult for the prosecution to prove because of the very ambiguous nature of the offense. Local police which try – then – in the guise of conducting their investigation – to obtain admissions on the part of the “target” – you – that place you in certain locations – making certain phone calls – sending certain texts.. Our advice – exercise your Miranda rights – remain silent – and call an experienced Colorado criminal defense lawyer as soon as practicable.

Please call our law firm if you have questions about ..

Colorado’s Stalking Law

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277.

If you have questions about Colorado’s Stalking Laws in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will also provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters as regards ..Colorado’s Stalking Law.

2012 – Colorado Law Changed For Failure To Obey A Subpoena – Refusal To Testify In Colorado Trial

I am often asked as a Colorado Domestic Violence Lawyer – ” what if I refuse to come to trial and testify?” Ethically – ALL lawyers know they MUST urge their clients and ALL witnesses to obey court orders and testify – even when they do not want to ..this is because the criminal justice system would collapse if witnesses could pick and choose when they will obey a Court Order of any kind.

Trials are intended to vindicate the innocent and convict the guilty.  So there are punishments allowed to be meted out by a judge of a witness or victim refuses to obey a lawfully served subpoena.

This new change in the law – governs the conduct and power of a trial judge where a witness refuses to appear and – or otherwise obey a subpoena in Colorado.  This law makes

Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena

The Old Law – 17(H)

17 (h) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

The New Law – 17(H)

The Colorado Supreme Court has amended Rule 17(h) of the Colorado Rules of Criminal Procedure – Failure to Obey a Subpoena.

The new rule reads:

(h) Failure to obey subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued hop over to this site. Such contempt is indirect contempt within the meaning of C.R.C.P. 107. The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

(2) Trial witness—bench warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court immediately upon apprehension or, if the court is not then in session, as soon as court reconvenes.

Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury;

or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

This amendment was adopted on April 23, 2012 and is effective July 1, 2012.

Here is a LINK to the New Law: 

The comments to the rule – that help explain the decision to create the new rule are as follows:

The Advisory Committee on Rules of Criminal Procedure has recommended two changes to Crim. P. 17(h), which deals generally with a subpoenaed witness’ failure to appear at a trial or hearing:

1.A clarification that such a failure to appear is indirect contempt that may be dealt with under C.R.C.P. 107; and

2.An addition codifying, but also limiting, what many trial judges across the state have always believed was their inherent power to issue bench warrants when witnesses fail to appear for a criminal trial.

The Committee recommends four limitations to this power to issue arrest warrants:

1.That it be limited to trials, and not apply to hearings;

2.That the arrested witness must be brought directly and immediately to court;

3.That a bond be immediately set; and

4.That the authority to issue the bench warrant automatically expires, and any already-issued warrant automatically is vacated, when the trial is either continued or concluded.

H. Michael’s Take:

This represents a sea change in what most lawyers thought about bench warrants issued for witnesses who fail to appear.

Here is the committee’s thinking on the reasons for the law:

..there is no Colorado rule or statute giving a trial judge any express authority to issue bench warrants when subpoenaed witnesses fail to appear for criminal trials.

“After  wide-ranging discussions over many months, a substantial majority of the Committee concluded that the uncertainties surrounding this inherent power should be formally addressed by modifications to Crim. P. 17(h), and that those modifications should expressly recognize the trial court’s power to issue bench warrants for the arrest of non-appearing criminal witnesses, as a practical alternative to indirect contempt  proceedings  under C.R.C.P. 107.”

The one dissenting member of the committee had this to say about the process:

“… the legislature has not authorized  a court to proceed with a bench warrant. [And] …there is a good reason for the indirect contempt process:  it allows for the witness to have some modicum  of process without being grabbed by law enforcement.  Perhaps service of process did not occur as relayed by the serving party, or the witness had a valid excuse (such as a belief that the witness  was placed “on  call”.)  Rather than expanding the opportunity for a peace officer to take someone into custody, the process of indirect contempt allows for a less aggressive avenue to address the problem of a missing witness, one that is much less threatening to civil liberties. For these reasons,  I am strongly against adopting a rule-based framework for issuance of a bench warrant when a criminal trial witness is alleged to have failed to appear on a subpoena.”

However – this lawyer believes that the expiration of the bench warrant for failure to appear at trial – – if the trial proceeds to verdict – or if the trial is canceled or terminated for some reason – makes complete sense and is a good fix to the present state of the law.

Indirect Contempt of Court in Colorado

Contempt of court is governed by Colorado Rules of Civil Procedure Rule 107. Rule 107 indicates that there are two types of contempt, direct and indirect. Direct contempt generally relate to actions taken in the court and contempt brought by the judge. Our attorneys rarely deal with direct contempt, as they are just not that common. Indirect contempt are contempt generally brought by one party against the other for violating the court’s order, which can be “indirectly” offensive to the court.

Contempt are further categorized as being either “remedial” or “punitive.” With punitive contempt, pure punishment is sought, whether fines or jail time (which can be up to 180 days). With remedial contempt, individuals seek an order remedying the violation of court orders. In a remedial contempt situation, the person bringing the action can also seek attorney fees. In the punitive situation, they cannot. However, C.R.C.P. Rule 107 allows a person to seek both remedial and punitive sanctions in the same action.