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COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 30+ years
private practice in Colorado state and
municipal courts |
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ROBERT D. GUSTAFSON |
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ATTORNEY AT LAW
6538 Charter
Drive
Colorado Springs, CO 80918-1335 |
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Phone (719)
260-1002
Fax (719) 260-1003 *
Toll Free (800) 410-1002 |
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COLORADO SPRINGS CRIMINAL DEFENSE & TRAFFIC DEFENSE
Colorado Springs, El Paso County, Colorado
Pikes Peak Region * Surrounding Colorado
Counties * Southern Colorado * Front Range *
Continental Divide * Eastern Plains |
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representation inquiries are invited & welcome
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public questions seeking free
advice or information declined
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consultation terms |
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attorney does not accept
installment payments
* full payment
is due at the time attorney is retained * major charge cards
accepted |
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Colorado Springs, criminal
defense attorney, felony offenses, misdemeanor offenses, petty offenses,
domestic violence, shoplifting, theft, burglary, prostitution, sealing
criminal records, DUI, traffic ticket defense, Colorado trial practice 30+
years, Colorado Springs, Colorado, attorney, lawyer, criminal defense,
felony, misdemeanor, petty offense, driving under the influence, DUI
Colorado Springs, domestic violence Colorado Springs, traffic ticket,
traffic defense, harassment, assault, menacing, weapon, statute of
limitations, deferred sentence, sealing criminal records |
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TO REMAIN SILENT |
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NO STATEMENTS
LAW ENFORCEMENT * PROSECUTORS
* THIRD PERSONS |
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Admissions made by a criminal defendant may be admissible in the prosecutor's
case in chief. At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make
any statements whatsoever to any law enforcement officer, prosecutor, witness,
the alleged victim, an insurance adjuster or any other third person.
Prosecutors
will not hesitate to file intimidation of witness felony charges, and your
statements are admissible in a trial or motions hearing. You have the
absolute right to remain silent even if police don't tell you. Exercise
that right. In some circumstances, no statutory
privilege exists with respect to medical providers (doctor, nurse, etc),
counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse
(husband, wife) - only the attorney-client privilege exists. Consult with your attorney before
talking.
When the police
call or drop by, don't talk to them.
Simply say at the outset that you wish to remain silent & want an
attorney.
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RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE |
NO CONSENT - NO VOLUNTARY SEARCH
NO WAIVER OF OTHER RIGHTS |
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When a criminal suspect voluntarily gives permission for police or law
enforcement to search, items found in that search will likely be admissible as
evidence. Conversely, searches without a warrant are presumed unlawful
with some exceptions. Evidence found as a result of an unlawful search may
be suppressed (excluded from admission) as a fruit of the poisonous tree.
Every citizen has the constitutional right to be free from unreasonable search
and seizure. Never consent to a search or seizure without advice of legal
counsel. Let law enforcement procure a warrant or face possible
constitutional challenge to the evidence.
Similarly, no other rights should be waived by any criminal suspect or defendant
without advice from counsel. If you aren't certain what your rights are at
the time of the police request, simply say no - I need to speak to an attorney.
When the police drop by, don't
admit them absent a warrant. Don't consent to any search.
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CRIMINAL DEFENDANT
DEMEANOR |
Defense attorneys frequently see the police report phrase:
"suspect was cooperative." Law
enforcement officers will do what they will do regardless of your cooperation -
it won't help and may likely hurt your court case defense.
This attorney advises clients to remain silent and be courteous, calm and in
control of your emotions. Politely decline any police requests,
making the statement you need to consult with legal counsel before giving
a response, that you exercise your right to remain silent and request presence of an attorney.
Do not agree or consent to any search or seizure.
You have the right to remain silent
in court and the right to presence of defense counsel for all court proceedings.
If you have not yet retained but plan to do so, advise prosecutors and the judge
that you exercise your right to remain silent and want an attorney present with
you. Do not discuss the facts of your case and do not make any admissions.
Ask the court for additional time
to hire counsel.
You have the right to
presence of and advice of defense counsel. Assertion of your rights may be done in a courteous
manner, but exercise your
rights. Don't cave in to your fears or to your preconceptions
of "what you are required to do."
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CRIMINAL
LAW DEFENSE
FELONY OFFENSES *
MISDEMEANOR OFFENSES
PETTY OFFENSES *
TRAFFIC OFFENSES |
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FELONY
OFFENSES AND MISDEMEANOR OFFENSES
Harassment
& Stalking,
Third
Degree Assault,
Second
Degree Assault,
Menacing
- Felony or Misdemeanor,
Violation
of a Restraining Order,
False
Imprisonment,
Criminal
Mischief,
Obstruction
of Telephone,
Wiretapping,
Eavesdropping,
Perjury,
False Swearing & False Reporting
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NOTICE: I NO LONGER ACCEPT CASES:
SEXUAL ASSAULT (RAPE) or SEXUAL ASSAULT ON A CHILD |
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GENERAL
CRIMINAL OFFENSES
FELONIES AND
MISDEMEANORS |
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Property and Dishonesty
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Theft - Felony & Misdemeanor, Petty Theft & Shoplifting,
Trespassing, Burglary, Theft of Rental Property, Aggravated Motor Vehicle Theft, Theft
by Receiving, Theft of Cable Service, Giving False Information to a
Pawnbroker, Criminal Trespass, Criminal Tampering, Defacing Property,
Forgery, Issuance of Bad Check, Uttering a False Instrument, Criminal
Impersonation, Altering Identification Number, Bribery, Embezzlement, Unauthorized Use of a
Financial Transaction Device, Unauthorized or Fraudulent Use of Guaranteed
Check Card or Credit Card, Computer Crime, Gaming Offenses |
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Crimes Against Person
Manslaughter, Criminally Negligent Homicide,
Second
Degree Assault,
Third
Degree Assault, Fighting,
Menacing
- Felony or Misdemeanor,
Harassment
& Stalking,
Violation
of a Restraining Order,
False
Imprisonment,
Criminal
Mischief, Criminal Extortion,
Misdemeanor Child Abuse, Reckless
Endangerment, Violation of a Custody Order, Kidnapping,
Extortion - Blackmail |
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Drugs
Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V
Unlawful Use of a Controlled Substance
Unlawful Distribution, Manufacturing, Dispensing, Sale or Possession
Offenses Relating to Marihuana or Marijuana Concentrate
Possession of Drug Paraphernalia, Manufacturing * Sale or
Distribution of Drug Paraphernalia |
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Government Operations
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Obstructing Government Operations, Obstructing a Peace
Officer, Resisting Arrest, False Reporting to Authorities, Escape,
Violation of Bail Bond Conditions,
Perjury,
False Swearing & False Reporting, Intimidation of
Witness or Juror, Intentionally Setting Wildfire, Foreign Matter on
Highway - Littering - Throwing Lighted Cigarette, Cigar or Burning
Materials on Highway |
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Public Peace, Order &
Dignity
Obstruction
of Telephone,
Wiretapping,
Eavesdropping,
Abuse of Telephone, Gambling, Loitering, Dog at Large, Cruelty to Animals,
Unlawful Ownership of Dangerous Dog |
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Firearms & Weapons
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Possession of Dangerous Weapon, Unlawful Concealed Weapon, Unlawful
Possession of Weapon,
Prohibited Use of Weapons, Possession of Firearm
Under the Influence of Alcohol or Drugs - Intoxication,
Unlawful Discharge
of Firearm, Possession of Handguns by Juveniles |
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Inchoate Offenses
Criminal Attempt, Criminal Conspiracy, Criminal Solicitation,
Complicity (Accomplice), Accessory |
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NOTICE: I DO NOT ACCEPT HOMICIDE OR MURDER
and
I NO LONGER ACCEPT CHILD ABUSE HOMICIDE OR FELONY CHILD ABUSE |
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IMMUNITY - LIMITED INFORMATION |
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Grant Immunity? |
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It is counsel's opinion that safe negotiation for immunity (transactional immunity or use immunity) can only be
engaged with a state prosecutor - a deputy district attorney or assistant attorney
general. Although the DDA or AAG may and
likely will seek the advice and counsel of the investigating law
enforcement officer or detective, immunity can not be safely negotiated
with law enforcement. Notwithstanding the below cited Manning
and Romero
cases, in negotiations involving confidential informant (CI) services in return for "a deal" and
immunity regarding disclosed transactions or CI
services to be rendered, counsel would be concerned that should a law enforcement officer or detective
promise not to prosecute if the suspect cooperates, the promise may not be binding
or provable. Therefore counsel will only conduct immunity negotiations
with a DDA, not a law enforcement officer or assistant city attorney, and
to cover the bases, counsel further requires a court order approving the immunity agreement. |
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A district attorney, attorney general, or special
prosecutor of the state of Colorado may request an order as specified in
subsection (2) of this section when in his or her judgment the testimony
or other information from such individual may be necessary to the public
interest and such individual has refused or is likely to refuse to testify
or provide other information on the basis of the privilege against
self-incrimination. CRS 13-90-118(3). |
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Decision to grant immunity rests within discretion of
prosecution. People v. Macias, 44 Colo. App. 203, 616 P.2d
150 (1980); People v. Russom, 107 P.3d 986 (Colo.App. 2004).
This section vests the office of the prosecutor with sole discretionary
authority to apply its provisions to any witness. People v. Harding,
671 P.2d 975 (Colo.App. 1983). Courts possess no inherent power to
grant immunity described in this section and may not grant it except
upon request of prosecuting attorney. People v. Merrill, 816 P.2d
958 (Colo.App. 1991); People v. Raibon, 843 P.2d 46 (Colo.App.
1992); People v. Eggert, 923 P.2d 230 (Colo.App. 1995). |
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Although CRS 13-90-118 authorizes a district attorney,
attorney general, or special prosecutor to petition a district court for
an order granting a person use immunity in exchange for the person's
testimony in a judicial proceeding, this statute is not the only source
for enforcing a governmental promise of immunity. Our decisions
expressly recognize that, even though the statutory immunity provisions
of CRS 13-90-118 are not followed, a state may nonetheless be bound by a
promise of immunity made to a defendant by a governmental agent
possessing the apparent authority to bind the government. e.g.,
People v. Manning, 672 P.2d 499 (Colo. 1983); People v. Fisher,
657 P.2d 922 (Colo. 1983). People v. Romero, 745 P.2d 1003
(Colo. 1987) |
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To assess whether a person accused of
criminal conduct may enforce an offer of immunity by an official not
listed in this section, three inquiries must be made: (1) Whether the
defendant's privilege against self-incrimination is implicated; (2)
whether the defendant reasonably and detrimentally relied upon the
government official's promise by performing his or her side of the
bargain; and (3) whether a remedy short of actual enforcement of the
promise would approximate fundamental fairness. Hopp & Flesch v.
Backstreet, 123 P.3d 1176 (Colo. 2005). |
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Police officer possesses the necessary
apparent authority to make promises of immunity which bind his principal,
the government. People v. Manning, 672 P.2d 499 (Colo. 1983). |
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A citizen may not grant another citizen
transactional immunity from prosecution. People v. Oram, 217 P.3d
883, 895 (Colo.App. 2009). |
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Types of Immunity
transactional immunity and use
immunity |
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Transaction immunity may be simply described as that which
precludes prosecution for any transaction or affair about which a witness
testifies.
Use immunity, by contrast, is a grant with limitations.
Rather than barring a subsequent related prosecution, it acts only to
suppress, in any such prosecution, the witness' testimony and evidence
derived directly or indirectly from that testimony.
Steinberger
v. District Court, 198 Colo. 59, 596 P.2d 755 (1979). |
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There are two separate and
distinct types of witness immunity recognized by the law: transactional
immunity and use immunity. Transactional immunity precludes prosecution
for any transaction about which a witness testifies. Use immunity,
however, acts only to suppress the witness' testimony and evidence derived
directly or indirectly from that testimony in any prosecution of that
witness. Wheeler v. District Court, 184 Colo. 193, 519 P.2d 327 (1974). |
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The term "use immunity" refers to a witness's protection
from the government's use of the witness's testimony, or any information
derived from it, in any later criminal prosecution against the witness.
1 National Lawyers Guild, Representation of Witnesses Before Federal
Grand Juries § 8.39, at 8-96 (4th ed. 1999). Use immunity is
different from transactional immunity, which is total immunity from
prosecution for any transaction about which the witness testifies. Id.
Hopp & Flesch, LLC v. Backstreet, 04SC697 (Colo. 11-21-2005) |
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| Need
for Specificity of Immunity Agreement |
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Construction of immunity agreements by the court is a gray
area with lots of ifs, ands, buts, legalese, statutory reasoning and constitutional reasoning regarding
evidentiary use and non-evidentiary purposes.
Adage: "bad cases make good law" - we won't
travel that road. The nature, terms and extent of agreed defendant disclosures or CI services should be
carefully reduced to writing in the immunity agreement & order, as well as
written statement specifically, clearly and patently setting forth whether
transactional immunity or use immunity is being granted, the extent of immunity granted and exclusions thereto. The executed
immunity agreement & order should be quite specific, and defendant or
defense counsel should have an original or certified copy in his or her
possession. To do otherwise is to invite law enforcement to run the
confidential informant ragged for an indeterminate period of time, and
perhaps face criminal charges at a later time. Officers or
detectives will take advantage of a CI for as much and as long as they
can, and they will continually allege the suspect / defendant hasn't yet complied.
Although it may be feigned, there is no friendship, sympathy or empathy -
a CI is merely a tool to be used. |
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Information or
Services Limited to Terms of Agreement |
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Information or CI services provided should be limited
to those matters specifically covered in the immunity agreement.
Additional information or services outside the scope of the immunity
agreement may be subject to prosecution, use as evidence at trial or
other use. |
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Where prosecutors were exposed to defendant's immunized testimony but
defendant had previously made a detailed statement concerning her part
in the crime and defendant's counsel provided additional information to
the prosecutors that was not referred to in the detailed statement,
possible prosecutorial use of information from the immunized testimony
was not a structural defect in the trial and a harmless error analysis
was appropriate. In conducting such analysis court was entitled to
consider the fact that defendant's participation in the crime was not
seriously contested at trial. People v. Reali, 895 P.2d 161
(Colo.App. 1994); People v. Reali, 950 P.2d 645 (Colo.App. 1997) |
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Ambiguity or Vagueness of
Immunity Agreement |
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A trial court judge must determine that which was agreed or promised.
If the immunity agreement is incomplete, ambiguous or vague, the trial
court must wade through testimony or other evidence to determine if in
fact there was an immunity agreement or benefit or inducement promised,
and if so, the scope of immunity granted or benefit promised, whether
there was detrimental reliance by defendant and the scope of action
required of the defendant to be in compliance and gain the protection.
Written immunity agreement clarity, specificity and inclusiveness is
definitely a plan. Oral agreement or advisement is not. |
| People v. Romero, 745 P.2d 1003
(Colo. 1987) - written immunity agreement executed by DDA - with oral
advisements |
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The decisive factors to consider in ascertaining the existence and
extent of a defendant's right to enforcement of a governmental promise
are: whether a promise was made to the defendant by a governmental
official with apparent authority to bind the government, and, if such
promise was made, the scope of the promise; whether the defendant
reasonably and detrimentally relied on the promise by performing his
side of the bargain; and, if the defendant reasonably and detrimentally
relied on the promise, the appropriate remedy to which the defendant is
entitled. See Manning, 672 P.2d at 505-09, 512-13;
Fisher, 657 P.2d at 927-31. Although the promises made in both
Fisher and Manning implicated constitutional rights of the
defendants - specifically, their privilege against self-incrimination
and their right to effective assistance of counsel, see Manning,
672 P.2d at 504; Fisher, 657 P.2d at 928 - we noted in Fisher
that the right to enforcement of a governmental promise does not depend
upon proof that some independent constitutional right of the accused was
impaired or implicated by the promise. 657 P.2d at 927. |
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In determining whether a governmental promise has been made and in
ascertaining the scope of any such promise, it is appropriate for a
trial court to consider not only the form and content of any written
document purporting to incorporate the government's representations to
the defendant but also any oral statements made to the defendant as well
as extrinsic evidence relating to the circumstances of the government's
dealings with the defendant. See Manning, 672 P.2d at
508-09; Fisher, 657 P.2d at 929. Consideration of extrinsic
evidence is especially appropriate when the written document itself is
ambiguous. Under such circumstances, a court's task is not to
rewrite the agreement but to construe it in a manner consistent with the
intent of the parties and the defendant's right to be treated fairly by
the government. |
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Suspect or Defendant
Failure to Comply with Immunity Agreement |
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Defendant, who was granted immunity but still refused to testify, was
not protected from prosecution under this section. People v. Castango,
674 P.2d 978 (Colo.App. 1983). Prosecutors and law enforcement
have heretofore threatened counsel's client with non-compliance -
alleging client didn't
do enough to constitute compliance. When the immunity agreement
has been properly drafted, that can be shut down - see below
enforcement. |
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Enforcement of
Immunity Agreement Against Prosecution |
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When a defendant has acted with reasonable and
detrimental reliance on a governmental promise involving a grant of
immunity, the government must be stopped from going back on its promise.
People v. Romero, 712 P.2d 1081 (Colo.App. 1985), rev'd, 745 P.2d
1003 (Colo. 1987), cert. denied, 108 U.S. 1759, 108 S.Ct. 1296, 99
L.Ed.2d 506 (1988). |
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Synopsis Type Case
who can grant immunity - types
of immunity - failure to comply with immunity agreement |
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Reported Case: People v. Eggert, 923 P.2d
230, 232-233 (Colo.App. 1995) - The applicable statute, CRS § 13-90-118, adopted
in its present form in 1983, provides only for use immunity. See People v. Lederer, 717 P.2d 1017 (Colo.App. 1986). It states, in pertinent part: |
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(1) Whenever a witness refuses, on the basis of his privilege against
self-incrimination, to testify or provide other information . . . and the
person presiding over the proceeding communicates to the witness an order
as specified in subsection (2) of this section, the witness may not refuse
to comply with the order on the basis of his privilege against
self-incrimination; except that no testimony or other information directly
or indirectly derived from such testimony or other information may be used
against the witness in any criminal case, except a prosecution for perjury
or false statement or otherwise failing to comply with the order. |
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(2) In the case of any individual who has been or may be called to testify
. . . the district court . . . may issue, upon request of any district
attorney, attorney general, or special prosecutor of the state of
Colorado, an order requiring such individual to give testimony or provide
other information which he refuses to give or provide on the basis of his
privilege against self-incrimination, such order to become effective as
provided in subsection (1) of this section. |
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Under a plain reading of this section, a trial court may grant the use
immunity specified in subsection (1) only upon the request, under
subsection (2), made by a district attorney, attorney general, or special
prosecutor. The trial court possesses no authority to order the prosecutor
to make such a request, nor does it have the authority to grant immunity
on its own initiative. Harding v. People, 708 P.2d 1354 (Colo. 1985);
People v. Raibon, 843 P.2d 46 (Colo.App. 1992). |
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CAVEAT:
This section of this web page is not
intended to be a definitive statement regarding immunity.
Attorney has not addressed all issues, nor given a thorough examination of issues
presented. Just a few brief bits of information. If you have a need for more information,
refer to self help
legal
research |
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INDEPENDENT SERVICE PROVIDERS |
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Where relevant, attorney utilizes
the services of independent professionals. Rates of independent
providers of professional services change periodically and billings are not
controlled by counsel. |
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If retained by counsel as an
agent of the attorney, such independent service providers are protected and bound by the
attorney-client privilege and the attorney work product doctrine. If retained privately by the client, no such
agency or confidentiality exists. |
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Educational Classes
DUI * MIP * traffic safety *
petty theft * domestic violence * anger management * conflict resolution
Public Service - Victim Impact Panel
Alcohol or Drug Assistance - Mental Health - Safe House
DMV Forms - Colorado Accident Report - CSPD Accident Cold Report |
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Alcoholism or drug addiction can occur at any age, socio-economic background,
race or religion. Think it can't happen to you or a loved one? - think again. As with other
illnesses, dependency doesn't care who are, what you are, how old you are, or
where you come from. If client, loved one or opposing parent has an alcohol or drug problem, he /
she should also
immediately commence attending at least 1 AA
or NA meeting per week. Address the problem and get it under control before it has a chance to destroy
the quality of life. Support is available. |
Thank you for considering my
services; I appreciate your inquiry.
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webpage
your interest in my services is appreciated |
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INITIAL CONSULTATION TERMS
not an offer for legal advice - refer to link for terms
attorney is a sole practitioner with need to manage his caseload
attorney reserves the right to decline any legal matter |
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PRIMARY WEBSITE |
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| GUSTAFSON LAW OFFICE TOPICAL
WEBSITES |
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Topical Website Copyright © 2003
- All Rights Reserved - Document Revised
November 15, 2011
mountains photo image, attorney photo image & law office logo copyright ©
Robert D. Gustafson - all rights reserved -
no copyright claimed to other images
Topical Website Initial Publication Date: February
29, 2004 - Republication Date: May 24, 2006
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Serving Colorado Springs
Area Zip Codes |
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80908 80132 80909 80913 80916 80921 80922 80925 80901 80902 80903 80904 |
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80905 80906 80907 80910 80911 80912
80914 80921 80926 80928 80929 80930 80931 80933 80934 80935 80936 |
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80937 80940 80941 80942 80943 80944 80945
80946 80947 80949 80950 80960 80962 80970 80977 80995 90997 |
Colorado Springs Criminal Defense
Attorney, felony offenses, misdemeanor offenses, petty offenses, domestic
violence, shoplifting, theft, burglary, prostitution, sealing criminal records,
DUI, traffic ticket defense, Colorado trial practice 30+ years, Colorado Springs,
Colorado, attorney, lawyer, criminal defense, felony, misdemeanor, petty
offense, driving under the influence, DUI Colorado Springs, domestic violence
Colorado Springs, traffic ticket, traffic defense, harassment, assault,
menacing, weapon, statute of limitations, deferred sentence, sealing criminal
records, Colorado Springs, criminal defense, felony offense, misdemeanor offense, petty offense, domestic violence, assault, menacing, fighting, violation of a restraining order, criminal mischief, prostitution, pimping, loitering, theft, shoplifting, burglary, impersonation, bad check, embezzlement, drug charges, paraphernalia charges, obstructing a peace officer, lighted materials on highway, obstruction of telephone, wiretapping, eavesdropping, abuse of telephone, gambling, possession of dangerous weapon, concealed weapon, unlawful possession of weapon, prohibited use of weapons, possession of firearm under the influence of alcohol or drugs, intoxication, complicity, accomplice, bail bond, jurisdictional attack, collateral attack, affirmative defenses, surveillance, statute of limitations, speedy trial, deferred sentence, deferred, sentencing, sentence, probation, sealing criminal records, El Paso County, Colorado, court, Colorado Springs Municipal Court, defense lawyer, lawyer, attorney
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