PEOPLE'S LEGAL FRONT
BECAUSE THESE ARE NOT THE TRADE SECRETS OF ATTORNEYS
In the Circuit Court of Greene County, Missouri
Associate Division 23
Motion to Dismiss for Failure to State a Charge
City of Springfield,
Robin C. McDermott
|Case No.: 398MU0065
Defendant Robin C. McDermott, pursuant to Rule 21.04 to ask the court to
dismiss for failure to file information against the Defendant that complies
with Rule 23.01(b). In support of her motion, Defendant states:
On May 1st 1998 Prosecutor Ron Dirickson, filed
his "AMENDED INFORMATION" against the Defendant.
The Information fails to state that the Defendant acted "Knowingly
and Willfully" which is an implied necessary element of the crime. Defendant
asserts the City has the burden of proving guilty knowledge or criminal
The Information fails to state a charge in that the claim
of "verbally aggressive" does not constitute "resist or obstruct" which
is a necessary element of 26-17.
The Information fails to characterize the elements of the
offence with sufficient particularity to give notice to the Defendant of
the acts she is alleged to have committed.
The Information is not sufficiently specific so as to determine
the admissibility of evidence.
The Information should state the allegations with reasonable
certainty and the essential facts that constitute each element of the offense
so that the Defendant does not have to guess or speculate as to the meaning
of the allegations.
The Information fails to inform the Defendant of charges
against her so that she can adequately prepare a defense and protect herself
from double jeopardy.
Section 26-17 is overly broad and unconstitutionally vague
in that it lacks explicit standards necessary to avoid arbitrary and discriminatory
application by law enforcement officers, especially in the context of construing
verbalizations as obstruction or resisting officers.
Defendant contends that this case involves selective prosecution
in that the City does not generally charge people under this ordinance
for verbalizations, and that the City has an improper motive in that they
are covering up the misconduct of the officers.
The Information cites City Ordinances 26-17 and 1-7. These
should be City Codes.
These above stated deficiencies prejudice the substantial
rights of the Defendant.
on the case of Kansas City v. Larose, 524 S.W.2d 112 which is a similar
case to this one. In that case the Court upheld a similar Kansas City ordinance
as constitutional even though it didn't contain the language "willfully
and knowingly". However, it did rule that the element of scienter or guilty
knowledge is implied in the ordinance, stating:
"I believe it is implicit in the Kansas City ordinance
that the hindering, obstruction, etc. of the officer be done willfully
and knowingly. Thus there is no conflict between the statute and
the ordinance. I do not believe that a person would be guilty of violating
the Kansas City ordinance and subject to fine or imprisonment if the person
were unwittingly or perhaps carelessly to hinder or obstruct an officer
in the discharge of his official duty by, for example, accidentally or
negligently getting in his way. A person might be driving through an intersection
on a green light and fail to yield the right of way to a police vehicle
chasing a suspect, thereby resulting in a collision with the police vehicle
and the escape of the suspect. I doubt if this would constitute a violation
of the ordinance, although it would under its literal terms. The other
statutes referred to in the majority opinion -- Secs. 557.230-280 and Secs.
557.300-330, RSMo 1969 -- dealing with rescuing or helping prisoners to
escape, do not in terms require criminal intent, but I doubt if we
would sustain convictions under them in the absence of criminal intent."
In State v. McLarty, 414 S.W.2d 315 (Mo. 1967), we had
for consideration the words of the statute against tampering with an automobile,
Sec. 560.175(1), RSMo 1969, which provides: "No person shall drive, operate,
use or tamper with a motor vehicle without the permission of the owner
thereof." The statute says nothing about criminal intent, knowledge,
or willfulness. Yet we held that criminal intent was an essential element
of the offense proscribed, even though punishment therefor could
be as little as a $1 fine or a day in jail. See also Davis v. State, 499
S.W.2d 445 (Mo. banc 1973) and State v. Tate, 436 S.W.2d 716 (Mo. 1969).
Similarly here I do not believe the Kansas City ordinance applies regardless
of intent. Interfering with a police officer in the performance of
his duty involves an aspect of moral turpitude or wrongdoing accompanied
by guilty knowledge or intent. It is not the same as a parking
or speed limit violation, where no criminal intent need be shown.
In her verbal disagreement with the officer over a difference
of opinion as to his right to execute an illegal search on her vehicle
without a warrant or consent, the Defendant affirmatively denies that her
intention was to obstruct or resist an officer executing his lawful duties.
The City has the burden of proving guilty knowledge and criminal intent.
The City has
the burden of proof to show that "verbally aggressive" constitutes "resist
or obstruct". No where in the ordinance does it state that verbal aggression
is an element of this offense. If this case were permitted to be prosecuted,
the City could arrest and convict anyone of saying anything that the City
doesn't like. This would be a violation of free speech rights. It raises
the question as to what forms of free speech constitutes obstruction. The
City should be required by this Court to somehow connect the verbalizations
to obstruction before a trial can proceed.
on the basis that the Information is defective in that it fails to state
a charge and to fully inform the Defendant of the offense of which she
stands charged, this court lacks jurisdiction to prosecute the Defendant.
The Defendant is being denied due process of law and therefore the Defendant
prays for the Court to dismiss.
Robin C. McDermott on 11/06/1998
Self Help Law Library
Case Law $7/Month 50 States + Fed
I use this service.
We push the limits on discount hosting!