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Plaintiff Attorney

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Defendant Attorney

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The Jurisdiction of the Court is bestowed upon the court by some statute or some rule of the court.

COMES NOW Robin C. McDermott, defendant, and objects to City of Springfield's Motion to Quash defendants Subpoena Duces Tecum. Defendant will address the Plaintiff's enumeration of arguments in like fashion.

Here is where you put your argument.

Defendant delivered a completed, Court dated, signed and sealed Subpoena Duces Tecum to the process server's office in the Sheriff's Department office of the Judicial Courts Building on July 6, 1998, copy retained by defendant.

The videotape from Office Darren Whisnant's patrol car is relevant to charge of obstructing officer T. D. Royal as it will tend to substantiate defense position that the search made was not lawful and not incident to arrest and request for videotape is not unreasonable and the only oppression to be suffered is of defendant's right to due process of law through this proposed obstruction by plaintiff.

The City admits to lack of knowledge of any other videotapes made from any other police vehicle present.

The production of dispatch and communications logs is not unreasonable as these will provide the names of the other officers present at the scene of the alleged offense that may be unknown to the City's prosecutor but are material witnesses nonetheless and could be identified and accounted for by review of these dispatch and communication logs. Request for production of materials therefore is not oppressive but informative as they should also show that defendant attempted to elicit supervisory guidance from the duty sergeant. Witnesses of the police department not yet named would also be able to testify to defendant's continued attempt to elicit supervisory authority over these officers.

Defense asserts there are unnamed officer who were present at the scene of the alleged offense that are known to the Springfield Police Department witnesses for the plaintiff that should be contained in the dispatch and communications logs which this Court ruled to be preserved on April 30, 1998. The defendant asks that these materials be produced to inform both plaintiff and defendant of the other material witnesses of this case and for Court inspection and orders.

Plaintiff knows or should know that the report of officer Darren Whisnant was not disclosed to defendant until open Court on July 10, 1998.

To defendant's knowledge, plaintiff has raised no Subpoena Duces Tecum for any materials, including any material related to the documentation of complaints and disciplinary actions taken against Springfield Police Officer Thomas Dean Royal. Defendant, however, has issued such an instrument which has been disobeyed.

Defendant asserts that production of this material for the Court to inspect and make orders upon is neither unreasonable nor oppressive in that as Lee vs. State 573 SW 2nd 131 provides, " the duty rests upon the prosecutor to disclose any exculpatory evidence bearing upon the guilt or innocence of the defendant, and that duty extends to disclosing evidence of an impeaching nature which would tend to cast discredit upon key prosecution witnesses."

Defense maintains that officer T.D. Royal has shown through prior involvements with defendant a consistent lack of regard for the laws governing the people he is paid to protect and serve which has resulted in cases brought before the Courts that were neither provable nor proved, and that this case is yet another incident in which officer T. D. Royal has sought to circumvent due process of law, on January 23, 1998 at approximately 1:20 a.m. when he performed a warrantless search of a vehicle, unoccupied, and parked on private property after being told that he did not have permission to conduct a warrantless search on private property. Officer T. D. Royal completed his search nonetheless, discovering no evidence of a crime as evidenced by his own report, and then Officer T.D. Royal arrested Defendant for obstruction. In State ex rel Chassaing vs. Murmmert 887 SW 2nd 573: "prosecutors do not represent individual people but represent people of the State (City) including criminal defendants. Prosecutors duty is not to seek convictions at any cost but to see that justice is done and that the defendant receives a fair and impartial trial." Plaintiff cites authority for closure of complaints and disciplinary documentation on its key witness as Section 610.021, RSMo, and City of Springfield Merit System Rule 15.4 which City states is a City Ordinance. Defense directs the Court to subparagraph (3) "However any vote on a final decision, when taken by a public governmental body, to hire, fire, promote or discipline an employee of a public governmental body must be made available to the public within seventy-two hours of the close of the meeting where such action occurs provided, however, that any employee so affected shall be entitled to prompt notice of such decision during the seventy-two hour period before such decision is made available to the public." Plaintiff fails to identify which City Ordinance is City of Springfield Merit System Rule 15.4 and defense requests a full citation of this authority be provided to defendant by plaintiff as these are not the trade secrets of attorney's but apparently the rules we must all live by.

Prosecutor's recognition of the civil liability of the City of Springfield in this action applied an improper bias and facilitates denial of due process to defendant in this action. While the plaintiff's attorney would seek to minimize the seriousness of the charge while reminding the Court that this is an ordinance violation, defendant does not take the impact of these charges lightly, nor of the penalties associated with conviction and prays this honorable Court to instruct the prosecutor on his proper duty.

Defendant would amend request for materials in Subpoena Duces Tecum as follows: A) The complaints and disciplinary actions taken against Officer T. D. Royal for the purpose of impeachment of this witness. B) The videotape from Officer Darren Whisnant's patrol car while parked in front of 1601 North Waverly Avenue on January 23, 1998 between 1 a.m. and 2 a.m. C) The dispatch and communications logs containing the names of all Springfield Police Officers present at the time of the charged incident.

WHEREFORE Defendant prays this honorable Court order the City of Springfield by and through its prosecuting attorney quit from its motion to quash the Subpoena Duces Tecum properly issued and delivered for service on the Chief of Police and to make it's own command that these materials be produced for the Court to inspect and make such orders as it deems to be lawfully in the interest of justice.

Respectfully Submitted,

CERTIFICATE OF SERVICE

I hereby certify this pleading was served upon all attorneys of record for each of the parties to this action and All parties not represented by counsel, in the following manner:
___ By delivering a copy to him/her;
___ By leaving a copy at his/her office with the clerk;
___ By leaving a copy at his/her office with an attorney associated with him/her;
___ By mailing a copy to him/her, as prescribed by law;
___ By faxing a copy to him/her.

NOTICE OF HEARING

The foregoing pleading will be called for hearing before the court on at 1 pm or as soon thereafter as petitioner may be heard. So noticed: _______________________________

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