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IN THE SUPREME COURT OF MISSOURI
State of Missouri,                                                                  )
Michael P. Hutchings, attorney                                           )
Plaintiff/Respondent                                       &nbs p;                     )     Circuit Court No.Cr 495-338 Mx
                                                                                       &nb sp;        )    Court of Appeals No. 21211-1
            vs.                                                                              )     Supreme Court No. _________
Lee Allen Martin, Pro Se                                           & nbsp;         )
Defendant/Appellant                                         ;                     )
APPLICATION FOR TRANSFER AND SUGGESTIONS IN SUPPORT

        COMES NOW the defendant/appellant Lee Allen Martin, pursuant to Missouri Supreme Court Rule 30.27 and 83.03 does hereby request of this honorable court that a transfer be granted to examine the issues of denial of due process of law in the courts of the State of Missouri. The appellant asks that review of appellate court decision dated 2/9/98 on grounds that the appellate court was (1) That the Missouri courts lack jurisdiction because they are unable to maintain an accurate record. (2) The Missouri Courts are biased to the extent that they deny substantial due process of law. These appellate court issues presented in its order and memorandum dated 2/9/98 did contradict appellate and supreme court rulings, and failed to address all the issues presented in the appellantís brief. The appellant/defendant presents this analysis for the Supreme Court as follows:

  1. The trial court is not a court of record because it is unable to keep and protect an official record. The Appellant Court in its memorandum dated 2/9/98 notes that a court of record is bestowed by statute 476.010 RSMo without noting that the said statute makes it incumbent on the clerk to make true and accurate records. The Appellant believes that the Appellant Court decision is in conflict with Missouri court rulings Barrett V. Farris, Mo.,, 264 SW 363, 366 [2], State of Missouri V. West 270 SW 279, State of Missouri V. Cockwell 217 SW 524, Further, the Missouri Courts have found the importance of appellant review on a full, fair, and complete transcript. In Jackson v State of Missouri 514 SW 2nd 532, as well as State of Missouri v Brown 690 SW 2nd 161. And that the Appellant Court Memorandum is incorrect in ruling that the circuit courts of the state of Missouri have no responsibility in the verity of the official record. The Courtís Clerk Handbook , and the Manual on Sound Recording Proceedings compiled and maintained by the Court Administratorís Office have not been followed in this instance, as has been noted in the appellant brief. Appellant must ask the Supreme Court of the State of Missouri to transfer and review the Appellant Court decision because the transcript is not a factual representation of the proceedings before the trial court, and all noted mistakes does deny a defendant due process. However, if the Courts of the State of Missouri do want to believe that the record does meet absolute verity then the appellant/defendant presents the following documented points that were incorrectly ruled on by the appellant court.
2) The Appellate Court did deny due process of law in the following instances as presented to the appellant court and incorrectly ruled on.
  1. The Appellant court incorrectly applied State v Davis 903 SW 2d 930, 936, and Barker v. Wingo407 US 514, 530, 92 SCt 2182, 2192, 33 L. Ed. 2d 101, in that the criteria set down by the US Supreme Court deals with the delays caused by the defendantís own motions to prepare for trial. However, the appellant believes these do contradict RSMo 545.780 in that after a defendant requests a fair and speedy trial and declares ready trial should be set at the earliest possible date. As noted in State of Missouri v Hobbs 826 SW 2nd 851, 853, State of Missouri v Knox 697 SW 2nd 261, 262 [5]. Since the delay of 118 days was brought on by the trial judge by setting court date according to the calendar of the public defender who at no time represented the defendant, can not be attributed to the appellant/defendant and is contrary to the above citations. And the prejudicial effect of allowing the state to produce evidence the day before trial that was never presented to the defendant and was thus ambush does and did deny the defendant due process. The trial judge should not be a tool of the state, as well the public defender should never be used as a means to delay justice. For justice delayed is justice denied, Magna Carta.
  2. The Appellant Court improperly ruled in its memorandum of 2/9/98 that the proposed jury instruction MAI Ė CR 3 rd 308.16 Belief in Legality of Conduct is improper. The appellant court noted in the memorandum that the appellant/ defendant admitted to knowing his license was revoked. The appellant/ defendant at no time ever testified and any statement as to knowledge of a revocation of a driverís license on the part of the defendant is taken out of context, and in violation of Missouri Supreme Court Rule. Further, to rule that said instruction was improper is in contradiction to other Missouri court rulings in that State of Missouri v Miller 677 SW2nd 938 specifically states that Belief in Legality of Conduct is a defense in driving while revoked and at the time the appellant notified the trial court the issue of the beliefs of the defendant became issues of fact and the domain to the jury and not the trial judge. State of Missouri v Horst 729 SW 2nd 30, State of Missouri v Merritt 833 SW 2nd 4.
  3. The Appellate Court memorandum date 2/9/98 incorrectly applied State of Missouri v. Tyler 440 SW 2nd 470, 474 in that Tyler decision does not allow any participation by the trial judge in plea agreements without the representation of the defendant being present, and since the defendant at no time was represented by anyone other than himself to have the trial judge knowingly participating in discussions with the prosecuting attorney and public defender without the presence of the defendant is prohibited the prejudice to which allowed the defendant to be sentenced for proclaiming his innocence and not the crime. Mo. S. CT Rule 24.02(d), 37.58, Plunkett v Plunkett 757 SW 2nd 288, Grant v State of Missouri 700 SW 2nd 170.
  4. The Appellant Court failed to address the fact that the trial judge in opposition to Washington v State of Texas 87 S. CT. 1920, and RSMo 490.150, 490.140, did not allow the defendant to attack the credibility of the Expert witness. David Nanaman.
  5. The Appellate Court failed to address the issue of involving an attorney ,public defenderís office, contrary to RSMo 600.051, Local Rule 21.2, Faretta v California 95 S. CT. 2525.
  6. The Appellant Court did fail to note the prejudice of failing to impanel an impartial cross section of the community and misrepresenting a juror in this case. Art. 1 Sec. 22(a) of the Missouri Constitution provides for a fair and impartial jury derived from a cross section of the community, as established by State of Missouri v Williams 659 SW 2nd 778, and U.S. V Potter 552 F 2nd 901, and as to misrepresentation of a juror Mo. Constitution Art. 1 Sec. 22 (a) , as maintained in Piehlor v Kansas City Public Service Co. 211 SW 2nd 459, Lee v Baltimore Hotel Co. 136 SW 2nd 695, 698, 66 C.J.S. sec 23.
  7. The Appellant Court did fail to address the issue of the state of Missouri denying the pro se defendant any access to the rules of the court even after the request of the defendant in violation to the U.S. Constitution Amendments V, VI, XIV, and Missouri Constitution Art. 1 Sec. 18 (a).
  8. The appellant court did fail to review the appellants brief in the totality, but rather, chose to view singular points as to prejudice which is contrary to Glenn Vs State of Missouri 341 F. Supp. 1055.
        In conclusion, the appellant/defendant must ask for transfer to the Missouri Supreme Court for a determination of the due process issues presented in the appellant brief that was incorrectly cited by the appellate court and the issues, which were never addressed by the appellate court. Further, the inability of the Courts of the state of Missouri to provide a record that does speak absolute verity is to deny any symbol of due process of law and therefore must be reviewed by the Supreme Court of the State of Missouri.

                                          &nb sp;                              ________________________________

                                          &nb sp;                                  Lee Allen Martin - Defendant - 3/12/98

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