LAWS MOTIONS LINKSCITY OF
SPRINGFIELD,
)
Plaintiff,
;
)
;
)
vs.
) Case No. 398MU0065
;
)
Robin C.
McDermott,
;
)
Defendant
)
DEFENSE OBJECTION TO PLAINTIFF'S MOTION TO QUASH DEFENDANT'S SUBPOENA DUCES TECUM
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.
1) 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.
2) 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.
3) The City admits to lack of knowledge of any other videotapes made from
any other police vehicle present.
4) 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.
5) 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.
6) Plaintiff knows or should know that the report of officer Darren Whisnant
was not disclosed to defendant until open Court on July 10, 1998.
7) 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. 8) Chief of
Police Lynn Rowe is the Chief of Police and all requested materials should
be available to him from his subordinates.
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.
____________________
Robin C. McDermott
1601 North Waverly Avenue
Springfield, MO 65803
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