)

CITY OF SPRINGFIELD, )

Plaintiff, )

) Case No. 398MU0065

Vs. )

)

Robin C. McDermott, )

Defendant )

COMES NOW Robin C. McDermott, defendant, pursuant to Missouri Supreme Court Rule 27.07 (c) and moves this honorable court to enter judgement of acquittal in the above styled cause. In support of her motion defendant offers the following:

1. The information under which defendant was tried and convicted by a jury on 20 April 99 fails to allege an offense under Springfield City Code 26-17 in that "verbally aggressive" does not rise to the level of "fighting words" and is therefore constitutionally protected free speech and not a crime. However, in every single case it is universally held that cussing a cop is not a crime, and that every time this is brought before the court of appeals and to the United States Supreme Court it is overturned, every time.

The United States Supreme Court in Chaplinsky v. New Hampshire 315 US 568 (1942); Gooding v. Wilson 405 US 518, 522 (1972); Lewis v. New Orleans 415 US 130 (1974) and specifically in City of Houston V. Hill 107 S.Ct. 2502,2508 (1987) held in part that:

"A municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his duty is substantially overbroad and therefore invalid on its face under the First Amendment. The ordinance in question criminalizes a substantial amount of, and is susceptible of regular application to, constitutionally protected speech, and accords the police constitutional enforcement discretion, as is demonstrated by evidence indicating that, although the ordinance’s plain language is violated scores of times daily, only those individuals chosen by police in their unguided discretion are arrested."

Further references in support of defendant’s position are included in these Missouri cases: City of Maryville v Costin 805 SW 2^nd 331 (1991); State v. Swoboda, 658 SW 2^nd 24,25 (Mo. Banc 1983); City of St. Louis v. Tinker 542 SW 2^nd 512 (1976); City of Kansas City v. Thorpe 499 SW 2^nd 454 (1973) State v Madsen 772 SW 2^nd 656, 659 (1989), City of St. Louis v Slapsky 254 MO 309, 152 SW 2^nd, 155, 157 (1913)

The defendant has given this court numerous cases indicating that the "fighting words" standard must be met. This case should never have come to trial and information should never have been issued on a charge that is clearly established to be constitutionally protected free speech. The defendant finds it disturbing that this court fails to recognize the rulings of the United States Supreme Court, the Supreme Court of Missouri or the courts of appeals and believes this failure rises to abuse of discretion.

2. The State’s witnesses all testified that they did not become angry at the defendant as a result of her cussing them and thus by the testimony of the State’s own witnesses, the cussing by the defendant did not rise to the level of "fighting words" as defined by Black’s Law Dictionary.
3. The defendant was brutally attacked by police officers who testified under oath that they brought a dog to the defendants home that they knew was a vicious and dangerous beast. One officer testified that he was afraid of this dog. The officer told the defendant that the dog would attack her, and the dog in fact did attack her. The officer testified that he failed to secure the dog before making the arrest and that he described that decision as "optional" indicating that he chose not to prevent the defendant from being exposed to danger. They then testified that the dog bit her, that the dog was ordered down, and yet bit her again after being ordered down.

Clearly from the sworn testimony from the three officers the City is liable to the defendant for that dog attack. The defendant contends that she is being prosecuted for the non-crime of cussing a police officer as a means of harassing and intimidating her from suing the city over the attack. The defendant asks that this court recognize this and refuse to participate in a cover-up of criminal conduct on the part of the police department.

4. In contradiction to Missouri Supreme Court rule 28.02 (e) the court held instruction conference prior to the close of the evidence, substantially prejudicing the defendant by denying defendant due process rights to submit further requests for instructions or to competently object to plaintiff’s verdict directing instruction at the end of all testimony as provided by this rule and proper procedure.
5. In contradiction to Missouri Supreme Court rule 70.02 (f) this court refused to give instructions on the law governing the case either by reading Springfield City Code 26-17 to the jury or through offering it in writing even after this was requested by both the jury and the defendant and over defendant’s objection.
6. The court failed to send the written instructions with the jury at the time they began deliberations thereby permitting an unguided and uninformed discussion of the case amongst the jurors.
7. Plaintiff’s verdict directing jury instruction (marked #7) does not comply with the information filed against defendant and enlarges to a presumption of defendant’s guilt beyond the information and in contradiction to the evidence presented at trial. Specifically, the information charges that defendant obstructed officer Royal by becoming verbally aggressive. Instruction #7 states that defendant "interfered with an investigation by becoming verbally aggressive toward the officers." Officer Whisnant’s testimony was that he remained in his patrol car interrogating his arrestee until the arrest of defendant was commenced by officer Royal. Officer Wilson’s testimony was that he stood back away from the police canine and watched from the location near officer Whisnant’s patrol car until the arrest of defendant was commenced by officer Royal. Both of these officers’ testimony shows that neither was moved to arrest defendant for either obstructing or interfering with them, by any means, in their performance of duty imposed upon them by law, nor was this charged against defendant in the information. This constitutes a fatal variance in that the information deprived the defendant of sufficiently specific information to prepare a defense and to be protected against surprise at trial.

WHEREFORE, the defendant prays this honorable court move to enter a judgement of acquittal in this case and that defendant be free of further prosecution of the matter.

Respectfully submitted,

____________________________

Robin C. McDermott

1601 North Waverly Avenue

Springfield, MO 65803

I hereby certify that the forgoing motion was served upon Ron Dirickson, Assistant City Attorney by fax delivery on May 4, 1999.

So certified: _____________________________

Robin C. McDermott

Take notice that the foregoing motion will be called before the court for hearing on May 10, 1999 at 9:30 A.M. or as soon thereafter as defendant may be heard.

So noticed: _____________________________

Robin C. McDermott

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