)

CITY OF SPRINGFIELD, )

Plaintiff, )

) Case No. 398MU0065

Vs. )

)

Robin C. McDermott, )

Defendant )

COMES NOW Robin C. McDermott, defendant, pursuant to Missouri Supreme Court Rule 29.11 (d) requesting this honorable court grant defendant a new trial in the above style case. In support of her request defendant offers the following:

1. The trial court erred in allowing prosecutor to proceed against defendant in charging a non-existent and spurious offense under Springfield City Code 26-17. What the defendant was convicted of is not a crime, but rather constitutionally protected free speech.
2. The trial court erred in failing to instruct the jury in writing as to what Springfield City Code 26-17 says and erred again when the jury requested to see 26-17 and was denied, and erred again when the defendant requested the jury read 26-17, in contradiction to Missouri Supreme Court Rule 27.03. The text of 26-17 had been admitted into evidence and the jury should have had access to that evidence. Had the jury read the City Code, the defendant would have been found to be not guilty.
3. The trial court erred in refusing to allow defendant’s offering of the written United States Supreme Court case of City of Houston v. Hill with regard to its holding concerning "verbal aggression" and city ordinances, but rather allowed itself to be persuaded by plaintiff rattling off cases he claimed had ruling authority over the holding in the Hill case but which when asked by the court could not tell the court the holdings of any of his cited cases and in so doing the defendant’s right to present a viable defense was prevented by the court.
4. The trial court erred in holding instruction conference prior to the close of all evidence. Missouri Supreme Court Rule 28.03 (e) states in relevant part, "at the close of evidence the court shall call a conference of counsel for the purpose of considering instruction and verdict forms." As the court well knows, defendant was not permitted to finish presenting her case or to be fully apprised of the testimony of plaintiff’s rebuttal witness before the court held the instruction conference and thereby significantly prejudiced defendant’s opportunity to request appropriate instructions. Had the instruction conference been held at the correct time, the defendant would have offered additional or different instructions.
5. The trial court erred in denying the defendant’s jury instruction informing the jury that cussing a cop is constitutionally protected free speech and that the standard of "fighting words" is what constitutes a crime. The defendant was denied the opportunity to give the jury a definition of "fighting words".
6. The trial court erred in that the instruction does not comport the offense charged and there is a significant variance between the information and the verdict director. The verdict director enlarges the presumption of guilt beyond an already spurious offense charged in the information in that the information specifies "obstructed officer Royal by verbal aggression" and the verdict director specified "interfered with officers" and equates interference as meaning obstruction and lessens the burden of proof the plaintiff is required to carry.
7. The trial court erred in allowing the jury to remain during sidebar argument over the ambush of defendant by plaintiff with an inadmissible, misrepresented, and ancient past history of defendant that the plaintiff had no right to introduce. It prejudiced the jury in that it caused the jury to assume that the defendant was hiding a criminal history. The court should have declared a mistrial.
8. The trial court erred in prohibiting note taking by jurors stating that the case was not complex enough and then subsequently stating that the court did not know what the case was about. The two statements are not compatible. The fact that at least one juror felt it necessary to take notes in order to keep the facts of the case correctly before him contraindicates the court’s pronouncement.
9. The trial court erred in allowing the plaintiff to question defendant concerning irrelevant, immaterial and inflammatory matters concerning the status of defendant’s employer’s lawsuits. This line of questioning prejudiced the rights of the defendant by creating a negative association with the defendant’s employer’s lawsuit history without establishing any evidentiary grounds to support its relevancy.
10. A new trial should be granted because the prosecutor’s attempted assassination of defendant’s character through plaintiff’s innuendo that she is a doper and all her friends are dopers during the last five minutes of his closing arguments when the defendant had no opportunity to rebut these allegations.
11. The totality of the plaintiff’s case shows an insufficiency of evidence to convict defendant of obstructing officer Royal by verbal aggression in that the state offered no evidence or argument that the defendants language rose to the level of "fighting words". Had the jury been given the language of the information, the language of Springfield City Code 26-17 alongside of the improper jury instruction #7, and in light of the evidence presented by plaintiff, the defendant would have been acquitted.

WHEREFORE defendant prays the court find that defendant was not given a fair trial on 19 and 20 April 99 in this case and is entitled to a new trial and that the court enter its order for same.

Respectfully submitted,

_________________________

Robin C. McDermott

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

1601 North Waverly Avenue

Springfield, MO 65803

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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