MaryJane Duchene MotionDismissCit3-441797

8/9/2019 MaryJane Duchene MotionDismissCit3-441797

1/24

State of Minnesota District Court

County of Dakota First Judicial District

Notice of Motion and Motion to

City of West St. Paul, Plaintiff, Vacate and Reverse in Part and/or

Alternate Motion for an Amendedvs. Valid Complaint or Dismissal

Mary Jane Duchene, Defendant Court file: 19WS-CR-09-15734

Citation no. 3-441797

TO: Judge Perkins and WSP City Prosecutor

Herewith the undersigned moves that the portion of the January 14, 2010

order of Judge McManus, refusing to order that the prosecution make specific

accusation in the long form complaint, be vacated and reversed, or in the

alternative that a motion compelling the prosecution to make a separate

statement of fact in the long form complaint that substantiated the criminal

charges in the above entitled matter, on the following grounds:

1. THE MINNESOTA RULES OF CRIMINAL PROCEDURE -

REGARDING COMPLAINTS, REQUIRES THAT THE PROSECUTION

PRODUCE A VALID COMPLAINT THAT INCLUDES A STATEMENT OF

THE BASIC FACTS RELIED UPON TO SUPPORT A CONVICTION,

SEPARATE FROM A STATEMENT OF PROBABLE CAUSE, AND THE

COMPLAINT FILED BY THE PROSECUTION IN THIS CASE CONTAINS

Notice of Motion and Motion Vacate and Reverse in Part and/or Alternate Motion for an Amended Valid

Complaint or Dismissal Page 1


2/24

NO STATEMENT OF FACT, ONLY A STATEMENT OF PROBABLE

CAUSE WITH SPECULATION THAT AN OFFENSE WAS COMMITTED

BY THE DEFENDANT, AND THESE RULES REQUIRE THAT THE

COMPLAINT BE DISMISSED UNLESS THIS DEFECT CAN BE CURED

IN SEVEN DAYS BY AN AMENDED COMPLAINT:

By Rule 2.01 the complaint shall consist of a written signed statement ofthe essential facts constituting the offense charged. This language is

taken from F.R.Crim.P. 3. (Present Minnesota statutory law (Minn. Stat

629.42, 633.03 (1971)) simply provides for the complaint of an offenseto be reduced to writing, but does not specify what the complaint shall

contain.) The complaint shall otherwise conform to the provisions of

Rules 17.02, 17.03. Minn. Stat. 487.25, subd. 3; 488A.10, subd. 3,and 488A.27, subd. 3 govern the procedure for the issuance of complaints

in the County Courts, Hennepin County Municipal Court and St. Paul

Municipal Court, respectively, but also do not specify what the complaintshall contain.

Rule 17.02 Nature and Contents

Subd. 1. Complaint. A complaint shall be substantially in theform prescribed by Rule 2.

Subd. 2. Indictment. An indictment shall contain a written

statement of the essential facts constituting the offense charged. It shall

be signed by the foreperson of the grand jury.Subd. 3. Indictment and Complaint. The indictment or complaint

shall state for each count the citation of the statute, rule, regulation or

other provision of law which the defendant is alleged to have violated.Error in the citation or its omission shall not be ground for dismissal or

for reversal of a conviction if the error or omission did not prejudice the

defendant. Each count may charge only one offense. Allegations madein one count may be incorporated by reference in another count. An

indictment or complaint may, but need not, contain counts for the

different degrees of the same offense, or for any of such degrees, or




3/24

counts for lesser or other included offenses, or for any of such offenses.

The same indictment or complaint may contain counts for murder, andalso for manslaughter, or different degrees of manslaughter. When the

offense may have been committed by the use of different means, the

indictment or complaint may allege in one count the means of committingthe offense in the alternative or that the means by which the defendant

committed the offense are unknown.Subd. 4. Bill of Particulars. The bill of particulars is abolished.

Subd. 5. Indictment and Complaint Forms--Felony and Gross

Misdemeanors. For all indictments and complaints charging a felony or

gross misdemeanor offense the prosecuting attorney or such judge orjudicial officer authorized by law to issue process pursuant to Rule 2.02

shall use an appropriate form authorized and supplied by the State CourtAdministrator or a word processor-produced complaint or indictment

form in compliance with the supplied form and approved by InformationSystems Office, State Court Administration. If for any reason such formis unavailable, failure to comply with this rule shall constitute harmless

error under Rule 31.01.

Rule 17.06 Motions Attacking Indictment, Complaint or Tab ChargeSubd. 1. Defects in Form. No indictment, complaint or tab

charge shall be dismissed nor shall the trial, judgment or other

proceedings thereon be affected by reason of a defect or imperfection inmatters of form which does not tend to prejudice the substantial rights of

the defendant.Subd. 2. Motion to Dismiss or for Appropriate Relief. All

objections to an indictment, complaint or tab charge shall be made by

motion as provided by Rule 10.01 and may be based on the following

grounds without limitation:(1) Indictment.

(a) The evidence admissible before the grand jury was notsufficient as required by these rules to establish the offense charged orany lesser or other included offense or any offense of a lesser degree;

(b) The grand jury was illegally constituted;

(c) The grand jury proceeding was conducted before fewer than 16grand jurors;




4/24

(d) Fewer than 12 grand jurors concurred in the finding of the

indictment;(e) The indictment was not found or returned as required by law;

(f) An unauthorized person was in the grand jury room during the

presentation of evidence upon the charge contained in the indictment orduring the deliberations or voting of the grand jury upon the charge.

(2) Indictment, Complaint or Tab Charge. In the case of anindictment, complaint or tab charge:

(a) The indictment, complaint or tab charge does not substantially

comply with the requirements prescribed by law to the prejudice of thesubstantial rights of the defendant;

(b) The court lacks jurisdiction of the offense charged;

(c) The law defining the offense charged is unconstitutional orotherwise invalid;

(d) In the case of an indictment or complaint, that the facts stated

do not constitute an offense;(e) The prosecution is barred by the statute of limitations;

(f) The defendant has been denied a speedy trial;

(g) There exists some other jurisdictional or legal impediment toprosecution or conviction of the defendant for the offense charged,

except as provided by Rule 10.02;

(h) Double jeopardy, collateral estoppel, or that prosecution is

barred by Minn. Stat. 609.035.

Subd. 3. Time for Motion. A motion to dismiss the indictment,

complaint or tab charge shall be made within the time prescribed by Rule

10.04, subd. 1 except that an objection to the jurisdiction of the court over

the offense or that the indictment, complaint or tab charge fails to chargean offense may be made at any time during the pendency of the

proceeding.Subd. 4. Effect of Determination of Motion to Dismiss.

(1) Motion Denied. If a motion to dismiss the indictment,complaint or tab charge is determined adversely to the defendant, thedefendant shall be permitted to plead if the defendant has not previously

pleaded. A plea previously entered shall stand. The defendant in a

misdemeanor case may continue to raise the issues on appeal ifconvicted following a trial.




5/24

(2) Grounds for Dismissal. When a motion to dismiss an

indictment, complaint or tab charge is granted for a defect in theinstitution of prosecution or in the indictment, complaint or tab charge,

the court shall specify the grounds upon which the motion is granted.

(3) Dismissal for Curable Defect. If the dismissal is for failure tofile a timely complaint as required by Rule 4.02, subd. 5(3), or for a

defect that could be cured or avoided by an amended or new indictment,or complaint, further prosecution for the same offense shall not be

barred, and the court shall on motion of the prosecuting attorney, madewithin seven (7) days after notice of the entry of the order granting the

motion to dismiss, order that defendant's bail or the other conditions ofhis release be continued or modified for a specified reasonable time

pending an amended or new indictment or complaint.

In misdemeanor cases, if the defendant is unable to post any bail

that might be required under Rule 6.02, subd. 1, then the defendant mustbe released subject to such non-monetary conditions as the court deems

appropriate under that rule. The specified time for such amended or new

indictment or complaint shall not exceed sixty (60) days for filing a newindictment or seven (7) days for amending an indictment or complaint or

for filing a new complaint. During the seven-day period for making the

motion and during the time specified by the order, if such motion is made,dismissal of the indictment or complaint shall be stayed. If the

prosecution does not make the motion within the seven-day period or if

the indictment or complaint is not amended or if a new indictment orcomplaint is not filed within the time specified by the order, the defendant

shall be discharged and further prosecution for the same offense shall be

barred unless the prosecution has appealed as provided by law, or unlessthe defendant is charged with murder and the court has granted a motion

to dismiss on the ground of the insufficiency of the evidence before thegrand jury. In misdemeanor cases and also in designated gross

misdemeanor cases as defined in Rule 1.04(b) dismissed for failure to file

a timely complaint within the time limits as provided by Rule 4.02 subd.5(3), further prosecution shall not be barred unless additionally a judge or

judicial officer of the court has so ordered.

2. THAT SUPPORTING THIS MOTION IS AN EXPERT REPORT




6/24

THAT SHOWS THAT THE POLICEWOMAN COULD NOT HAVE HEARD

A DOG BARKING FROM THE DEFENDANTS RESIDENCE AT 1144

OTTAWA BECAUSE OF THE DISTANCE THE POLICE WOMAN

CONCEDES (WHEN SHE SAYS SHE LISTEN FOR FIVE MINUTES IN

HER SQUAD CAR) SHE WAS AT FROM THAT RESIDENCE AND THE

WINDY AND STORMY WEATHER CONDITIONS, AND THAT THE

POLICE WOMANS IMMEDIATE ASSUMPTION AND SPECULATION

THAT THE ALLEGED BARKING DOG NOISE CAME FROM THE

DEFENDANTS RESIDENCE AT 1144 OTTAWA WAS ERRONEOUS,

AND FAILED TO CHECK WHETHER OTHER DOGS, CLOSER TO THE

POSITION OF THE POLICE OFFICER, IN THE NEIGHBORHOOD

WERE BARKING.

3. The undersigned is filing this as, Mr. Morreim, from the Public

Defenders Office, may need to be a witness.

Respectfully submitted:

MARCH 16, 2010

Mary Jane Duchene, BA, BS1144 Ottawa Avenue

West St,. Paul, MN 55118

Fax: 651 457 4376




7/24

State of Minnesota District Court

County of Dakota First Judicial District

Memorandum Supporting

Notice of Motion and Motion to

City of West St. Paul, Plaintiff, Vacate and Reverse in Part and/orAlternate Motion for Amended

vs. Valid Complaint

Mary Jane Duchene, Defendant Court file: 19WS-CR-09-15734

Citation no. 3-441797

FACT

1. ATTACHED HERETO IS EXHIBIT 1 WHICH IS THE CLAIM BY

THE PROSECUTOR THAT THE WITNESS FOR THE PROSECUTION

CANNOT REMEMBER BASIC FACTS OF THIS CASE WHICH

SUGGESTS THAT THE PROSECUTION CANNOT AMEND THE

COMPLIANT AND STATE THE BASIC FACTS.

2. ATTACHED HERETO IS IS EXHIBIT 2 WHICH IS THE

TECHNICAL/SCIENTIFIC REPORT OF MR. G L GROVE, WHICH

SHOWS THAT THE POLICE WOMAN INVOLVED WAS EITHER

MISINFORMED OR UNINFORMED IN MAKING THE ASSUMPTION

THE SHE HEARD DOG NOISE COMING FROM 1144 OTTAWA, FROM

HER POSITION IN HER SQUAD CAR, THREE HOUSE TO THE SOUTH

OF 1144 OTTAWA.




8/24

Respectfully submitted:

MARCH 16, 2010

Mary Jane Duchene, BA, BS

1144 Ottawa AvenueWest St,. Paul, MN 55118

Fax: 651 457 4376




9/24



EXHIBIT 1


10/24




11/24




12/24



EXHIBIT 2


13/24




14/24




15/24




16/24




17/24




18/24




19/24




20/24




21/24




22/24




23/24




24/24


Documents

MaryJane Duchene MotionDismissCit3-441797