State of Minnesota County of Dakota

City of West St. Paul, Plaintiff, vs. Mary Jane Duchene, Defendant

District Court First Judicial District

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

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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 of the 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 offense to 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 complaint shall contain. Rule 17.02 Nature and Contents Subd. 1. Complaint. A complaint shall be substantially in the form 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 made in 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
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counts for lesser or other included offenses, or for any of such offenses. The same indictment or complaint may contain counts for murder, and also 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 committing the 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 or judicial officer authorized by law to issue process pursuant to Rule 2.02 shall use an appropriate form authorized and supplied by the State Court Administrator or a word processor-produced complaint or indictment form in compliance with the supplied form and approved by Information Systems Office, State Court Administration. If for any reason such form is unavailable, failure to comply with this rule shall constitute harmless error under Rule 31.01. Rule 17.06 Motions Attacking Indictment, Complaint or Tab Charge Subd. 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 in matters 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 not sufficient as required by these rules to establish the offense charged or any 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 16 grand jurors;
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(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 or during the deliberations or voting of the grand jury upon the charge. (2) Indictment, Complaint or Tab Charge. In the case of an indictment, 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 the substantial rights of the defendant; (b) The court lacks jurisdiction of the offense charged; (c) The law defining the offense charged is unconstitutional or otherwise 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 to prosecution 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 charge an 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, the defendant 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 if convicted following a trial.
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(2) Grounds for Dismissal. When a motion to dismiss an indictment, complaint or tab charge is granted for a defect in the institution 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 to file 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, made within 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 of his 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 must be 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 new indictment 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 or complaint 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 unless the defendant is charged with murder and the court has granted a motion to dismiss on the ground of the insufficiency of the evidence before the grand 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

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THAT SHOWS THAT THE POLICEWOMAN COULD NOT HAVE HEARD A DOG BARKING FROM THE DEFENDANT’S 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 WOMAN’S IMMEDIATE ASSUMPTION AND SPECULATION THAT THE ALLEGED BARKING DOG NOISE CAME FROM THE DEFENDANT’S 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

Defender’s Office, may need to be a witness. Respectfully submitted: MARCH 16, 2010

Mary Jane Duchene, BA, BS
1144 Ottawa Avenue West St,. Paul, MN 55118 Fax: 651 457 4376

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State of Minnesota County of Dakota

District Court First Judicial District

City of West St. Paul, Plaintiff, vs. Mary Jane Duchene, Defendant

Memorandum Supporting Notice of Motion and Motion to Vacate and Reverse in Part and/or Alternate Motion for Amended Valid Complaint
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.

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Respectfully submitted: MARCH 16, 2010

Mary Jane Duchene, BA, BS
1144 Ottawa Avenue West St,. Paul, MN 55118 Fax: 651 457 4376

Notice of Motion and Motion Vacate and Reverse in Part and/or Alternate Motion for an Amended Valid Complaint or Dismissal Page 8

EXHIBIT 1

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EXHIBIT 2

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