Section 4.28 Motion to Dismiss Indictment, or in the Alternative, for a Bill of Particulars

• Library: Criminal Practice 2012 Supp

F. (§4.28) Motion to Dismiss Indictment, or in the Alternative, for a Bill of Particulars

In the Circuit Court of the County of St. Louis

State of Missouri

State of Missouri )

)

vs. ) Cause No.

)

________________________ ) Division

Defendant. )

Motion to Dismiss the Indictment, or

in the Alternative, for a Bill of Particulars

Comes now Defendant, by and through counsel, and requests that the Court enter an order dismissing the Indictment in this cause because:

1. The Indictment fails to state an offense as required by Rule 23.01(b)(2)–(3);

2. Section 570.080, RSMo Supp. 2004, is unconstitutional in that it, in effect, creates an irrefutable presumption about the admission of other acts or other crimes evidence;

3. The grand jury proceedings in this case were not transcribed, and further, the use of the grand jury in this cause denied Defendant the right to preliminary examination, thus violating [his/her] rights to due process of law and equal protection of law.

Without waiving [his/her] request for dismissal, Defendant prays in the alternative for a bill of particulars.

Suggestions in Support of Motion

1. Upon counsel’s belief and knowledge, it is stated to the Court that beginning in April of 1984, a specially impaneled grand jury in ______________ County, Missouri, began hearing evidence with regard to allegations of auto theft, receiving stolen property, and other associated matters touching on the alleged trafficking in stolen automobiles and parts. As a result of the grand jury proceedings, multiple indictments were handed down, including the three-count indictment that involves Defendant and is the subject of this cause now before the Court.

2. It is Defendant’s belief that the grand jury proceedings in this cause were not transcribed and that this nontranscription was done intentionally as is the practice throughout the State of Missouri. See generally State ex rel. Dunlap v. Hanna, 561 S.W.2d 411 (Mo. App. W.D. 1977). Because there are no transcripts of this proceeding, Defendant is prevented from challenging the grand jury indictment based on any irregularities connected with the grand jury process,[1] and this violates Defendant’s right to due process of law as granted by article I, § 10, of the Missouri Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. Further, because the failure to record the grand jury proceeding in this cause effectively thwarts Defendant’s discovery as is required by Rule 25.03(A)(3), the same failure to transcribe violates Defendant’s rights to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, § 18(a), of the Missouri Constitution. Finally, it is Defendant’s contention that the grand jury proceedings in this cause prevented Defendant from having the benefit of a preliminary examination, thus violating [his/her] rights to equal protection of law and due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, article I, § 10, of the Missouri Constitution, and article I, § 2, of the Missouri Constitution.

3. Because the grand jury proceedings in this cause were not transcribed, it would be impossible to tell if the grand jury was in any way misled. Further, it is Defendant’s contention that, with the multiple defendants involved in this case and the massive investigation, the confusion involved could amount to misleading of the grand jury, thus requiring dismissal of the Indictment. See generally United States v. Estepa, 471 F.2d 1132, 1134–37 (2^nd Cir. 1972); see also United States v. Hogan, 712 F.2d 757 (2^nd Cir. 1983); United States v. Leibowitz, 420 F.2d 39 (2^nd Cir. 1969).

4. It is jurisdictional prerequisite that any judgment or sentence in a criminal case be based on a valid indictment or information setting out all the necessary elements of the offense. See generally State v. Chambers, 550 S.W.2d 846 (Mo. App. W.D. 1977); State v. Clark, 546 S.W.2d 455 (Mo. App. W.D. 1976). See also Missouri Constitution, article I, § 17 (see also article I, § 19...