Before The Circuit Court of Boone County Missouri.
City of Columbia, Missouri )
Plaintiff )
)
vs. ) Case # MU0197-055121MR
) Alleged First Degree Trespassing
Martin Lindstedt )
Defendant )
MOTION FOR NEW TRIAL
COMES NOW Martin Lindstedt, Defendant, under provision of Missouri
Rules of Court, Rule 29.11(d) to ask that this Court set aside
Defendant’s fraudulent conviction of First Degree Trespass by jury,
verdict having been reached January 15, 1998 and the jury dismissed,
and to grant a new trial. Both the material facts and the law as
written demand that Defendant be acquitted for this trumped-up charge,
as it was through abuse of legal process by both this Court and the
City of Columbia Prosecutor acting in collusion that this invalid
verdict was derived. The misconduct of this Court and the City
Prosecutor to bring about the desired verdict of guilty shall be
covered as best a possible in this, Defendant’s Motion for New Trial,
of which Defendant was granted an additional 10 days by this Court to
make this motion for new trial.
If or when this Motion for New Trial is granted, this trial should
take place with a different, unbiased judge in a different venue. The
past misconduct before and during trial illustrate that both Court and
Columbia City Prosecutor cannot be entrusted to act in complete
neutrality and within the scope of their functions, preferring to run
in collusion a conviction mill. Thus rather than afford new
opportunities for misconduct, it would be far better to split up both
Judge Bryson and City Prosecutor McKenzie and have a new trial outside
Boone County.
Reasons of Fact and Law Why A New Trial Must Be Granted
1. Defendant is a poor person and this Court and the City Prosecutor
have used this fact to deny him equal justice under law. Defendant has
always claimed to be a poor
Rule 29.11(d) Motion for New Trial 1 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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person and upon his rubber-stamp conviction at the municipal court
level, immediately filed a motion before the City of Columbia municipal
court, a division of the Boone County Circuit Court, a Motion for New
Trial dated June 24, 1997. In that motion, Defendant asserted that he
was a pauper and asked "that this matter be prosecuted without payment
of fees or any other costs for the application of justice." However,
this matter was deliberately ignored, and Defendant was informed that
by order of the Boone County Circuit Court that Defendant would have to
pay $30 to have a new trial. Defendant objected to that, among other
things, but the bond of $75 was used to off-set that imposed cost.
And although the municipal judge authorized the return that very day of
the remainder of $45, the municipal court clerks refused to obey his
order.
Thus Defendant has been forced to buy for $30 what passes for justice
in Boone County as this is the initial minimum fee for his right to jury
trial. Since it was not Defendant who wished for this corrupt matter
to continue at any level, making Defendant, as opposed to the Plaintiff
City of Columbia pay is unjust as well as unconstitutional.
Constitution of Missouri, Article 1, Section 14, says that the courts
of justice shall be open to every person, and certain remedy afforded
for every injury to person, property or character, and that right and
justice shall be administered without sale, denial, or delay. This
Boone County Court must therefore either be a venue foreign to the
notion of ‘courts of justice’ and/or the notion that it is something
other than a profit center for the Missouri state regime. According to
this section of the Constitution, also known as the Bill of Rights, this
Court has no right to charge Defendants for the privilege of having a
trial, either in advance of the conviction-mill process or afterwards.
This is especially the case wherein Defendant is a poor person.
In addition, this Court loves to charge 25 cents for each page to
Defendant, even Court rulings affecting Defendant. This love of money
has ensured that Defendant has had to pay and pay in order to be kept
aware of what this Court is up to. However, this greedy and
unconstitutional preoccupation with making Defendant pay for injustice
has had the effect of Defendant never receiving an indictment or
information for proceedings before this Court. Defendant hasn’t ever
received an indictment or information regarding
Rule 29.11(d) Motion for New Trial 2 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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this case, and doubts that one exists. Otherwise Defendant might have
bought a copy of that for a quarter too.
2.A. There is no indictment or information filed against Defendant
before the Boone County Circuit Court, and none was presented at this
level before or during trial. Since there was not even an information
ever presented to this Court, trial without an information is
unacceptable. Therefore, this past ‘trial’ on January 15, 1998 was an
illegal and non-binding procedure and must as a matter of law be
overturned.
While the U.S. Constitution, Bill of Rights, Amendment VI states
that "the accused shall enjoy the right . . . to be informed of the
nature and cause of the accusation;" the Constitution of Missouri, Bill
of Rights, Art. 1, Section 17 states Defendant’s rights in greater
exactitude: "That no person shall be prosecuted criminally for felony
or misdemeanor otherwise than by indictment or information . . ."
Therefore, if this Court is to have any legitimacy or any legal
foundation for its existence, it must obey its oath to uphold the
Constitutions of Missouri and the United States, and thus render the
previous trial of Defendant null and void for a lack of an indictment.
The Missouri Rules of Court mandate that an indictment or
information are necessary in order to hold a trial. While Rule
29.11(d) states that "questions as to whether the indictment or
information states an offense" need not be brought up in this motion,
still, the very question as whether an information states an offense
presupposes that an information has been presented in the first place
before this Court. No information -- no trial can be held. Since
there is no information presented by the prosecutor in open court,
the bogus trial of Jan. 15, 1998 must be overturned. No new trial can
be held lacking a valid information signed by the city prosecutor.
In fact, the corrupt City Prosecutor McKenzie has never ever
presented a valid information concerning this case to any court.
At the municipal court level, when Defendant asked to see the
information to be presented at trial, the Prosecutor did not present
it at that municipal court trial. The Prosecutor saying that he has
a valid information somewhere is not the same as presenting one in
open court before trial as is mandated by Missouri Rules of Court
Rule 23.01(a). This rule demands that the city
Rule 29.11(d) Motion for New Trial 3 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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prosecutor sign and file the information in a court having jurisdiction
over the offense. The city prosecutor has not done any such thing.
Since there is no information, there can not be a proper information
containing the necessary information according to the dictates of Rule
23.01(b) or (f). In fact, 23.01(f)’s requirement of prosecution
witnesses and notice to be given to the defendant upon order of the
court has not been followed by the prosecution, even if a new
information was to be filed by the prosecution.
2.B. Defendant also notes that this Court, by its setting sentencing
on Feb. 19, 1998, past the 30-day limit under Missouri Rules of Court,
seems to be planning to get around Rule 29.13(a)(b)s’ provision that
this Court will set aside a judgment upon either of the following
grounds: (1) that the absent facts which were not stated on a
non-existent information cannot constitute an offense; and that (2)
absent an information or indictment this Court is absent jurisdiction
to try Defendant for anything. The Defendant also gives consent under
Rule 29.13(b) for this Court to order a new trial at least if this
Court doesn’t have the elemental decency to acquit Defendant or to
dismiss with prejudice this matter. This matter has been more fully
covered in Defendant’s Motion To Set Aside Or Grant New Trial Under
Rule 29.13 of Feb. 5, 1998 and Defendant hereby incorporates that
motion and its contents into this motion for new trial.
2.C. (1) As a result of deliberate fraud and misconduct, the City
Prosecutor could not present a proper information for trial as a result
of fraud and forgery of the original summons. Defendant, in trying
to turn up any possible information that might have been filed, looked
at the original summons (copy of which is Exhibit "A") and the papers
given to Defendant on June 18, 1997, just before the Columbia
municipal court trial in which the summons and complaint has been
changed (a copy of which is Exhibit "B"). The body of the paragraph
in the original Exhibit A General Complaint and Information states
"Trespassing 1st Degree by knowingly Remaining on the Real Property
of the Heidelburg Rest. after being ask to leave by management." The
body of the paragraph in the forged, Exhibit B General Complaint
and Information states: "Trespassing 1st Degree by knowingly Remaining
[unlawfully] on the Real Property of another."
Rule 29.11(d) Motion for New Trial 4 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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This so-called General Complaint and Information has been altered
or forged sometime between April 20, 1997 and June 18, 1997. The
falsified document was in the hands of the prosecutor at this time.
These modifications above the signature of the complainant James
Turpin are thus a forgery. Defendant is convinced that these
erasures and forgeries were committed by the prosecution to hide the
fact that the actual owner of the Heidelburg Restaurant did not want
to press charges and that the owner had fired the original complainant,
James Turpin for his part in thus opening the Heidelburg Restaurant
to civil liability. Upon changing by forgery the original General
Complaint and Information, it was probably realized by the city
prosecutor that even in the new form that the information would be
inadequate to state a cause upon which Defendant could be prosecuted.
However, no amended information was presented, because that would
bring to light the forgery (Exhibit B) performed on the original
Information (Exhibit A). Defendant hypothesizes that this is the
reason no information was ever presented by the city prosecutor at
the Columbia municipal court trial on June 24, 1997 and no
information was ever presented at the Boone County Circuit Court Trial
on or before Jan. 15, 1998. Defendant also suspects that this Court
is a party to this criminal activity, and that this is why this Court
took pains to never arraign Defendant.
2.C.(2) Defendant also notes (Exhibit B) that along with the
above-mentioned forgery that one "M W Bower" supposedly signed the
General Complaint and Information on 5-7-97, supposedly under oath,
but that no municipal judge was there to verify that complaint. This
is a violation of Missouri Rules of Court Rules 37.33, 37.34, and
37.35, all of which are valid, as Defendant is supposedly being
charged with a city ordinance violation. So even if the city
prosecutor hadn’t forged the complaint and thus boogered up the
original information, this case could not be prosecuted because
this information is not based upon a verified complaint (See
Rule 37.34 (b)(2)). So even if the prosecutor hadn’t changed by
forgery the original General Complaint and Information and had
presented that information before the municipal court on June 24,
1997 and/or this Court on or before Jan. 14, 1998, any conviction
of Defendant would have to be overturned because the information
was/is invalid under Rule 37.34 for lack of a verified complaint
Rule 29.11(d) Motion for New Trial 5 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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the validity of such to be sworn under oath before a competent authority.
3. Defendant was never arraigned before this Court, much less
properly arraigned. Since for the above-mentioned reasons in
Paragraph #2, there was never an indictment or information ever
presented, Defendant was never arraigned at all, much less properly
arraigned according to Rule 24.01. In order to have an arraignment,
an information or indictment must exist for Defendant to make a proper
plea. Defendant must be read the indictment in open court and be
given a copy of the information before making a plea. There is/was
no indictment or information, and Defendant never made a plea before
this Court. Defendant brought up the matter of arraignment several
times by both oral and written motion, but still Defendant was not
arraigned. On September 22, 1997 when Defendant asked why he had not
been arraigned, Prosecutor McKenzie said that the arraignment from the
Columbia municipal court was in effect. Defendant said that since
this was a trial de novo, arraignment was indeed necessary. Judge
Azel did nothing about this matter. Upon her removal from the case,
pre-trial matters continued, although all these procedures are
predicated upon proper arraignment having taken place. On January 18,
1998, at trial, Defendant brought up the matter that he had not been
arraigned, and Judge Bryson said something to the effect that Defendant
had been arraigned or was arraigned right now, although Defendant
didn’t make a plea in response to an non-existent information at that
time. Later on, Judge Bryson admitted that the proceedings of Jan.
18, 1998 were of the nature of being a trial de novo.
Since there was no arraignment as well as no information or
indictment, the results of the trial of Jan. 15, 1998 must be
overturned and/or a new trial granted.
4. For purposes of falsifying official records, Judge Bryson did not
allow open court proceedings. Defendant, wishing to have an honest
record of events, made numerous motions to record proceedings at his
own expense all of which were granted by the Columbia municipal court
and Boone County Circuit Court Judge Azel. However, Judge Bryson did
not allow Defendant to make any audio tape recordings of events and
went so far as to order court security personnel to seize Defendant’s
tape recorder, where they did erase the tape. Judge Bryson said that
local rules allowed him discretion in this matter.
Rule 29.11(d) Motion for New Trial 6 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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Several times, both Judge Bryson and City Prosecutor McKenzie said that
the "official record was sufficient."
Defendant disputes that the "official record" is sufficient other
than its use by Judge Bryson to falsify the record. At the Oct. 29,
1997 pre-trial conference, Judge Bryson dishonestly put on the docket
sheet that the "City does not indicate waiver of jail sentence"
although the city prosecutor twice tried to do so but was not allowed
to by Judge Bryson. With this facility to misstate the record indulged
in by Judge Bryson, Defendant does not place any reliance on the
honesty of said official record. Defendant at the pre-trial conference
brought up this matter of altering the official record and mentioned
that Defendant having his own copy of the proceedings would help protect
the illusion of integrity of official records. However, Defendant was
denied his motion as well.
Constitution of Missouri, Art. 1, Section 14 says "That the courts
of justice shall be open to every person." This implies an open
tribunal with its workings subject to the scrutiny of all, but
especially the Defendant as having an interest in open and honest
proceedings. RSMo Chapter 610 -- Conduct of Public Business does not
specifically exempt the judicial branch from public scrutiny as a
governmental body. The workings in open court are public records,
and as a member of the public defendant has the right to record the
public business that would affect himself. The court system of
Missouri which is the judicial branch, does not have legislative
authority to place itself and its public business beyond the scrutiny
of the public, nor does it have any rule-making authority to exempt
itself from the same demands for scrutiny placed upon the executive
and legislative branches. See Constitution of Missouri, Article
II, Distribution of Powers. Any mere administrative rules enacted by
the Missouri courts may not be used to change substantive rights. See
Constitution of Missouri, Article V, Section 5.
In the interests of making sure that dishonest activity by the
judicial branch is curbed by bringing such to the notice of the public,
and to protect his rights to honest and honorable due process of law,
Defendant asks that he be granted a new trial in which he is allowed
to electronically record in some form the new trial proceedings.
Rule 29.11(d) Motion for New Trial 7 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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5.A. Judge Bryson seems determined to sentence Defendant by any means
possible. On Oct. 29, 1997, Judge Bryson would not allow the City
Prosecutor to waive prosecution for a jail sentence, although the
City Prosecutor tried twice to waive a jail sentence in favor of a
fine. Because of this determination, Judge Bryson made arrangements
for Defendant to see the Public Defender. While Defendant would
qualify because of his poverty for the services of a public defender,
Defendant did not wish to use the services of a public defender nor
have had to spend $60-$80 dollars traveling 230 miles to Columbia for
a hearing Nov. 12, 1997, so Defendant waived the services of the
public defender. On Nov. 10, 1997, Prosecutor McKenzie professed
that he could see no authority for him to waive the jail sentence,
although Defendant had sent on Nov. 8, 1997 notification that Judge
Bryson had improperly meddled into the prosecution of the case, which
was an executive, not judicial function. The Public Defender’s Office
notified Judge Bryson that trying to impose a jail sentence for
municipal ordinance violation and thus tying up the scarce state
resources of the public defender’s office was a violation of RSMo
600.042.9(5) and the dictates of Albers v. Koffman 815 S.W.2d 484, 485.
The public defender’s office also put Judge Bryson on notice that
other municipal cases where he was doing the very same thing was
illegal as well.
Defendant brings up this matter again to show Judge Bryson’s
collusive history of working together with a corrupt prosecution to
destroy the rights of defendants under color of law. Defendant asked
Judge Bryson to recuse himself in his Response to the issue of jail
time of Dec. 7, 1997. Judge Bryson chose not to do so, although both
Judge Bryson and Prosecutor McKenzie, when caught out by the letter of
the law, decided to not seek jail time for Defendant at the pre-trial
conference called on Jan. 6, 1998.
While the jury instruction was changed to only allow imposition of
a maximum $500 fine, the jury for some reason saw fit not to assess
a sentence. This thus leaves sentencing up to a judge who tried to
usurp sentencing options before. This judge, because of past lawless
behavior, should not be allowed discretion to sentence Defendant.
Therefore, for this reason a new trial should be granted.
5.B. Defendant was only sentenced to a $25 fine and $20 court costs
on June 24, 1997
Rule 29.11(d) Motion for New Trial 8 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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in the Columbia municipal court. Defendant tried to bring forth the
amount of the sentence as evidence but this evidence was improperly
objected to by the prosecution and sustained by Judge Bryson. The
Defendant cannot be made to bear a heavier or additional penalty
because Defendant chose to avail himself of his constitutional
protections under the U.S. and Missouri Constitutions to right to
trial by jury. Since a fine of $25 dollars and $20 court costs had
been imposed by the Columbia municipal court on June 24, 1997, this
evidence should have been allowed to be presented to the jury for
them to consider in light of the jury instructions regarding the
amount of a fine in returning a sentence, as an aid in deliberations.
This was deliberately forestalled by Prosecutor McKenzie and Judge
Bryson wanting to impose a heavier sentence. Since the jury did not
return a sentence and the jury has been dismissed, then that leaves
this matter to be decided in a new trial by jury to make sure that
Defendant is given a sentence in line with constitutional protections.
6.A. Defendant was not accorded his right to discovery by the
prosecution because of no information made by prosecution. If the
prosecutor had ever made an information, much less a proper
information, Missouri Rules of Court, Rule 23.01(f) would have required
the prosecutor to list the names and addresses of all material
witnesses for the prosecution. However, as a result of fraud and
forgery, the prosecution refused to ever seek an indictment or make
any information. Therefore this discovery mandated by Rule 23.01(f)
was never submitted to Defendant with the non-existent information.
Therefore, under Rule 25.16 since the mandated discovery of Rule
23.01(f) was never provided because of the willful misconduct of
prosecution in not providing an information, all evidence of the
prosecution involving any material witnesses should be excluded.
Since the prosecution would then have no evidence whatsoever,
Defendant must prevail as a matter of law and fact. While this
would tend to favor Defendant more in the line of a judgment of
acquittal or a dismissal with prejudice, still, this lack of
admitted evidence could be used as the basis for a new trial.
The prosecutor’s misconduct under this Rule 25.16 could also lead
to additional sanctions by this court.
6.B. In a motion file-stamped on August 11, 1997, (Exhibit C)
Defendant asked
Rule 29.11(d) Motion for New Trial 9 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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under Rule 25.03 for disclosure by prosecution and was denied that
disclosure by prosecution. At the pre-trial conference of September
22, 1997, Defendant orally asked City Prosecutor McKenzie again for
the discovery, and was refused to be given that discovery on the
basis that nothing new that wasn’t presented at the Columbia municipal
court trial of June 24, 1997 would be presented at the circuit level.
When Defendant persisted in asking for discovery, the prosecutor
ignored Defendant’s requests. Therefore, the prosecutor has again
willfully violated Rule 25.16. Prosecutor was not going to allow
Defendant any discovery if he could help it. Therefore the
prosecution should be sanctioned, prosecution evidence disallowed,
this jury verdict set aside or case dismissed, or a new trial
granted.
If Prosecutor McKenzie would claim that he did indeed submit
discovery on Aug. 12, 1997, (See Exhibit D) in a List of Witnesses
and Exhibits, then Defendant says that he did no such thing. While
there is a certificate of service dated Aug. 8, 1997, Defendant has
no such letter. Instead, Defendant had to dig this List out of the
Court file and pay $0.25 for a copy. In any case, Defendant was
unaware of this list on Sept. 22, 1997 and he should have been given
a copy of this discovery at that time, rather than forestalled by
prosecutor trying to spring a surprise.
6.C. Defendant brought this matter of a lack of discovery to the
Court’s attention and objected to prosecution’s witnesses at trial on
Jan. 18, 1998. Defendant brought forward this objection (under Rule
25.16) when Prosecution tried to call James Givens, Chairman of the
Missouri Libertarian Party (MoLP) as a witness. Defendant brought
up the matter of having asked for discovery by prosecution on Aug. 8,
1997 and the refusal of the prosecution to grant that discovery, the
supposed List of Witnesses (Exhibit D) to the contrary. Defendant
asked that all witnesses not brought forward at the municipal court
trial be disallowed from testifying. Judge Bryson sustained
Defendant’s objection. However, a police officer named Dan
Gillespie and Mitchell Moore, lawyer for the MoLP were allowed to
testify nevertheless, although Defendant made the exact same
objection as regarding the lack of discovery given Defendant as
with the case of James Givens as a witness. Neither Gillespie,
Moore, nor Givens testified at the Columbia municipal trial,
Rule 29.11(d) Motion for New Trial 10 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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and for the city prosecutor to be allowed to present any of those
witnesses after denying discovery is improper. However, since these
prosecution witnesses were allowed to improperly testify, it is
necessary to hold a new trial with proper discovery granted.
Mitchell Moore, an attorney, was allowed to especially prejudice
the case of Defendant when he was allowed to ramble on without
answering the questions imposed upon cross-examination by Defendant.
Judge Bryson admonished Defendant several times before the jury when
Defendant tried to get this prosecution witness on track. It wasn’t
until after the lunch recess that Defendant hit upon letting this
witness ramble on and on, and then pouncing on the dishonest testimony
of that witness that the prosecution started objecting as to relevance
of the testimony of that particular witness. Then Judge Bryson would
summarily grant prosecution objections. Defendant brings this matter
up to show the bias of Judge Bryson at trial.
7. This Court violated Defendant’s Constitutional rights to have
witnesses for the defense compelled to testify on behalf of Defendant.
The U.S. Constitution, Amendment V says "In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, . . .
to have compulsory process for obtaining witnesses in his favor; . . ."
The Constitution of Missouri, Article 1, Section 18(a) says "That in
all criminal prosecutions the accused shall have the right . . . to
have process to compel the attendance of witnesses in his behalf;
. . . ." Rule 26.02(a), Missouri Rules of Court provides that "A
subpoena shall be issued by the clerk under the seal of the court."
Yet this Court deliberately chose to use certain procedures to
invalidate these Constitutional rights of Defendant to obtain
certain witnesses on his behalf, refusing to do its duty in compelling
defense witnesses by farming the issuance of subpoenas to the
Defendant, and then quashing or ignoring them because Defendant could
not afford service by sheriff or other summons server.
7.A. This Court at pre-trial conferences on Oct. 29, 1997 and Jan. 6
and Jan. 14, 1998 refused to compel Defense witnesses Rebecca M. Cook,
Secretary of State and Jay Nixon or Mark Long of the Missouri Attorney
General’s Office to appear for trial. This is regardless of the fact
that Defendant had asked for subpoenas of these individuals since
Rule 29.11(d) Motion for New Trial 11 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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August 8, 1997 (See Exhibit C). Assistant Attorney General David A.
Johnson, Missouri Bar # 32192 showed up at all these pre-trial
conferences to argue for quashing Defendant’s subpoenas. Defendant
had subpoenaed these election law-enforcement and other law-enforcement
officials to testify that they had been invited by Defendant to attend
the MoLP meeting wherein both election laws and RSMo 610 -- Conduct of
Public Business were to be broken by MoLP officials and the management
of the Heidelburg Restaurant on April 20, 1997, and that they had
refused to perform their respective duties to uphold and enforce the
laws of the state of Missouri. (See Exhibit E) Thus their testimony,
while embarrassing to themselves in that these law-enforcement officers
of the executive branch refused to obey their own laws and perform
their duties under law, was indeed relevant. It is foreseeable that
the lawlessness of the MoLP in violating election laws and RSMo 610 and
the false arrest of Defendant for ‘trespassing’ by the Columbia
Police Department would never have taken place if these government
officials had been present. At the very least, Defendant wanted an
affidavit to that effect if these government officials were too busy
refusing to perform other duties on the trial date.
However, the main excuse used by Attorney Johnstone was that
Defendant had improperly served his subpoenas under Rule 26.02(d) in
that they were not served by sheriff or other summons server. Defendant
pointed out that he had no money to afford service other than by
U.S. Mail, and that if this Court wished to farm out its
responsibilities under the Constitutions of Missouri and the United
States onto Defendant, that it had no business in complaining as to
how the Defendant performed the Court’s duties. Additionally, since
the subpoenaed officials were represented before the Court right then
and there, this Court could proceed to do its duty without necessity
of service by either sheriff or Defendant, and compel those government
officials to be witnesses for the defense right then and there. This
Court after some further argumentation, quashed Defendant’s subpoenas
at the pre-trial conference of Jan. 14, 1998.
The Constitutions of Missouri and the U.S. make it absolutely
clear that it is the duty of the courts to issue subpoenas, and not
the duty of the defendant or other people defendant pays to have
subpoenas served. This is especially the case since Defendant
Rule 29.11(d) Motion for New Trial 12 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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couldn’t afford to have these subpoenas served by sheriff. This Court
took upon itself to violate the constitutional rights of Defendant,
using whatever excuse was most expeditious.
It is quite clear that rather than have to testify to a deliberate
dereliction of duty, these government officials of the State of
Missouri prevailed upon this Court to quash Defendant’s rightful
subpoenas. Defendant suspects that if these high state government
officials would have been compelled to testify, that they would have
chewed off City Prosecutor McKenzie’s leg off to get him to nolle
prosequi in order to keep from testifying concerning their criminal
and incompetent dereliction of official duties.
Defendant thus has the right to a new trial wherein these
witnesses for the defense will be compelled to testify as to the
illegality of the April 20, 1997 MoLP meeting and the illegality of
Defendant’s arrest for ‘trespassing.’
7.B. In order to justify this Court’s misconduct for not compelling
the above-mentioned high state officials to be defense witnesses
under guise of ‘improper service,’ this Court refused to compel two
other witnesses for the Defense to testify as well. These witnesses,
Kevin Goodwin and Edwin Hoag were/are MoLP officials who prevailed
upon the then Heidelburg Restaurant manager Jim Turpin, a fellow MoLP
official, to have Defendant illegally arrested for 'trespassing’ even
though that was a violation of the Missouri Sunshine Act, RSMo Chap.
610 and Missouri election statutes as well. Because Defendant had
served their subpoenas by mail as well, this Court had to pretend
that this service that it had foisted off as a duty upon Defendant
was invalid as well, since these defense witnesses hadn’t made any
motion to quash. If this Court didn’t make this pretense, then its
rulings on behalf of the Missouri state officials would be openly
suspect.
Again, Defendant has a right to a new trial in where his witnesses
-- all of them -- are compelled by an honest Court obeying the
constitutions and laws of the U.S. and Missouri to testify on behalf
of the defendant.
7.C. As a result of a fraud upon this Court performed by the
prosecution and assented to by this Court, Defendant had no access to
one of his witnesses. While
Rule 29.11(d) Motion for New Trial 13 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
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Defendant was questioning one of his witnesses, a Captain Joseph
Fagiolo, regarding his misconduct in violating RSMo Chapter 610 in
refusing to release an incident report concerning the events of March
16, 1997, Prosecutor McKenzie, having gotten one of his many
objections sustained by this Court, after getting another one or
two sustained by this Court then went on to claim that this Court
had ruled as inadmissible anything to do with the events of March
16, 1997, where the MoLP had first learned how to use the Columbia
Police Department to threaten to arrest Defendant for going about
lawfully under RSMo Chapter 610 videotaping public meetings
concerning public business. This Court immediately ‘remembered’
making such a ruling when it had done no such thing.
As a result of this collusive and corrupt practice, defense
witness William Beeler, who was there to testify as to the events of
March 16, 1997, was immediately rendered invalid. Defense was not
allowed to question Beeler regarding his testimony of MoLP misconduct
and the willingness of the Columbia Police Department to make false
arrests based upon their faulty and imperfect knowledge of the law
and circumstances involved. Since Defendant has a right to have his
witnesses testify to relevant evidence, it is necessary for a new
trial to bring forth that testimony.
8. Evidence which would tend to prove that Defendant had a right, as
a public official to be at the Heidelburg Restaurant on March 16 and
April 20, 1997, the illegality of the MoLP proceedings of March 16
and April 20, 1997, how Defendant tried his best to nullify these
illegal meetings of the MoLP, and how Defendant was falsely arrested
by the Columbia Police Department was not allowed to be presented
by the misconduct and collusion of the prosecution and this Court.
The prosecution used every single chance it could get to raise
spurious objections as to the admissibility of such key evidence and
this Court, without listening to Defendant, sustained most, if not
all, of those bogus objections. The reason the trial of January
15, 1998 lasted so long is that Defendant refused to give up on
presenting his case, always asking another different, related question
after another.
Since the Defendant does not have the ‘official record’ or
transcript, (not that he could afford it if it was available to
Defendant) and since such a transcript of 10 hours of
Rule 29.11(d) Motion for New Trial 14 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
____________________________________________________________________________
trial would take so much time to present all the plain errors indulged
in by this Court in not allowing Defendant’s evidence to be presented
to the jury, Defendant cannot list all these specific procedural
errors committed by this Court. That is a task awaiting the state
and federal appellate levels upon receipt of the transcript. However,
the errors are so numerous that it would be best to simply scrap the
trial of Jan. 15, 1998 and hold a new trial instead.
9. A. The jury was not an “impartial” jury of the State and district
wherein the ‘trespass’ supposedly was committed. Defendant did not
receive a fair trial by jury as per Amendment VI of the U.S.
Constitution as the jury was comprised, as can be expected of Boone
County, almost exclusively of government workers and those dependent
upon the state and local government for their support. Therefore
this jury was anything but impartial, having had long acquaintance
and ties of common interest with the prosecution and its witnesses.
Defendant had to make do with what he had.
In an effort to salvage something out of the jury pool, Defendant
tried to make it random, asking that the jury pool left after the
challenges for cause and the preemptory were used up be selected by
lot, as opposed to the first ones of those which were left. It would
be easier to pack a jury if the prosecution could rely on a given
selection of the jury pool, say the first 20 or so, to be the
remainder. As what was left were the first 18 jurors, Defendant
suspects that jury tampering or packing by the Court or prosecution
is possible.
This is another reason Defendant is asking for a new trial, and,
if such is granted, Defendant will ask for a change of venue to a
less government-dependent locale for jury selection.
9.B. Defendant suspects juror misconduct. Defendant doesn’t mind
so much that one or two of the jurors were asleep or obviously
inattentive at times during the trial, although that did hurt.
However, immediately after the trial ended, and the jury panel was
excused, Defendant and his one friendly witness, Dr. Hal Williams,
noticed Prosecutor McKenzie engaged in what seemed to be friendly
conversation with one of the elderly female jurors. The conversation
ceased while Dr. Williams and Defendant went past this
Rule 29.11(d) Motion for New Trial 15 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
____________________________________________________________________________
couple just inside the courthouse beside the security station as we
were noticed. Therefore, questions as to possible juror misconduct
and the prosecution are in order and should be investigated.
10. Defendant was not allowed to present a motion for judgment of
acquittal before jury according to Rule 27.02(l). Instead, jury
instructions were gone over instead. Judge Bryson was in a hurry and
didn’t allow Defendant to say that he didn’t get his second chance to
make a verbal motion for judgment of acquittal. When Defendant was
allowed to speak and brought the matter up, Defendant was told that
he would be allowed to make an oral motion after the jury was brought
back from recess. Defendant started writing up a written motion for
judgment of acquittal. Then Judge Bryson said that Defendant wouldn’t
be allowed to make an oral motion, so Defendant presented what he had
written for consideration. It was superficially argued, and then
overruled and not allowed to be presented to the jury. Therefore, the
procedure as outlined in the order of trial (Rule 27.02(l)) was not
followed by this Court and Defendant suffered harm as a result of
this matter.
11. A. This Court improperly allowed improper Prosecution jury
instructions to be presented. Instruction #6, presented by prosecution
and allowed to be presented to the jury does not follow the Missouri
Rules of Court, Rule 28 provisions for jury instructions. The
prosecutor was allowed to present the following jury instruction to
the jury:
A person enters unlawfully or remains unlawfully in or
upon the premises when he is not licensed or privileged
to do so. A person who, regardless of his purpose,
enters or remains in or upon the premises which are at the
time open to the public does so with license or privilege
unless he defies a lawful order not to enter or remain,
personally communicated to him by the owner of such premises
or by other authorized person. A license or privilege to
enter or remain in a building which is only partly open to
the public is not a license or privilege to enter or remain
in that part of the building which is not open to the public.
This instruction of the prosecutor which this Court allowed to be
sent to the jury is not an MAI-CR instruction, thus it violatesRule
28.02(c); it didn’t contain a notation at the end of the instruction
stating whether it was a MAI-CR instruction, modified MAI-
Rule 29.11(d) Motion for New Trial 16 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
____________________________________________________________________________
CR instruction, or not a MAI-CR instruction, thus violating Rule
28.02(b); it certainly was not simple, brief, impartial or free from
argument, thus violating Rule 28.02(d). Who determines whether a
lawful order to leave was given to Defendant? The owner of the
restaurant wasn’t present at the time, and the termination of the
manager who helped cause this mess raises questions as to whether the
complainant was an authorized person or merely somebody who abused
the owner’s misplaced trust in his good sense and public decency. The
prosecutor admitted that Defendant was invited onto the premises to
conduct public business and did not deny that Defendant was a public
official. In fact, in his closing arguments, the prosecutor admitted
Defendant was a public official going about public business who
somehow had overstayed his welcome on quasi-public property. What part
of the restaurant was ‘only partly’ open to the public implies the
falsehood that a public meeting held for public officials like
Defendant to conduct public business was somehow not really in a
public place. This last sentence of the prosecutor’s improper jury
instruction is not only deliberately confusing, it is highly
prejudicial against Defendant.
Whereas the prosecutor’s modified MAI-CR instruction #5 is far
more neutral, clear, brief and proper. It is improper in that it
names a building at a location, the Heidelburg Restaurant, as owning
itself as opposed to naming the real owner, who should be the only
one who has standing to bring prosecution against the Defendant.
However, that is understandable since the prosecutor in his corrupt
fashion does not want to bring up the issue of standing to prosecute
for trespass since the whole purpose behind this bogus trial is a
sneaking effort at protecting the City of Columbia from suit for
violations of civil rights of Defendant under color of law.
11.B. This Court did not allow Defendant to present a proper jury
instruction. Defendant on the other hand, presented a modest, clear
instruction which said in effect that if Defendant was a public
official conducting public business in a public place set aside for
that purpose that according to Columbia City Ordinance 16-107, that
he couldn’t be held guilty of trespass. While there was no
notation at the end of the instruction as provided for by
Rule 28.02(b), saying that Defendant’s jury instruction was
Rule 29.11(d) Motion for New Trial 17 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
____________________________________________________________________________
a modified MAI-CR jury instruction, none of the prosecutor’s jury
instructions followed that rule either, but this Court allowed both of
the prosecution’s jury instructions and none of Defendant’s jury
instructions. This was definitely a Court which favored the
prosecution and was out to get the defense.
11.C. Judge Bryson overtly favored the prosecution in the drafting
of jury instructions. When it came time to present the jury
instructions, the prosecutor didn’t have his proposed jury instructions
in proper form. The prosecutor asked for a continued recess in order
to get his jury instructions in order. Judge Bryson seemed annoyed
at the prosecutor for the very first time in the trial for the
prosecutor not having matters in order. So Judge Bryson picked up a
book of jury instructions and started paging through them to help out
the prosecutor with his jury instructions.
Defendant, who had been suffering through a long trial wherein
Bryson had denied almost every single one of his motions and responses
to prosecutor’s objections while Bryson scolded him several times for
not knowing the law and overtly saying that he (Bryson) could not
help Defendant with the law, took it into his head to comment, “Helping
the prosecution with the law, are we?” Bryson turned red, slammed the
jury instruction book, granted the prosecutor his recess to go to his
office to get the proper forms, and stomped off the bench into his
chambers.
Defendant was advised by his one friendly witness to apologize to
Judge Bryson. When Prosecutor McKenzie came back, and Judge Bryson
came out of chambers, Defendant tried to apologize, but was told by
Judge Bryson to not put words in the Court’s mouth.
Before this interlude, Defendant was promised a chance to argue
concerning jury instructions. However, no such opportunity was
allotted by Judge Bryson. Instead, Defendant was told that his jury
instruction(s) would not be allowed, and that those of the prosecution
would be allowed. Therefore, Defendant was not given a fair chance
under Rule 28.03 to present specific objections to the jury
instructions, although such opportunity had been promised earlier.
Defendant is now raising these specific objections in this motion
for new trial, as
Rule 29.11(d) Motion for New Trial 18 Martin Lindstedt
Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road
Alleged First Degree Trespass Granby, Missouri 64844
____________________________________________________________________________
provided for by Rule 28.03, not having had opportunity to do so during
the trial. Defendant notes that according to Rule 28.02(f) that
sufficient plain and prejudicial error exists to justify and make
necessary a new trial.
12. Defendant hereby incorporates all the defenses already submitted
in his Motion for Judgment of Acquittal submitted Jan. 29, 1998 in
this Motion for New Trial. While these questions authorized by Rule
27.07 concerning a judgment of acquittal need not be presented again
in this motion for new trial (See Rule 29.11(d)), these issues of both
fact and law already presented are as valid in asking for a new trial
as they were in asking for a directed verdict for acquittal.
Wherefore, for the above-mentioned reasons consistent with both
fact and law Defendant asks that this Court grant this, Defendant’s
Motion for New Trial under Missouri Rules of Court, Rule 29.11(d);
plus whatever relief this Court finds necessary and just.
__________________________________
Martin Lindstedt, Defendant,
(417) 472-6901
Certificate of Service
A copy of the foregoing was mailed Feb. 7, 1998 to the City of
Columbia Prosecuting Attorney William S. McKenzie, Howard Municipal
Building, 600 E. Broadway, Columbia, Missouri 65201.
Rule 29.11(d) Motion for New Trial 19 Martin Lindstedt Columbia, Mo. v. Lindstedt, Case # MU0197-055121MR 338 Rabbit Track Road Alleged First Degree Trespass Granby, Missouri 64844 ____________________________________________________________________________.
..Commentary: Of course, after reading this litany of this corrupt criminal trial kort's ongoing corrupt collusion with the City of Columbia Persecutor on my sentencing date of Feb. 19, 1998, the corrupt Judge Bryson simply overruled this motion, along with the others read into the trial record. Obviously he gave no Findings of Fact and Conclusions of Law behind his decree to overrule, because there were no valid facts or law to support his corruption.
Therefore, things had to go up to the equally corrupt Missouri Kangaroo Kort of Appeals --Western District, in Kansas City, Missouri, where they would obfuscate and try covering up for the corrupt Boone County Trial kort.
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