COMES NOW, Defendant Marc Perkel, pursuant to Rule 21.04 to ask the court for an order to make the Bill of particulars more definite. The information in the Plaintiff's First Amended Information does not allege sufficient facts supporting a charge of Trespassing as defined by City Ordinance 26-152. In support of his request Defendant states as follows:

1. The crime of Trespassing requires the element of scienter; that the act must be done "knowingly", and the actor must have guilty knowledge that he is acting unlawfully.
2. The Plaintiff’s Bill of Particulars only alleges guilty knowledge but fails to state any facts that would support this allegation.
3. Defendant contends that in order to allege that this crime occurred, that the state is required to state a fact that indicates that the Defendant had actual knowledge that he was unwelcome on the premises. There must be some fact beyond the Complainant’s bare allegation, such as a police complaint or a witness, to prove beyond a reasonable doubt the Defendant’s guilty knowledge.
4. The Bill of Particulars fails to state the date and time that the alleged notice was given to the Defendant. It fails to state what was said by the Complainant to make it clear that the Defendant had guilty knowledge when he returned the second time. Without these facts the Defendant's rights would be prejudiced because he will have insufficient information to prepare a defense and avoid double jeopardy.
5. The statements in the Police Report can not be used in any way to support this complaint because they are hearsay. The Officers, according to their own report did not witness the crime and therefore all they know is what the Complainant told them.
6. The statement on the summons signed by the Complainant does not allege any of the required facts that indicate that the Defendant had guilty knowledge he was unwelcome on the property.
7. The police Officers initiated the complaint process, usurped the power of the Prosecutor by fabricating a complaint that they admit they did not witness, usurped the power of the Judge by initiating an arrest without the authority of the court to do so, and fabricating a Police Report of an alleged violation that they admit they did not witness. The procedure was so irregular that it denied the Defendant due process of law.
8. The Police Report admits that the summons, which is being treated as a complaint, was altered and filled out after the Complainant signed it according to the Police Report. We therefore don’t know that the summons constitutes the Complainant’s verified statement.

The Defendant has rights granted to him by the constitution that must be protected. This case has many unusual elements where it is questionable that the state followed the proper procedures so as to protect those constitutional rights. If the Defendant can not be legally charged with a crime, it is the duty of the Prosecutor to drop the charges against the Defendant. The Prosecutor's job is not only to convict Defendants of crimes. It is also the Prosecutor's job to absolve Defendants of crimes if it turns out that the evidence suggests that the Defendant did not commit the alleged act, or the act was committed but fails to meet the elements of the crime. Or if the procedures in charging the Defendant violated the Defendant's rights in ways that undermine the state's right to properly convict the Defendant.

Normally in the case of an ordinance violation that results in an arrest, the Officer sees the offense occur. The Officer is therefore a witness to the offense and is often the Complainant for the state. For example, if an Officer sees a Defendant run a stop sign, the Officer charges him with a crime and he can be arrested. The Officer would then testify to what he saw and his Police Report would become part of the complaint.

In this case according to the Police Report, the Officers did not see the trespass occur. The Officers are therefore not witnesses and the Police Report does not reflect what actually happened, but what the Complainant says happened. Thus it is hearsay. The Police Report also states that the Defendant made no statements, thus the police have nothing to add that relates to the crime of trespassing. Thus for the purpose of this proceeding, the Police Report should be stricken from the record in respect to charging the Defendant with a crime; and the Defendant moves that the court do so. These Officers can not, for the same reason be called by the state as state's witnesses because according to their own Police Report, they didn't witness anything. Defendant therefore moves the court strike the Officers as state's witnesses on the basis of hearsay.

The Officers did arrest the Defendant at his home three days after the violation allegedly occurred. This arrest, which the Defendant contends was unlawful, is not the subject of this trespass proceeding. It doesn't matter if the arrest was lawful or not in respect to the trespassing charge. Therefore the details of the arrest is not relevant from the state's perspective as to charging the Defendant with this specific crime.

Additionally, the Police Report is loaded with allegations that the Defendant patronized prostitutes, stalked women, and is generally a shady character. The Defendant denies the allegations, however, even if true, these allegations have nothing to do with the charge of trespassing. These allegations would be highly prejudicial and irrelevant and therefore should not be admitted as evidence nor be relied on as facts to bring this complaint. Besides, none of the acts of patronizing prostitution referenced in the Police Report were witnessed by the police and are therefore also hearsay.

The complaint itself was not issued in a standard manner. Normally when a violation of an ordinance occurs that is not witnessed by the police, the Complainant has to file the complaint with the Prosecutor who determines if there are enough facts to support the allegation that constitute the elements of a crime. Then, if there is sufficient justification the Prosecutor goes to the Judge and asks that a warrant be issued for the arrest of the Defendant. This procedure wasn't followed in this case.

In this case the police contacted the Complainant three days after the violation allegedly occurred and the police initiated the complaint process and subsequent arrest bypassing the Prosecutor and the Judge. The police usurped the powers of Prosecutor and Judge and wrote up a complaint themselves that lacked any statement of facts that supported the allegation that the Defendant had guilty knowledge of his crime as required by the ordinance. Had the police Officer actually been a Prosecutor he might have had the skills to write a legal complaint. However, this Officer hadn't been sufficiently trained to impersonate a Prosecutor and a Judge and the summons form lacks the facts required to rise to the level of a complaint or to rise to the level of information upon which to charge a Defendant with a crime. Had the Officer witnessed the alleged violation then his Police Report could be used to supplement the Prosecutor's complaint. But the Officer didn't witness anything and his Police Report is nothing more than what he had heard the Complainant say. On the basis that the police Officer is neither a Prosecutor nor a Judge, this case should be dismissed.

According to the Police Report, the Officer claims the Complainant signed the summons. The Officer then claims that he filled out the summons later after it was signed. We therefore don't know what was on the summons when the Complainant signed it. Since the Officer initiated the complaint and subsequent arrest, usurping the powers and duties of both Prosecutor and Judge, we don't know how much was filled out when the Complainant signed the complaint. We therefore don't know if the information on the summons is really the statement of the Complainant. The Defendant therefore moves to dismiss on the basis that the information on the summons was altered, according to the Police Report, after the Complainant signed it and therefore can not be legally construed as the statement of the Complainant.

Had proper procedures been observed, the Complainant would have come before the Prosecutor and made a statement. The Prosecutor would then have drafted a legal complaint alleging sufficient facts that constitute the elements of a crime. The Complainant would then read the complaint as drafted and sign it verifying it as the statement of the Complainant. In this case this did not happen. Defendant contends therefore that the summons is not a legal complaint for which a crime can be charged. The Prosecutor should be required to get a legal complaint if he is going to charge the Defendant with a crime. Because the complaint isn't a lawful complaint, the charges should be dismissed.

Anyone can say that they told someone not to come around. But in order to convict someone of a crime beyond a reasonable doubt, there must be some external fact that supports the Complainant’s contention that she gave the Defendant prior warning. There must be a witness, or perhaps a police complaint, or a letter, or something beyond a bare allegation. One can not be charge with a crime on a bare allegation without any supporting facts.

Nothing that is material to the charge, such as the time, date, and nature of the first visit to the Complainant's home, should be omitted because the courts will not fill in the gaps by implication. State v. Simone 416 S.W.2d 96, 98 (Mo. 1967); State v. Cantrell, 403 S.W.2d 647, 651 (Mo 1966); State v. Barlett, 394 S.W.2d 434, 436 (Mo.App.1965).

An information or indictment must allege sufficient facts so that it will be possible to determine whether a future charge should be barred on double jeopardy grounds constituting the "same offense". State v. Taylor, 498 S.W.2d 614, 617 (Mo App. 1973); State v. Singleton, 602 S.W.2d 3, 7 (Mo App 1980).

An indictment or an information should be sufficiently specific so that the admissibility of evidence can be determined. State v. Graham, 322 S.W.2d 188, 194 (Mo.App.1959). The information must state with reasonable certainty the essential facts that constitute the offense so that the Defendant doesn't have to guess or speculate as to the meaning of the allegations. State v. Muchnick, 334 S.W.2d 386, 390 (Mo.App.1960). In this case the Defendant doesn't have a clue about the alleged warning by the Complainant. Nothing indicates what was said or how it was made clear. The Defendant has no facts to prepare a defense. An information must allege facts, not merely conclusions so that the defendant will have notice of what he is to answer, State v. McCloud, 313 S.W.2d 177, 181 (Mo.App.1958); State v. Wren 622, S.W.2d 31, 32 (Mo.App.1981), and the charges must state the date and time of the charges as precisely as can be determined. The Bill of Particulars fails to state the Date or Time of the first visit.

This crime requires that the state prove, beyond a reasonable doubt, that the Defendant had guilty knowledge that he wasn’t welcome on the Complainant’s property. Both the Complainant and the Defendant agree that the Defendant visited the Complainant exactly two times. Therefore the state has the burden of proving that on the first visit that the Complainant made it so clear to the Defendant that he was unwelcome that the Defendant couldn’t have possibly have made an honest mistake and believed that he was welcome. To rise to this level on a single visit there would have to be some fact that would indicate that the Complainant had made her wishes known. The Bill of Particulars and the complaint itself lacks these facts. The Defendant contends that had the police followed proper procedures, the Complainant would have had to convince the Prosecutor to issue a summons. Plaintiff contends that the Prosecutor would have required the Complainant to state the date that the first visit occurred and to state a fact that can be used as evidence that the Defendant was made aware that he was unwelcome. Defendant contends that had the police followed proper procedures that the Prosecutor wouldn’t have issued a summons without facts to support the elements of the crime. Defendant therefore contends that this complaint should be dismissed for failing to state any facts that support the element of guilty knowledge on the part of the Defendant.

Although the Defendant denies it, the Police Report claims that the Complainant and the Defendant were lovers. If the Police Report were taken as true, a reasonable person would conclude, in the absence of any other facts, that the Defendant might well have been honestly mistaken as to how welcome he was. An honest mistake does not constitute the crime of trespassing as defined in the ordinance. Since there are two Complainants the Defendant may have believed that he was welcome with one of the two. The Police Report indicates, and the Defendant admits that the daughter was not present at the first visit, and that the mother was not present at the second visit. In order to prepare a defense, the Defendant needs to know what it is that he is being accused of. The Police Report is hearsay and can’t be construed as the statements of the Complainants. The Defendant therefore has nothing to go on to determine what he specifically is accused of and therefore there is insufficient information to form a defense.

This case started with a summons that was initiated by the police officers, not the complainant. The officers were working on an unrelated case investigating an escort service. The officers became familiar with the Defendant after noticing him in the courtroom at a hearing on the escort service. The Complainant, Shirley Anne Montgomery was also familiar with the Defendant and his role as friend and legal researcher of the escort service owner (Mike). Ms. Montgomery (Anne) and her daughter (Dee) both worked for this escort service but had turned state's witnesses, (snitch) and was working closely with the police officers who arrested the Defendant in this case for trespassing. In fact it was Anne who called the Defendant when Mike was arrested to help get Mike bailed out of jail. At that time it was not known that Anne was the snitch.

As the Defendant stated in his Internal Affairs Complaint against the arresting officers, the Defendant made a visit to the home of Anne. Dee was not present. The purpose of the visit was to see if Anne still wanted to buy the used computer she had previously expressed interest in. Upon arriving at her home, Anne answered the door and invited the Defendant in. Anne was very nice, overly nice in fact, and went to great lengths to indicate that although she was the only one who had not yet been charged with a crime, that she was not the snitch. She initiated the conversation and went to such lengths to convince the Defendant she wasn't the snitch that it made the Defendant wonder if in fact she was. The defendant visited with Anne for about an hour and at the end of the visit she indicated that she still wanted the computer, but that she would have the money in about three weeks. At no time was there any indication that the Defendant wasn't welcome to return. The Defendant was in fact invited by Anne to return.

This visit however was more distressing to the police who were out to get Mike no matter what. The police had made a number of bogus arrests in an attempt to use terror and torture to get reluctant witnesses to talk about Mike. Several of these witnesses are women named in the Police Report. One of the witnesses was robbed at gunpoint of $600 and arrested, not charged with a crime, but the police kept her money. When it became known that the Defendant was assisting Mike and had visited Anne, the Defendant became a target of the police. It was just a matter of time before the police arrested the Defendant for something, anything.

The second time the Defendant visited Anne was after it was revealed that she was the snitch. Dee answered the door that day and made it clear then that the Defendant wasn't welcome, indicating that she believed that the Defendant was acting in behalf of Mike. The Defendant immediately left and never returned.

This visit further distressed the police officers whom three days after the visit, initiated the trespassing complaint on their own. Anne obviously enjoys some form of immunity because she admits in statements that she engaged in third degree promotion of prostitution, yet is the only one who was not charged with a crime. In exchange for this apparent immunity, Anne is obligated to cooperate with the police including, I believe, signing trespassing complaints that the officers admit to having initiated in their Police Report. This further clouds the issue that the summons constitutes a verified complaint against the Defendant.

Although the police officers deny that they arrested the Defendant to question him about Mike, it is clear from the fact that more than 50% of their report on the Defendant's trespassing charge is about Mike's case. The Police Report is full of statements supposedly made by prostitutes that are totally unrelated to this trespassing case and supports my statements that this prosecution has nothing to do with trespassing and everything to do with prostitution. If prostitution is such an important factor here then the state has charged me with the wrong crime and the trespassing charge should be dismissed.

The police report also states that the Complainant called the police officers on the officer's private pager rather than calling the police department. The officers responded using their cell phones. It's rather obvious that the officers who arrested the Defendant had a close working relationship with the Complainant and were working cooperatively against Mike. Thus the presence of the Defendant would automatically be construed as a threat to the purpose of busting Mike using any means, legal or not.

The fact that the Police Report indicates that the police admit that they initiated the complaint on 09-08-98 further supports the Defendant's position that this complaint is not the verified oath or affirmation of the Complainant, but in fact an independent act of the police. This is further supported by the fact that although the police admit that they did not witness the alleged trespass, they fabricated a complaint in the form of a summons and executed an improper arrest based on their fabricated summons. The police, according to their own statements, usurped the powers of both the prosecutor and the judge so as to create a complaint and make an arrest. These facts, which are in the record, clearly show that these police had tampered with the administration of justice and in light of these events raises the responsibility of the Prosecutor to allege facts to offset these serious irregularities.

The police report also states that the Defendant refused to answer any questions and as a result he was put in the intoxication tank for not complying. Clearly the Defendant has a constitutional right to not answer questions if he chooses not to. Especially questions about Mike. As the Court can see, this case stinks.

The officers in this case clearly made an illegal arrest, and illegal search of the Defendant's home, and falsely imprisoned the Defendant. The city is potentially facing serious liability if it should fail to convict the Defendant. It raises the question as to why the Prosecution is pursuing such a clearly weak and irregular case. Defendant hereby raises the issue of conflict of interest and asks the Court to take the necessary steps to ensure the Defendants rights are protected.

1. The Police Report is hearsay and should be stricken. The police did not witness the alleged violation nor did the Defendant make any statements to the police.
2. All allegations of patronizing prostitution should be stricken because even if true, have no bearing on the charge of trespassing.
3. The police can not be considered state’s witnesses because they admit that they didn’t witness anything.
4. The summons was altered, according to the Police Report, after it was signed and should therefore be stricken.
5. The summons does not cite any facts supporting that the Defendant had guilty knowledge as required on the face of the ordinance. Therefore, even if taken as true, does not constitute a crime.
6. A police Officer is not permitted under the law to usurp the powers and duties of the Prosecutor and Judge. The Officer admits he did not witness the alleged violation. He therefore acted as Prosecutor by issuing a complaint in the form of a summons, and acted as Judge in construing his summons as an arrest warrant. Nothing in the law gives a police Officer the power to issue complaints for crimes that he did not witness. Nothing in the law gives a police Officer the power to issue an arrest warrant for a violation he did not witness. On the basis of due process of law this complaint should be dismissed.
7. The Bill of Particulars do not site any facts that support the allegation that the Defendant had guilty knowledge, nor does it even specify the date and time that the alleged warning occurred.

WHEREFORE, for the above stated reasons Defendant asks that this court dismiss the complaint against the Defendant because the information fails to charge an offense, or in the alternative;

1. order the Prosecutor to include facts in the Bill of Particulars indicating facts supporting the element of guilty knowledge; and,
2. order the Prosecutor to include facts in the Bill of Particulars that indicate the date and time that the first visit occurred and what was said to warn the Defendant that he wasn’t welcome; and,
3. find that the police did not witness the alleged trespass; and,
4. order that the Police Report be stricken from the record; and,
5. order that the police be removed from the state’s witness list; and,
6. find that the police usurped the role of Prosecutor; and,
7. find that the police usurped the role of Judge; and,
8. find that the complaint was altered after it was signed; and,
9. order that the summons being used as a complaint be stricken; and,
10. take the necessary steps to ensure the Defendant's rights are protected from conflict of interests.

Marc Perkel * Plaintiff * 10-07-98