MaryJane Duchene MotionDismissCit3-441797

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 Amended
vs. 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
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
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;
(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.
(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
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
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/or
Alternate 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.
Respectfully submitted:
MARCH 16, 2010
Mary Jane Duchene, BA, BS

1144 Ottawa Avenue
West St,. Paul, MN 55118
Fax: 651 457 4376
EXHIBIT 1
EXHIBIT 2

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State of Minnesota District Court

County of Dakota First Judicial District

TO: Judge Perkins and WSP City Prosecutor

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

alternative that a motion compelling the prosecution to make a separate

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

1. THE MINNESOTA RULES OF CRIMINAL PROCEDURE -

PRODUCE A VALID COMPLAINT THAT INCLUDES A STATEMENT OF

THE BASIC FACTS RELIED UPON TO SUPPORT A CONVICTION,

COMPLAINT FILED BY THE PROSECUTION IN THIS CASE CONTAINS

BY THE DEFENDANT, AND THESE RULES REQUIRE THAT THE

By Rule 2.01 the complaint shall consist of a written signed statement of

Rule 17.02 Nature and Contents

Rule 17.06 Motions Attacking Indictment, Complaint or Tab Charge

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

2. THAT SUPPORTING THIS MOTION IS AN EXPERT REPORT

OTTAWA BECAUSE OF THE DISTANCE THE POLICE WOMAN

WINDY AND STORMY WEATHER CONDITIONS, AND THAT THE

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

Defender’s Office, may need to be a witness.

Mary Jane Duchene, BA, BS

County of Dakota First Judicial District

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

2. ATTACHED HERETO IS IS EXHIBIT “2” WHICH IS THE

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

MISINFORMED OR UNINFORMED IN MAKING THE ASSUMPTION

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

Mary Jane Duchene, BA, BS

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