IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
plaintiff, )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Law Firm of Wear and Sharp )
Vicki Stringfellow )
Donald R. Duncan - pro se )
The Law Firm of Turner, Reid, )
Duncan Loomer and Patton, P.C., )
defendants, )
MOTION TO STRIKE DEFENDANT'S RESPONSE TO
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGEMENT
================================================
COMES NOW, Plaintiff Marc Perkel, to petition the court to strike
defendant's responses on the basis that the defendants tampered with
evidence. In support of his motion, Plaintiff states as follows:
1) On November 18th 1997 all defendants, in two separate but similar
answers, responded to Plaintiff's motion for summary judgement.
2) Both answers included Exhibit A and Exhibit B which are copies of
faxes sent by the plaintiff. These exhibits are identical in both
responses.
3) Defendants altered Exhibit B to conceal the date it was sent by
crossing out the date of the fax with something similar to a marking
pen. However, the time of Exhibit B was left unaltered.
4) Both answers indicated in their paragraph 4 that Exhibit B was sent
on December 22nd 1994 when, in fact, it was sent on December 21st.
5) Exhibit A, which is unaltered indicates that it was sent on December
22nd 1994 at 2:06pm.
6) Exhibit B indicates that it was sent at 3:58pm.
7) Exhibit B, however, has a second date stamp at the top of the page in
the upper right hand corner indicating that it was in fact sent the
day before on December 21st 1994 instead of the 22nd as both of
Defendant's responses indicated.
8) If Exhibit B had been sent on December 22 at 3:58pm, as the
Defendants indicate, then it would have been sent 2 hours after
Exhibit A. However, the second time stamp on Exhibit B indicates that
Exhibit B was in fact sent the day before Exhibit A.
9) The order of these faxes is crucial to this case. If Exhibit B were
sent after Exhibit A then Exhibit B would supercede Exhibit A. If
however, Exhibit B were sent the day before Exhibit A then Exhibit A
would supercede Exhibit B.
10) Defendants rely on Exhibit B superceding Exhibit A in paragraphs
4,5,6, and 14 to support their argument that the Plaintiff is not
entitled to summary judgement.
11) If Exhibit B were sent after Exhibit A, Plaintiff's case for summary
judgement would be undermined.
12) Defendants altered Exhibit B and misrepresented to this court that
Exhibit B was sent on December 22nd to make it appear that Exhibit B
was sent after Exhibit A.
13) Defendants' conduct constitutes "Tampering with Physical Evidence"
pursuant to Section 575.100 and is an act of obstruction of justice
and fraud upon this court.
14) Defendants' conduct constitutes an admission that they can not win
on the merits of their arguments and that the Plaintiff is entitled
to summary judgement.
WHEREFORE, Plaintiff prays that the Court will:
1) Find that the Defendants tampered with physical evidence for the
purpose of obstructing justice.
2) Find that Defendants' conduct constitutes an admission that the
Plaintiff is entitled to summary judgement.
3) Strike Defendant's answer to Plaintiff's motion for summary judgement
and enter a summary judgement or default judgement in favor of the
Plaintiff.
4) Sanction the Defendants for Tampering with Physical Evidence for the
purpose of obstruction of justice.
5) Grant other relief that the Court deems just and proper.
__________________________________
Marc Perkel * Plaintiff * 11-24-97
IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
plaintiff, )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Law Firm of Wear and Sharp )
Vicki Stringfellow )
Donald R. Duncan - pro se )
The Law Firm of Turner, Reid, )
Duncan Loomer and Patton, P.C., )
defendants, )
SUGGESTIONS IN SUPPORT OF
MOTION TO STRIKE DEFENDANT'S RESPONSE TO
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGEMENT
================================================
In their response to Plaintiff's motion for summary judgement,
Defendants rely heavily on Exhibit B, and specifically that Exhibit B
coming after Exhibit A. Exhibit B is referenced four times in each
answer. Specifically, Defendants state:
1) Paragraph 4 -- "Plaintiff's December 22, 1994 letter to Defendants
Wear and Sharp (Attached hereto as Exhibit B) specifically states
that he was not planning to attend his lawfully noticed deposition."
2) Paragraph 5 -- "Further, Defendants affirmatively state that Wear and
Sharp did not go to the expense of hiring a court reporter for the
deposition because of Plaintiff's prior letter stating that he would
not appear at his deposition. (See Exhibit B) Had Plaintiff indicated
that he intended to appear at his deposition, a court reporter could
have been obtained quickly and Plaintiff's deposition could have been
taken."
3) Paragraph 6 -- "As stated above, Wear and Sharp did not go to the
expense of hiring a court reporter for the deposition because of
Plaintiff's prior letter stating that he would not appear at his
deposition. (See Exhibit B) Had Plaintiff indicated that he intended
to appear at his deposition, a court reporter could have been
obtained quickly and Plaintiff's deposition could have been taken."
4) Paragraph 14 -- "The absence of a court reporter on the morning of
the deposition was due to Plaintiff's letter stating that he would
not attend the deposition. (See Exhibit B) Had the Plaintiff not
informed Wear and Sharp of his intention not to appear for his
deposition, a court reporter could have been obtained and the
Plaintiff's deposition could have been taken."
As the court can see, the date on Exhibit B has been marked out.Defendant's paragraph 4, in both responses, clearly indicate that
Exhibit B was sent on December 22, 1994 when in fact the second date
clearly indicates that Exhibit B was sent the day before Exhibit A. This
is a crucial distinction because it affects which fax is the last word.
Although Exhibit B indicates that the Plaintiff will not attend, Exhibit
A indicates Plaintiff believes he doesn't need to attend, but asks to be
corrected if he's wrong. This indicates that the Plaintiff was willing
to attend if he determined that he was supposed to be there. If B came
after A it would appear that the Plaintiff had changed from "might
attend" to "won't attend". It would make B the last word.
If however Exhibit B were sent the day before Exhibit A then the
opposite is true. Plaintiff is moving from a statement that he won't
attend to a statement that he might attend if he determines that he is
supposed to attend. If Exhibit A is the last word then the Defendants
wouldn't have any basis for assuming that the Plaintiff would not
attend. The Defendants' arguments in paragraphs 4,5,6 and 14, as stated
above, would fail.
If the Defendant knew there was a possibility that the Plaintiff would
attend then they had a duty to have a court reporter there. Without a
good reason for not having a court reporter, their position that there
was a deposition fails. If there was no deposition, then their motion
for sanctions becomes fraud upon the court for which the Plaintiff would
be entitled to relief under Rule 74.06(d).
Plaintiff contends that there is further evidence that Defendants have
actual knowledge that Exhibit A came after Exhibit B in that if B came
after A then Defendants would not need to make the argument (paragraph
3) that they had no duty to inform Plaintiff of his alleged mistake.
Had B been the final word, the issue of duty wouldn't exist. Thus, the
fact that Defendants made that argument indicates they have actual
knowledge that B came before A.
Thus it is clear from the above evidence that the Defendants
deliberately altered physical evidence in a manner to defraud this court
and obstruct justice in an attempt to deny Plaintiff of his lawfully due
summary judgement. Tampering with physical evidence is a crime under
Missouri Statute 575.100 which states:
1. A person commits the crime of tampering with physical evidence if
he:
(1) Alters, destroys, suppresses or conceals any record, document
or thing with purpose to impair its verity, legibility or
availability in any official proceeding or investigation; or
(2) Makes, presents or uses any record, document or thing knowing
it to be false with purpose to mislead a public servant who is
or may be engaged in any official proceeding or investigation.
2. Tampering with physical evidence is a class D felony if the actor
impairs or obstructs the prosecution or defense of a felony;
otherwise, tampering with physical evidence is a class A
misdemeanor.
It is clear to the Plaintiff that Defendant's crossing out of the date
on Exhibit B would easily meet the criteria of Tampering with Physical
Evidence pursuant to Section 575.100.
It is fortunate for the Plaintiff that his fax system put the date on
the fax twice. Had the date that the Defendants crossed out been the
only date on the fax, or had the Defendants crossed out both dates, they
might have gotten away with it. However, because Defendant's were sloppy
covering their tracks, Plaintiff now has a "smoking gun".
When Parties Cheat
------------------
Plaintiff contends that if a party has to cheat to win then they are
admitting that they can not win on the merits of their arguments. It has
been held in Missouri v. Seals that "an attempted subornation is
admissible as an admission by conduct that the party's cause is an
unrighteous one." Fulkerson v. Murdock, 53 Mo. App. 151, loc. cit. 154."
Seals goes on to state: "Evidence to show that an accused has attempted
to fabricate or procure false evidence or destroy evidence against him
is always admissible as showing consciousness of guilt. State v.
Mathews, 202 Mo. 143, 100 S.W. 420."
In this case Defendants cite Exhibit B in four places indicating their
strong reliance on this exhibit. In fact their reliance on this exhibit
is so strong that they committed a Class A misdemeanor, risking
disbarment, fines, and jail, to conceal the fact that Exhibit A
supercedes Exhibit B. One can only conclude that based on the
Defendants' conduct that the Defendants know that the Plaintiff is
entitled to summary judgement.
10/14/74 State of Missouri, v. Soloman Seals, Jr.,
"'An attempt to fabricate evidence is receivable as evidence of one's
guilt of the main facts charged.' 20 Am. Jur. 272, Sec. 289; see also
20 Am. Jur. 192, Sec. 186, p. 265, Sec. 280; 22 C.J.S., Criminal Law,
633, p. 966. Such an attempt is construed as being in the nature of
an admission of guilt and we find no authority against receiving it
in evidence. The latest case in this Court is State v. Smith, 355 Mo.
59, 194 S.W.2d 905, 907, in which we said: 'Evidence to show that an
accused has attempted to fabricate or procure false evidence or
destroy evidence against him is always admissible as showing
consciousness of guilt. State v. Mathews, 202 Mo. 143, 100 S.W. 420.
"Evidence of the fact of an attempted subornation is admissible as an
admission by conduct that the party's cause is an unrighteous one."
Fulkerson v. Murdock, 53 Mo. App. 151, loc. cit. 154. See also State
v. Howe, 287 Mo. 1, 228 S.W. 477."
Other Points
------------
There's an issue that the Plaintiff wants to clarify before this court.
Before this sanction, Commissioner Davis was handling this divorce case.
For some unknown reason, the hearing on sanctions was heard before
Commissioner Tinsley. This hearing and decision by Commissioner Tinsley
was the only time Mr. Tinsley was involved in this case. He therefore
wasn't as familiar with the case as Commissioner Davis was.
In Paragraph 8 defendants state, "Further, Defendant affirmatively
states that during the hearing Plaintiff raised his argument that there
was no court reporter present to take his deposition had he appeared as
required." This statement is untrue, and the reasons are obvious.
It would not have been possible for the Plaintiff to have raised the
argument that there was no court reporter before Commissioner Tinsley
because the Plaintiff just discovered there was no court reporter on
October 10th of this year when Wear and Sharp finally admitted it in
answer to Plaintiff's interrogatories. Had the Plaintiff known earlier
that Wear and Sharp had no court reporter, Plaintiff can assure the
court that he would have used it as part of his pleading against the
Defendants. Thus Defendant's affirmative defense is a dishonest
statement and yet another fraud upon this court. And this fraud is
further evidence that the Defendant's know that the Plaintiff is
entitled to summary judgement because they had no court reporter.
Computer Tyme's Fax System
--------------------------
The faxes of Exhibit A and Exhibit B were not sent with an ordinary fax
machine where a paper is placed in a machine and a copy is sent.
These faxes were sent from a dedicated fax computer and are digital
faxes generated from email messages. Computer Tyme does have a fax
machine and has sent faxes to this court with the machine. But the faxes
in A and B were electronically generated faxes and were sent directly
from a text file without going to paper.
The way the system works is that the message inside the comment box is
sent from an email program. The fax computers read the message and
automatically generate the header, insert the sender, and put the date
and time stamps on the page. The Plaintiff wrote the software to
generate the faxes himself and he is intimately familiar with the process.
Like most faxes, the system puts the date and time at the top of the
page in small print. But because the Plaintiff wanted a 24 hour format
with a time zone designation for international faxes, the Plaintiff
included the generation of a second date in that format. Plaintiff's fax
system is one of the few fax systems in the world that date stamps it's
faxes in two places.
The date and time stamps are electronically generated by the fax
computers at the time the fax is sent. The date and time come from the
computer itself. The computer's clock is set by and locked to the clock
on the file server computer. This computer is automatically set on a
weekly basis by linking into United States Navy atomic clocks that are
used time reference standards. In other words, the time on the faxes is
the right time.
Since the faxes never go to paper and are digitally generated, it isn't
possible that dates can be scribbled over on the sending end. The date
therefore had to have been scribbled over after it was received.
Digital faxes of this kind are easily identified in that they are
perfect. There is no noise, lines, dirt, twists, wrinkles, or any dots
that are out of place. A marker pen on the original will have a fuzzy
edge and will be various shades of black.
__________________________________
Marc Perkel * Plaintiff * 11-24-97
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