State v. Clinch, 335 S.W.3d 579

Clincha convicted of first-degree murder and appeals challenging dismissal with prejudice, stated as improper after State's bad-faith nolle prosequi to avoid a judge's ruling on imminence in defense of others instruction.
State dismissed charges by nolle prosequi following a trial-court ruling excluding the word 'imminent' from the defense of others instruction and later refiled.
Court allowed State to refile before jeopardy attached, citing State's broad prosecutorial discretion and lack of prejudice to Clinch.
Clinch challenged: (a) the nolle prosequi without court approval to refile; (b) the 'imminent' term in the defense-of-others instruction; (c) exclusion of Clinch’s brother as a witness.
Evidence showed Clinch planned the killing after learning of J.B.’s progress in anger management and attempted supervised visitation, including pre-incident shooting lessons and purchases; the murder occurred September 2, 2007; Clinch left a note indicating motive and disapproval of J.B. configurations.
The court affirmed the conviction, holding no abuse of discretion in the nolle prosequi/refile procedure, affirming the jury instruction including 'imminent,' and upholding the exclusion of Clinch’s brother as a witness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the nolle prosequi and refiling, after a ruling on jury instructions, was an abuse of discretion	Clinch argues bad faith and forum shopping.	State contends broad discretion to dismiss without prejudice and refile.	No abuse; nolle prosequi permissible before jeopardy attached.
Whether the defense-of-others instruction may include the word 'imminent' under §563.031	Clinch claims 'imminent' is not required post-2007 amendment.	State maintains 'imminent' respect to deadly-force standard remains.	Instruction including 'imminent' upheld; conforms to statute and MAI-CR3d 306.08A.
Whether excluding Clinch’s brother as a witness was an abuse of discretion	Defense claims brother had testimony relevant to the receipt and discovery.	State argues non-testifying due to rule violation and lack of prejudice.	No abuse; court acted within discretion; no prejudice shown.

State v. Keightley, 147 S.W.3d 179 (Mo.App.2004) (nolle prosequi/refile discretion; no prejudice shown in general rule)
State v. Honeycutt, 96 S.W.3d 85 (Mo.banc 2003) (prosecutor’s broad discretion; dismissal without prejudice not converted to with prejudice)
Griffin v. Smith, 258 S.W.2d 590 (Mo.banc 1953) (prosecutor's sole discretion to enter nolle prosequi)
Lonon, 56 S.W.2d 378 (Mo. App. 1932) (nolle prosequi before jeopardy; not a bar to subsequent prosecution)
Flock, 969 S.W.2d 389 (Mo.App.1998) (nolle prosequi power; jeopardy considerations)
Pippenger, 741 S.W.2d 710 (Mo.App.1987) (refiling allowed after nolle prosequi)
Maggard, 906 S.W.2d 845 (Mo.App.1995) (nolle prosequi following suppression motion; refiling permitted)
Thomas, 161 S.W.3d 377 (Mo.banc 2005) (deadly force standard—imminence requirement narrative)
Pounders, 913 S.W.2d 904 (Mo.App.1996) (real/apparently real necessity for deadly force)
Dale, 874 S.W.2d 446 (Mo.App.1994) (imminence in deadly force analysis)
Barraza, 238 S.W.3d 187 (Mo.App.2007) (statutory interpretation—ambiguous vs unambiguous)
Graham, 204 S.W.3d 655 (Mo.banc 2006) (statutory interpretation—plain meaning governs)