State Ex Rel. Norwood v. Drumm
691 S.W.2d 238
Mo.
1985
Check Treatment

*1 STATE of Missouri ex rel. Albert Earl

NORWOOD, Relator, DRUMM,

The Honorable Bernhardt C.

Jr., Judge, Twenty- Division Four of the Circuit, Respondent.

First Judicial

No. 66123.

Supreme Missouri, Court of

En Banc. Dames, Defender, Mary Asst. Public Clayton, for relator. April 1985. Ashcroft, Gen., Atty. John Carrie Rehearing Denied June Francke, Gen., Atty. City, Asst. Jefferson respondent.

HIGGINS, Judge. E.

Relator Albert Norwood was de- in a criminal tried fendant cause Drumm, respondent Judge Jr. The guilty degree of second found defendant murder, felony murder based on un- derlying felony possession of a con- trolled substance. After verdict at a hear- ing on defendant’s motion for new prosecuting attorney requested assistant file memo of nolle as to leave to charge. Respondent refused to murder accept memo and his intent to indicated deny defendant’s after trial motions and proceed sentencing. Relator then prohibition sought and obtained a writ prevented from the Eastern District that respondent prosecuting from opportunity prosequi the attorney charge. subsequently District The Eastern permanent provisional pro- writ of made granted and this Court transfer. hibition impres- question presented, one of first Missouri, sion is whether attorney and unrestricted has the exclusive to enter a nolle sentencing judg- and before ment. The Court concludes that does quashes prohibition not and the writ of by the Eastern District. issued Respondent defines the common law to enter a nolle 1) prior impaneling as follows: an swearing jury, prosecutor has *2 239 2) right (banc 1953); Lawson, prosequi; absolute to file a nolle 590 630 during prosecutor trial (Mo.App.1982); the a does not 185 have S.W.2d State ex rel. right (Mo. the Cottey, the the without consent of defend- Lodwick v. 497 S.W.2d 873 ant; 3) prosecutor App.1973). after verdict a no or de has the But Missouri statute right only authority to enter a nolle the prosequi when cision addresses extent of his the charge dismissed is a an of higher prosequi offense to enter order in these and a prosequi, lesser included offense remains in- A nolle circumstances. an 4) tact, and; whereby after sentencing judgment prosecutor and of record indicates prosecutor further, a proceed loses all no that he will terminates prosequi charge. a proceedings Relator takes issue and releases defend 3), (Mo. with contending that after the re- Berry, ant. 298 S.W.2d 429 State verdict, turns power 1957); Lawson, 630 unrestricted of S.W.2d at 189. At prosecutor law, a continuing juris revives and continues until common in and most judgment imposes statute, pow enters and sen- dictions absence tence. er is prosequi to enter a nolle vested in the prosecuting attorney. Berry, 298 S.W.2d After trial of the cause respon- before 431; at rel. 365 Nangle, ex Dowd judge, dent a returned verdict of (1955); Mo. 276 137 S.W.2d Grif II, guilty Counts I on and murder in the 1239-1240, fin, 363 Mo. at 258 at S.W.2d degree receiving second and proper- stolen ty. judgment The defendant moved for or, acquittal alternative, for a new Courts and commentators prosecutor trial. The “confessed” defend- that different attend exer considerations Trial, stating ant’s Motion for New “it now power cise to nolle vari at appears that there is evidence that defend- stages prosecution. ous possess’ ant did ‘knowingly not a controlled Brokaw, (S.D.Ill. 60 F.Supp. States v. substance, underlying felony” to the 1945); Wars, Foreign State v. Veterans of Drumm charge. Judge murder indicated (1937); Va Iowa N.W. 916 he deny would the motion for new trial. State, 399, 138 (1926), 33 Del. A. 640 lent v. prosecutor requested then grounds, other 33 Del. 138 A. rev’d on court to an enter order of nolle as Brokaw, F.Supp. on Relying to Count I. The memo did not state the appeals at relator and the court of prompting reasons requested entry. prosecutor common contend that at law stated, confessing earlier in only complete had defendant’s motion for a new impan before a conviction, after defendant’s trial and sworn, power also eled and passed polygraph examination and that through and un trial verdict verified some of the state- sentencing. til of Bro Closer examination given. ments Respondent denied the re- the cases cited therein reveals kaw and quest. When nevertheless uniformly this accept that courts did not prosequi, respon- entered an order of nolle prosecutor’s power broad statement order, to accept dent refused and indi- and the cases fail establish that Missouri proceed cated his intent to to sentence de- “accepted sweep this courts broad years imprison- a term fifteen fendant to Slip at 4. op. common law rule.” ment, by jury. as recommended is that the statement Relator correct 56.060, “following return Brokaw that Section RSMo charges prosecuting attorney pros- with the uncontrolled prosecute ” and all ecutor to enter a nolle revives and contin- to “commence civil as judgment and criminal actions.... A ues until such time entered imposed,” F.Supp. at attorney enjoys great discretion the con sentence charge. repeated ex in numerous cases. Yet duct of a criminal rel. language in the cited refers 258 S.W.2d broadest cases Griffin justice in that the “due administration of to exercise of the very juris- the cases from other protection people by fact few of the enforce- dictions, and none of the Missouri deci- requires ment of criminal laws” sions, involve of a nolle approval obtain the consent and Brokaw, F.Supp. after verdict. entering prose- of the court before (before Minner, jury impaneled); People v. Accord, qui. 120 N.E.2d at 247-248. Id. (1927) (before Ill.App. case sub- *3 65, Kearns, v. 70 Ohio 129 State L.Abs. jury); Foreign mitted to Veterans 543, (C.P.1955). 545 This is the N.E.2d 1146, Wars, 223 274 at 917 Iowa N.W. decisions, practice more modern under Peo- (before jury impaneled); 363 Mo. Griffin, 852, Mooar, Ill.App.3d ple v. 92 48 Ill.Dec. 1235, (same); Berry, 258 S.W.2d at 592 298 186, (1981), many N.E.2d 81 and in 416 (after 430 but be- S.W.2d at venire sworn See, jurisdictions by statute or court rule. Nicolosi, sworn); fore trial v. State People Reagan, v. 395 Mich. e.g., (after jury (Mo.App.1979) S.W.2d (1975). practice Federal is N.W.2d 581 sworn); being v. selected but before more restrictive. Under Federal Rule even Harlston, (Mo.App.1978) 565 S.W.2d 48(a), prosecutor the of Criminal Procedure sworn). (before permit- In the cases venire to terminate must obtain leave of court verdict, ting prosequi after entry of a nolle prosecution by dismissal of an indictment. higher offense prosecutor dismissed a persuade that the better These authorities and sen- and left a lesser included offense approach to the role of the is Valent, 138 A. at 640- tence undisturbed. a after court in the dismissal of cause 642; Dascalakis, 246 v. Commonwealth verdict. (1923). Mass. 140 N.E. 470 The Court limiting A the uncontrolled discre rule accept respondent’s to declines to invitation attorney at this prosecuting tion adopt a rule based on the facts of these comports with cases, stage proceeding of the also of con- latter because absence state, the administra trolling precedent pertaining in this decisions to considerations foreign jurisdictions limiting pros- position from of relator that justice. tion of authority, compelling and other ecutor’s prosecutor need not obtain conditioning justify considerations exercise underlying state the reasons court or even authority prosecuting attor- of the of the ignores the role of prosequi of a nolle ney prosequi after verdict. pro judicial and the court sole discre prosecutor retains cess. The early held Some states prose initiate to tion to determine whether prosequi subject approval to a nolle 593-594; cution, Griffin, 258 S.W.2d proper ex rel. court. State Skinner Lamb, ex rel. Thrash v. (W.Va.1981). Dostert, In 278 S.E.2d 624 (1911), “the first and 141 S.W. 665 particular it has been held that after judge of whether presumptively the best grant to a motion for verdict and refusal terminated.” should be pending prosecution may not dismiss new Cowan, F.2d United States authority of prosecution without the denied, (5th Cir.1975), cert. Klock, 48 ex rel. Bier v. the court. State Woodruff S.Ct. gener La.Ann. So. See (1976). But additional 48 L.Ed.2d 795 (1961). In 22 A 456-465 ally, C.J.S. §§ once consideration factors warrant Newcomer, 284 Ill. Hoyne v. People ex rel. of the jurisdiction prosecutor invokes (1918), noted N.E. 244 the court jury. the case to court and submits among courts as consensus the lack of Here, reveals that the verdict rendered prosecut to the bounds evidence, it found hearing jury, with ing attorney to enter prose support the sufficient to the court. The court the consent of out The trial seeks to dismiss. cutor now subsequent prose remedy of a viewed motion for defendant’s judge considered attorney for fail against the state’s cution order of prosecutor’s new trial and the inadequate and concluded prosecute ure to nolle and determined that neither It is settled at common law nor the possessed defendant showed unbridled discretion good why cause the motions to should sus- nolle a case either tained. trial court acted empaneled within its or after verdict be- jurisdiction sentencing. discussing leave fore When the deri- to prosequi. 48(a) The conclusion that the vation of federal rule noted in to principal opinion, recently exercise discretion one court ex- grant to withhold leave to plained: stage at this accomo- As a literal translation authority dates the of the judiciary and the —“I unwilling prosecute” am —makes attorney. clear, primary purpose the doc- trine government was allow the

Moreover, the prose court as well as the prosecution. cease active At common cutor is under a public consider the law, 48(a) enacted, and before Rule interest fair of crimi administration *4 jur- was within the exclusive justice. Cowan, 512-513; nal 524 F.2d at prosecuting attorney isdiction of at 36, Kenyon, 85 Wis.2d 270 N.W.2d early stages proceedings and a (1978); City Guinther v. Milwau of any nolle could be entered at kee, 334, (1935). Wis. 258 N.W. 865 time empaneled. was participation of trial in court Cases, (7 Wall.) U.S. decision to dismiss a cause verdict after Confiscation 454, 457, (1868). 19 L.Ed. 196 permits judicial the exercise of discretion to check pros the unfettered discretion However, progressed, as the case judicial ecutor. The concept review of prosecuting attorney lost the unilateral prosecutorial discretion is not in novel Mis right prosequi. to enter After souri. ex rel. v. Wy McKittrick heard, was sworn and evidence more, 169, (1939). 132 S.W.2d 979 right had to object defendant to disclosing In addition to the reasons war ranting seeking dismissal and leave en stage effect of the at that awas ter prosequi, a nolle attor acquittal. verdict of United States ney may or the defendant move for a new Shoemaker, (C.C.D.Ill. 27 F.Cas. 1066 trial newly evidence, based on discovered 1840) (No. 16,279). prosecu While nobis, seek a of error writ coram or a writ tor’s unilateral enter a nolle corpus of habeas based on newly discover apparently just revived ed evidence. returned, once a sentence judgment or been handed down final petition prohibition, On a writ re- entered, right pros that unilateral view of this Court is limited to whether the again extinguished. ecutor was United jurisdiction acted without or act- (S.D. Brokaw, F.Supp. States v. ed in excess of jurisdiction. The Court Ill.1945) concludes the trial court had deny prosequi. to enter leave Ac- States, F.Supp. v. United Korematsu cordingly, prohibition (N.D.Calif.1984). writ gener- 1410-11 See quashed. Miller, ally (1969). F. Prosecution 307-09 generally recognized It is absent RENDLEN, GUNN, C.J., and BILL- controlling prose- statute or court rule the INGS, DONNELLY, JJ., BLACKMAR and possessed he cutor retains concur. common 21 Am.Jur.2d law. See Criminal apparently re- Law 513-17. This Court §§ WELLIVER, J., in sepa- concurs in result law affirmed its adherence to the common rate opinion filed. rule in ex rel. Griffin WELLIVER, Judge, concurring in result. (1953). Mo. 258 S.W.2d however, only majority I in jurisdictions, concur the result. either through objection.” statute or court decision have al- ment over the defendant’s Ri require tered the common law rule and now 29 n. naldi v. United court, n. perhaps consent of the 98 S.Ct. 54 L.Ed.2d 207 defendant, empan- appear after the It would that the federal has been Frazier, in Meyers eled. 319 S.E.2d rule limits the district court See (W.Va.1984). request contrary 792 n. 13 to cases it is to the where public manifest interest. See United agree principal opinion I to the with (9th Weber, 721 F.2d States v. majori extent that it follows the lead of the Cir.1983). That the believes ty jurisdictions and modifies the common defendant innocent is not within itself a However, disagree rule. I law with necessitating of court reason that leave principal opinion’s discussion of the stan granted. In a federal case where the As judicial prosecutorial dard of review of dis Attorney sistant States General principal opinion" unwisely cretion. The sought to dismiss a after trial and suggests must “demon sentencing the defend because believed good cause” for the nolle strate upon ant innocent based new information has and that trial court court), (perhaps not admissible the Ninth grant deny prosequi. The the nolle explained: Circuit view, leaving prosecu better while Existence of substantial reasonable authority, give tor unrestricted is to defer guilt to the of the defendant doubt as prosecutor1 opinion ence to the by the Ex- can and should be considered deny the not allow the trial court to determining to initiate ecutive whether clearly unless the *5 prosecution; or it is the continue a abusing his or her discretion. The trial Attorney simply not of the United States court should “enter the ab prosecute, justice. Berger to do prosecutor’s sent a clear abuse of the dis 78, 88, 55 S.Ct. Only entry of cretion. where the the nolle 629, 633, (1935). In decid- 79 L.Ed. capricious vexatiously repe or or terminate a ing to initiate whether prosecutor’s titious will the court limit the has access to power.” People Bradley, Ill.App.3d into consideration a wide and must take 470 N.E.2d Ill.Dec. may not range that of information (citations omitted). (1984) See also State at trial. No doubt competent evidence Abbati, NJ.Super. 478 A.2d part of the reason this is (1984)(trial prosecutor’s court reviews making given latitude must be wide judgment). decision for clear error of Such Seeking dismissal be- those decisions. contemplates that the a standard of review of such a reason- cause of the existence prosecutor state the reason for the nolle “clearly contrary to able doubt was not prosequi, and a trial court that denies public interest.” the manifest prosecu request why the reasons state beyond acted his or her discretion. tor has Id. bar, ap- rule, prosecutor’s principal In the case at the federal

Under “[t]he prosequi was requirement parent reason for the nolle ‘leave of court’ object of the defendant innocent against protect a defendant that believed apparently to harassment, felony. of the reasons charging, underlying One e.g., prosecutorial disbelieving defend- prosecutor’s for the dismissing, recharging, when the passed defendant had guilt ant’s was that to dismiss an indict- moves Government Smith, pursuant prosequi was entered supra, meanor if a nolle the Court noted that 1. In State v. judge agreement corrupt was in a with the defendant prosecutor and not the trial 558.170, position Arguably all the facts and the to know this better RSMo 1969. § others. policy various considerations. suggests unrestricted author- either unilateral or might be noted that supra S.W.2d at 594. It ity the statute to the extent criminal laws in until the revision of our was not violated. charged with a misde- could he polygraph While examination. Missou- ri has not accepted polygraph results as

proof guilt, we closing would be our

eyes reality if we fail many years prosecutors have utilized

polygraph arriving results at their deci- prosecute.

sion to country experienced

In that has

pains trial, of the Sacco-Vanzetti the Bruno ease,

Hauptman Scopes are necessarily

verdicts infallible and justice

sacrosanct and demands that safeguard by

added prosecu- exercised

tor not be unnecessarily restricted. judge

The trial has the to err I

and would therefore concur result quashing the writ. appeal,

When reviewed on I hope would

that the Court favored, would use the more logical,

more just more fair and stan-

dard review herein set forth. *6 Jeremy

In re David COOK.

Virginia COOK, Petitioner, Sue

Danny COOK, Respondent. C.

No. 65704.

Supreme Missouri, Court of

En Banc.

May 29, 1985.

Rehearing Denied June