386 U.S. 213 (1967), 100, Klopfer v. North Carolina

Docket Nº:No. 100
Citation:386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1
Party Name:Klopfer v. North Carolina
Case Date:March 13, 1967
Court:United States Supreme Court

Page 213

386 U.S. 213 (1967)

87 S.Ct. 988, 18 L.Ed.2d 1



North Carolina

No. 100

United States Supreme Court

March 13, 1967

Argued December 8, 1966



Petitioner's trial on a North Carolina criminal trespass indictment ended with a declaration of a mistrial when the jury failed to reach a verdict. After the case had been postponed for two terms, petitioner filed a motion with the trial court in which he petitioned the court to ascertain when the State intended to bring him to trial. While this motion was being considered, the State's prosecutor moved for permission to take a "nolle prosequi with leave," a procedural device whereby the accused is discharged from custody but remains subject to prosecution at any time in the future at the discretion of the prosecutor. Although petitioner objected that the trespass charge was abated by the Civil Rights Act of 1964 and that entry of the nolle prosequi order would violate his federal right to a speedy trial, the trial court, without stated justification, granted the prosecutor's motion. On appeal, the State Supreme Court affirmed the trial court's action, holding that, while a defendant has a right to a speedy trial if there is to be a trial, that right does not require the State to prosecute if the prosecutor, in his discretion and with the court's approval, elects to take a nolle prosequi.

Held: By indefinitely postponing prosecution on the indictment over petitioner's objection and without stated justification, the State denied petitioner the right to a speedy trial guaranteed to him by the Sixth and Fourteenth Amendments of the Federal Constitution. Pp. 219-226.

266 N.C. 349, 145 S.E.2d 909, reversed and remanded.

Page 214

WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

The question involved in this case is whether a State may indefinitely postpone prosecution on an indictment without stated justification over the objection of an accused who has been discharged from custody. It is presented in the context of an application of an unusual North Carolina criminal procedural device known as the "nolle prosequi with leave."

Under North Carolina criminal procedure, when the prosecuting attorney of a county, denominated the solicitor, determines that he does not desire to proceed further with a prosecution, he may take a nolle prosequi, thereby declaring "that he will not, at that time, prosecute the suit further. Its effect is to put the defendant without day, that is, he is discharged and permitted to go whithersoever he will without entering into a recognizance to appear at any other time." Wilkinson v. Wilkinson, 159 N.C. 265, 266-267, 74 S.E. 740, 741 (1912). But the taking of the nolle prosequi does not permanently terminate proceedings on the indictment. On the contrary,

When a nolle prosequi is entered, the case may be restored to the trial docket when ordered by the judge upon the solicitor's application.

State v. Klopfer, 266 N.C. 349, 350, 145 S.E.2d 909, 910 (1966). And if the solicitor petitions the court to nolle prosequi the case "with leave," the consent required to reinstate the prosecution at a future date is implied in the order, "and the solicitor (without further order) may have the case restored for trial." Ibid. Since the indictment is not discharged by either a nolle prosequi or a nolle prosequi with leave, the statute of limitations remains tolled. State v. Williams, 151 N.C. 660, 65 S.E. 908 (109).

Page 215

Although entry of a nolle prosequi is said to be "usually and properly left to the discretion of the Solicitor," State v. Moody, 69 N.C. 529, 531 (1873), early decisions indicate that the State was once aware that the trial judge would have to exercise control over the procedure to prevent oppression of defendants. See State v. Smith, 129 N.C. 546, 40 S.E. 1 (1901); State v. Thornton, 35 N.C. 256 (1852). But, in the present case, neither the court below nor the solicitor offers any reason why the case of petitioner should have been nolle prossed except for the suggestion of the Supreme Court that the solicitor, having tried the defendant once and having obtained only a mistrial, "may have concluded that another go at it would not be worth the time and expense of another effort." 266 N.C. at 350, 145 S.E.2d at 910. In his brief in this Court, the Attorney General quotes this language from the opinion below in support of the judgment.

Whether this procedure is presently sustained by the North Carolina courts under a statute or under their conception of the common law procedure is not indicated by the opinion of the court, the transcript or the briefs of the parties in the present case. The only statutory reference to a nolle prosequi is in § 15-175, General Statutes of North Carolina,1 which, on its face, does not [87 S.Ct. 990] apply to the facts of this case. Perhaps the procedure's

Page 216

genesis lies in early nineteenth century decisions of the State's Supreme Court approving the use of a nolle prosequi with leave to reinstate the indictment, although those early applications of the procedure were quite different from those of the period following enactment of § 15-175. Compare State v. Thompson, 10 N.C. 613 (1825), and State v. Thornton, 35 N.C. 256 (1852) (capias issued immediately after entry of the nolle prosequi with leave), with State v. Smith, 170 N.C. 742, 87 S.E. 98 (1915) (capias issued eight years after a nolle prosequi with leave was taken, even though the defendant had been available for trial in 1907).

The consequence of this extraordinary criminal procedure is made apparent by the case before the Court. A defendant indicted for a misdemeanor may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar for trial.2 In spite of this result, both the Supreme Court and the Attorney General state as a fact, and rely upon it for affirmance in this case, that this procedure, as applied to the petitioner, placed no limitations upon him, and was in no way violative of his rights. With this we cannot agree

This procedure was applied to the petitioner in the following circumstances:

Page 217

On February 24, 1964, petitioner was indicted by the grand jury of Orange County for the crime of criminal trespass, a misdemeanor punishable by fine and imprisonment in an amount and duration determined by the court in the exercise of its discretion.3 The bill charged that he entered a restaurant on January 3, 1964, and,

after being ordered . . . to leave the said premises, willfully and unlawfully refused to do so, knowing or having reason to know that he . . . had no license therefor. . . .

Prosecution on the indictment began with admirable promptness during the March, 1964, Special Criminal Session of the Superior Court of Orange County; but, when the jury failed to reach a verdict, the trial judge declared a mistrial and ordered the case continued for the term.

Several weeks prior to the April, 1965, Criminal Session of the Superior Court, the State's solicitor informed petitioner of his intention to have a nolle prosequi with leave entered in the case. During the session, petitioner, through his attorney, opposed the entry of such an order in open court. The trespass charge, he contended, was abated by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, 379 U.S. 306 (1964). In spite of petitioner's opposition, the court indicated that it would approve entry of a nolle prosequi with leave if requested to do so by the solicitor. But the solicitor

Page 218

declined to make a motion for a nolle prosequi with leave. Instead, he filed a motion with the court to continue the [87 S.Ct. 991] case for yet another term, which motion was granted.

The calendar for the August, 1965, Criminal Session of the court did not list Klopfer's case for trial. To ascertain the status of his case, petitioner filed a motion expressing his desire to have the charge pending against him

permanently concluded in accordance with the applicable laws of the State of North Carolina and of the United States as soon as is reasonably possible.

Noting that some 18 months had elapsed since the indictment, petitioner, a professor of zoology at Duke University, contended that the pendency of the indictment greatly interfered with his professional activities and with his travel here and abroad. "Wherefore," the motion concluded,

the defendant . . . petitions the Court that the Court, in the exercise of its general supervisory jurisdiction, inquire into the trial status of the charge pending against the defendant and . . . ascertain the intention of the State in regard to the trial of said charge and as to when the defendant will be brought to trial.

In response to the motion, the trial judge considered the status of petitioner's case in open court on Monday, August 9, 1965, at which time the solicitor moved the court that the State be permitted to take a nolle prosequi with leave. Even though no justification for the proposed entry was offered by the State, and, in spite of petitioner's objection to the order, the court granted the State's motion.

On appeal to the Supreme Court of North Carolina, petitioner contended that the entry of the nolle prosequi with leave order deprived him of his right to a speedy trial as required by the Fourteenth Amendment to the United States Constitution. Although the Supreme

Page 219

Court acknowledged that entry...

To continue reading