Food Fair Stores, Inc. v. Joy, 8

Citation389 A.2d 874,283 Md. 205
Decision Date17 July 1978
Docket NumberNo. 8,8
PartiesFOOD FAIR STORES, INC. v. Teresa Carol JOY. Misc.
CourtCourt of Appeals of Maryland

Gerson B. Mehlman, Baltimore (George D. Solter and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief), for appellant.

R. Douglas Jones, Baltimore (Joseph I. Huesman and Lerch & Huesman, Baltimore, on the brief), for appellee.


LEVINE, Judge.

Pursuant to Maryland Code (1974), § 12-601 of the Courts and Judicial Proceedings Article, the United States District Court for the District of Maryland has certified two questions for resolution by this Court: First, whether a release in which a defendant accused of committing the crime of shoplifting has discharged the complaining party from all civil liability is void as a matter of public policy because it was executed in consideration of a nolle prosequi entered by the State's Attorney. Secondly, if such a release is not void as against public policy, do the circumstances under which it was executed constitute duress as a matter of law? We hold that under the facts of this case, the release was neither in contravention of public policy nor the product of duress.

The episode which spawned this dispute occurred on August 4, 1975, when a security guard employed by appellant at its supermarket in Glen Burnie arrested appellee who was then shopping for groceries in the company of her two little girls. According to the employee, he had observed appellee place a package of luncheon meat in her shoulder bag before proceeding through the checkout line and then leave the store without paying for the item. He further stated that on being confronted, appellee returned to the interior of the store, removed the package from her purse and placed it on a shelf. She allegedly offered to pay for the merchandise, valued at $2.49, after the special police officer placed her under arrest. At all times appellee denied committing the offense, claiming instead that she had returned the package of meat to a shelf in the canned vegetable aisle after deciding not to buy it, and only then moved toward the checkout line. She subsequently reentered the store at the request of the officer solely for the purpose of returning the merchandise to its proper location in the meat cooler, but was placed under arrest before she could do so. 1

After being detained at the store, appellee was taken to Anne Arundel County police headquarters at Millersville, where she was formally charged with the crime of shoplifting. She then retained counsel who informed the prosecuting attorney of her willingness to submit to a polygraph test with the understanding that the results would be offered without objection at the criminal trial. With the agreement of the prosecutor, the Maryland State Police administered such a test, the outcome of which, according to appellee's then counsel, was consistent with her claim of innocence. Subsequently, the prosecutor apparently refused to stipulate to the admissibility of the test, but instead wrote to defense counsel in January 1976 that he would dismiss the charge if a "civil release were to be given to the Complainants." Alternatively, he offered to enter a dismissal even without such a release on the condition that he receive a written statement from appellant indicating that it did not object to that action being taken. Defense counsel forwarded the offer of the State's Attorney to appellant, but received no response to his request for the statement suggested by the prosecutor.

On May 25, 1976, the date on which the criminal case was to be tried, appellee executed the release in question and the State's Attorney entered the nolle prosequi in open court. Several weeks later, appellee brought a diversity action against appellant in the federal court, seeking damages for false imprisonment, malicious prosecution and slander. Appellant responded with a motion for summary judgment founded upon the release executed by appellee. The resulting dispute as to the validity of the release eventuated in this certification proceeding.


We recognize at the outset that virtually all agreements by a prosecuting attorney to enter a nolle prosequi in a criminal case are affected by considerations of public policy. This is particularly the case where it appears that such action is taken by the prosecutor as part of a bargain that has the effect of resulting in a private gain. The rule traditionally followed in this country is that bargains which tend to stifle criminal prosecution, whether by suppressing investigation of crime or by deterring citizens from their public duty to assist in the detection or punishment of crime, are void as against public policy. 14 S. Williston, A Treatise on the Law of Contracts S 1718 (3d ed. 1972); 6A A. Corbin, Contracts S 1421 (1962). Since public policy dictates that violations of the criminal laws be duly prosecuted, agreements to refrain from instituting criminal prosecutions are deemed inimical to the impartial administration of justice. 2

The foregoing principles were recognized long ago by this Court in Wildey v. Collier, 7 Md. 273, 61 Am.Dec. 346 (1854). There a mortgage was given as security for five promissory notes which were delivered as partial consideration for a promise by the mortgagee-payee to procure from the governor a nolle prosequi of an indictment pending against the maker of the notes. In affirming a decree sustaining exceptions to the ratification of a sale under the mortgage, the Court held that the agreement to seek the nolle prosequi contravened public policy, not because the agreement to obtain executive clemency was itself illegal, but because of the possibility that the governor might have been "induced to act upon considerations suggested by a Party having an interest to produce false impressions on his mind." 7 Md. at 279 (emphasis added).

Similarly in Schirm v. Wieman, 103 Md. 541, 545, 63 A. 1056, 1057, 7 L.R.A., N.S., 175 (1906), holding that a contract entered into by the victim of a theft for the return of his stolen property did not offend public policy, we nevertheless reaffirmed our adherence to the venerable rule:

"(I)t is of public interest and in accordance with public policy that the laws for the protection of property shall be effective, in order that the offenders may be promptly apprehended and convicted. Therefore all proposed agreements made with the thief or with anyone, by which the apprehension of the criminal, his trial or conviction may be prevented or obstructed, are contrary to public policy, and absolutely void."

Inasmuch as the release in dispute here was executed in reliance upon the State's Attorney's promise to enter a nolle prosequi on the shoplifting charge, an argument might be made that the public policy against contracts which obstruct criminal prosecutions ought to bar enforcement of the compromise agreement in the present case. In our opinion, however, the general rule does not govern the outcome of this case for reasons that follow.

No reported decision in Maryland or elsewhere has come to our attention in which an agreement for the entry of a nolle prosequi under circumstances similar to those present here has been challenged on grounds of public policy. This case, for example, is unlike those in which an agreement has been struck down where a private party typically the civilian complainant has agreed to refrain from initiating or pressing criminal charges. In Wilson v. United States Lines, 114 N.J.Super. 175, 275 A.2d 457, 459 (1971), where the complainant and a criminal defendant charged with theft agreed that the prosecution would be discontinued in return for restitution of the stolen property and a general release of all civil claims, the court held that the release did not bar recovery for malicious prosecution, applying the general rule that "an agreement to forbear prosecution of a criminal case is void as against public policy." See Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601, 606 (1968); Bowyer v. Burgess, 54 Cal.2d 97, 4 Cal.Rptr. 521, 522, 351 P.2d 793, 794 (1960); Hazen v. Rich's, Inc., 137 Ga.App. 258, 223 S.E.2d 290, 293 (1976); Murphy v. Rochford, 55 Ill.App.3d 695, 13 Ill.Dec. 543, 371 N.E.2d 260, 264 (1977); Groening v. Nowlen, 369 Mich. 28, 118 N.W.2d 998, 1001 (1963). In each of these cases the victim himself attempted "to wrest the criminal proceedings, open to him, from their proper purpose, and make use of them as a means of coercing the defendant" into an agreement. Portner v. Kirschner, 169 Pa. 472, 32 A. 442, 443 (1895).

In the instant case, however, we are faced with an agreement between the criminal defendant and the prosecuting attorney, who, having correctly determined that there was probable cause for bringing the charge, elected in good faith to exercise his discretion by entering a nolle prosequi in exchange for the defendant's release of the complainant from all civil liability. Particularly significant in this respect is the absence of any evidence that appellant participated in the decision, directly or indirectly. On the contrary, the record reflects only that the State's Attorney acted for himself in conducting the negotiations with counsel for appellee. 3

Clearly, then, this is not a case where an alleged victim of a crime attempts to apply the leverage of a criminal prosecution supported by probable cause or not to his own advantage, either by extracting some form of compensation from the accused or by securing a release from civil liability. Thus, the very purpose which lies at the core of the public policy rule to prevent perversion of the administration of justice would in no way be furthered by nullifying the release in question here.

Furthermore, since it was the State's Attorney himself who entered into the agreement with the accused, this case is...

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