Manning v. Engelkes

• Decision Date: 27 June 1979
• Docket Number: No. 62521,62521
• Parties: John Raymond MANNING, Plaintiff, v. The Honorable Carroll E. ENGELKES, Judge, Blackhawk County District Court, In His Official Capacity Only, Defendant.
• Court: Iowa Supreme Court

Page 7

281 N.W.2d 7

John Raymond MANNING, Plaintiff, v. The Honorable Carroll E. ENGELKES, Judge, Blackhawk County District Court, In His Official Capacity Only, Defendant.

No. 62521.

Supreme Court of Iowa.

June 27, 1979.

Alfredo G. Parrish, of Parrish & Del Gallo, Des Moines, for plaintiff.

David J. Dutton and James R. Hellman, of Mosier, Thomas, Beatty, Dutton, Braun & Staack, Waterloo, for defendant.

Considered by REYNOLDSON, C. J., and UHLENHOPP, McCORMICK, McGIVERIN and LARSON, JJ.

McGIVERIN, Justice.

Plaintiff John Raymond Manning challenges by way of writ of certiorari the defendant district court's ruling denying the state's motion to dismiss a criminal charge against him. We believe the court acted within its legal discretion and annul the writ.

Manning and Blair Edward Jones were charged in the same trial information with robbery in the first degree in violation of section 711.2, The Code Supp.1977, in connection with the hold-up of a Wareco gas station on May 19, 1978 in Waterloo. Manning actually was the person who held up the station attendant with a sawed-off shotgun. Jones was not present at the robbery scene.

At Jones' trial, Manning testified as a witness for the state. Jones was convicted, presumably on a theory of aiding and abetting Manning.

Thereafter, the state filed a motion to dismiss the case against Manning. The motion alleged: that Manning had consistently maintained that he had been compelled to commit the robbery by Jones' threats; that Manning testified in the companion case of Jones without any promises from the state; that the guilty verdict in Jones' case was based on Manning's credibility as a witness; and that Manning had been forced to commit the crime by Jones and had a defense of compulsion to the robbery charge.

Defendant judge was also the trial judge in the Jones case and therefore was familiar with Manning's testimony.

Manning did not join in the motion, but, understandably, did not resist it.

The state did not ask for oral argument or request the motion be set down for hearing. The motion was not verified or supported by affidavit. No evidentiary record was made. The court ruled on the motion without hearing arguments.

Judge Engelkes overruled the motion to dismiss. Preliminarily reciting that he had been the trial judge in Jones' companion case and had heard the testimony of Manning in that case, the court found "that the facts as heard by this court do not support the State's motion to dismiss and it should therefore be denied."

We granted Manning's petition for writ of certiorari to review the legality of the court's ruling. The state did not resist the petition. Defendant judge was not represented when we considered the petition but is now represented by independent counsel.

Defendant's return on the writ included a transcript of Manning's testimony in the Jones trial. This testimony was considered by the judge in passing on the state's motion to dismiss.

Certiorari, unless specifically authorized by statute, lies only when the inferior court or tribunal, exercising judicial functions, is alleged to have exceeded its proper jurisdiction or otherwise acted illegally. Iowa R.Civ.P. 306. Certiorari ordinarily is not triable before us de novo. Carstensen v. Board of Trustees of the Police Retirement System, 253 N.W.2d 560, 561-62 (Iowa 1977).

We address the following issues in our review:

1. Whether the judge should have disqualified himself from ruling on the motion to dismiss when he had previously presided over a separate trial of a co-defendant;

2. Whether the court should have set the motion to dismiss for hearing and given notice of hearing to the parties before ruling;

3. Whether the court has discretion under Iowa R.Crim.P. 27(1) to deny the state's motion to dismiss; and

4. Whether the court abused its discretion in denying the state's motion to dismiss in the present case.

The dismissal of pending criminal prosecutions on motion of the court or county attorney is governed by Iowa R.Crim.P. 27(1) which provides:

1. Dismissal generally; effect. The court, upon its own motion or the application of the county attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor.

It is apparent that only the county attorney and the court may apply or move for dismissal under this rule. Manning, the defendant in the criminal prosecution, could not have moved for dismissal or joined in the state's motion under rule 27(1). Although the state filed the original motion, it is Manning, and not the state, who brought this certiorari action to challenge trial court's authority to deny the state's motion.

Because of the peculiar procedural posture of this case, a question arises as to the standing or entitlement of Manning to issuance of the writ of certiorari where he was not authorized to make or join in the state's motion under rule 27(1). We pass the question because it does not bear on our jurisdiction to decide this case. Neither party briefed nor argued the issue before us. However, for authority generally bearing on the question see City of Des Moines v. Elliott, 267 N.W.2d 44, 45 (Iowa 1978) (city allowed certiorari to challenge adverse ruling sustaining defendant's motion to dismiss for lack of speedy trial); Orr v. Jackson, 149 Iowa 641, 128 N.W. 958 (1910) (complaining witness allowed certiorari to challenge convicted defendant's release on bail pending appeal of dismissal order on his habeas corpus petition). But see Metcalf v Mauldin Manufacturing Co., 264 S.C. 196, 213 S.E.2d 729 (1975) (no standing for defendant to appeal denial of plaintiff's motion for voluntary nonsuit); Blodgett v. McVey, 131 Iowa 552, 108 N.W. 239 (1906) (certiorari not granted and action of inferior tribunal not annulled absent showing of prejudice); Mundy v. Warren, 268 N.W.2d 213, 218 (Iowa 1978) (no standing to appeal alleged instructional error against co-defendant absent showing of prejudice). See generally 14 Am.Jur.2d Certiorari § 31, at 808; 14 C.J.S. Certiorari §§ 47, 50, at 196, 198.

Assuming Manning's entitlement to the writ, we proceed to the merits of the case.

I. Should the judge have disqualified himself? Plaintiff contends defendant Judge Engelkes was under obligation to recuse himself under Canon 3C(1)(a), Iowa Code of Judicial Conduct, and thereby avoid ruling on the motion altogether. Canon 3C(1)(a) provides in part:

C. Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; * * *

In State v. Smith, 242 N.W.2d 320 (Iowa 1976), we reviewed Canon 3C and concluded that "evidence presented in the trial of a prior cause, or definite views on the law, create no personal bias since they do not stem from an extrajudicial source." Id. at 323-24.

Since evidence presented in the trial of the previous Jones case cannot give rise to a "personal bias" which necessitates recusal, trial court's role in the prosecution of plaintiff's co-defendant is not sufficient ground to require recusal.

II. Should the court have set the motion for hearing? Plaintiff tangentially asserts trial court was obligated to provide a hearing on the state's dismissal motion to satisfy the requirements of due process under Article I, Section 9, Iowa Constitution, and Amendments 5 and 14, United States Constitution. Although the basis for this claim is unclear, it appears plaintiff is asserting the right to a hearing on the recusal issue. The merits of that claim were discussed in division I above. Since Manning could not have made or joined in the motion and, in any event, recusal is not justified on the face of plaintiff's assertions, failure to provide hearing on this issue is not a sufficient basis for sustaining the writ.

We also note plaintiff did not raise this issue in his petition for certiorari before us. We have no obligation to consider issues not raised in the petition.

III. Did the court have discretion to deny state's motion to dismiss? Under the common law, in absence of a controlling statute or rule of court, the power to dismiss a criminal charge, or enter a Nolle prosequi, lies in the sole discretion of the prosecutor. See Bucolo v. Adkins, 424 U.S. 641, 642, 96 S.Ct. 1086, 1087, 47 L.Ed.2d 301, 303 (1976). 21 Am.Jur.2d Criminal Law § 514, at 504.

In many jurisdictions the common law power of the prosecutor has been altered by statutory enactment, rule, or judicial decision to vest some authority over prosecutorial dismissal motions with trial court. See, e.g., Application of Parham, 6 Ariz.App. 191, 431 P.2d 86 (1967) (rule); People v. Tanner, 151 Cal.Rptr. 299, 587 P.2d 1112 (1978) (rehearing granted Feb. 8, 1979) (statute); People v. District Court, 586 P.2d 1329 (Colo.1978) (rule); State v. Fixaris, 327 A.2d 850 (Me.1974) (rule); People v. Nelson, 66 Mich.App. 60, 238 N.W.2d 201 (1976) (statute); State v. Aubol, 309 Minn. 323, 244 N.W.2d 636 (1976) (rule); State v. Coate, 558 P.2d 647 (Mont.1976) (statute); State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974), Cert. denied 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975) (statute); State v. Ashby, 43 N.J. 273, 204 A.2d 1 (1964) (rule); State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959) (statute); State v. Trocodaro, 36 Ohio App.2d 1, 301 N.E.2d 898 (1973), Cert. denied 415 U.S. 993, 94 S.Ct. 1595, 39 L.Ed.2d 891 (1974) (statute); and State v. Kenyon, 85 Wis.2d...