Nichols v. McCarthy
| Decision Date | 14 December 2021 |
| Docket Number | No. ED 109897,ED 109897 |
| Citation | 638 S.W.3d 902 |
| Parties | Cordell NICHOLS, Jr., Appellant, v. Thomas MCCARTHY, Respondent. |
| Court | Missouri Court of Appeals |
Matthew G. Mueller, 3407 South Jefferson Avenue, St. Louis, Mo. 63118, for appellant.
James Simeri, P.O. Box 861, St. Louis, Mo. 63188, for respondent.
The petitioner, Cordell Nichols, Jr., appeals the judgment entered by the Circuit Court of the City of St. Louis in favor of the respondent, Judge Thomas McCarthy, in this declaratory judgment action. Nichols sought a declaration that Missouri Supreme Court Rule 33.01(c) requires the circuit court to consider a defendant's ability to pay when setting monetary conditions of release in the initial arrest warrant in criminal cases.
We hold Missouri Supreme Court Rules 22.04 and 33.01 require only that the court rely on available information—meaning information present or ready for immediate use—when setting bond in an initial arrest warrant. Generally, information regarding a defendant's ability to pay is not available to the court when it issues the initial warrant. Therefore, we further hold that the rules do not impose upon police, prosecutors, and courts an obligation to investigate a defendant's financial resources and ability to pay before an initial warrant for arrest can be issued under Rule 22.04. We affirm the trial court's judgment.
On December 30, 2019, Officer Smith of the St. Louis Metropolitan Police Department was on patrol in the City of St. Louis. Officer Smith was advised of a suspect with a firearm on the Metrolink train, and upon entering the train, security officers directed Officer Smith to Nichols. Officer Smith conducted a pat down search for safety, and discovered a firearm concealed in a nylon bag under Nichols's sweatshirt. Officer Smith handcuffed Nichols, and inquired into Nichols's pedigree, which revealed a 2017 felony conviction for second-degree burglary.
On December 31, 2019, the State charged Nichols via complaint with the class D felony of unlawful possession of a firearm. The probable cause statement accompanying the complaint listed Nichols's prior convictions: two charges of second-degree burglary in 2014 and 2017, respectively; misdemeanor theft in 2017; receiving stolen property in 2013; and unauthorized use of a weapon in 2011. Based on the complaint and probable cause statement, Judge McCarthy issued an arrest warrant for Nichols on December 31. Judge McCarthy found reasonable grounds to believe Nichols presented "a danger to the crime victim, the community, or another person," and set a monetary condition of release in the amount of "$30,000 cash only." The only information available to Judge McCarthy at the time he set this monetary condition of release was the felony complaint and accompanying probable cause statement, neither of which contained information about Nichols's ability to pay a bond.
The requirement for a $30,000 cash-only bond remained in effect for only two days. In accordance with Rule 22.07, which requires a defendant arrested and confined under the initial warrant to have a court appearance within 48 hours, Nichols appeared with counsel for his initial appearance on January 2, 2020. Nichols submitted evidence regarding his prior convictions, current parole status for second-degree burglary, prior failure to appear in court on a charge of second-degree robbery, financial resources, unemployment, mental health issues, education, length of residence in St. Louis, and local family ties. At that time, Judge Lynne Perkins determined "upon clear and convincing evidence, that no combination of non-monetary and monetary conditions will secure the safety of the community or other persons," and ordered Nichols held without bond. In addition to the charge of unlawful possession of a firearm, Nichols had a charge of second-degree robbery pending in the City of St. Louis, and an outstanding warrant for his arrest for failure to appear in court. Nichols also had a prior conviction for second-degree burglary in the City of St. Louis, and convictions for second-degree burglary, receiving stolen property, unauthorized use of a weapon, and misdemeanor theft in St. Louis County.
Because Nichols continued to be confined, he had a bond hearing seven days later on January 9, 2020 in accordance with Rule 33.05. Nichols was represented by counsel at this hearing before Judge Scott Millikan. Nichols presented information about his inability to pay a cash bond, and sought release on his own recognizance. The court, however, found "that no bond and conditions will secure the safety of the community." The court denied any change in the bond, "finding that the clear and convincing evidence is that the current conditions are the least restrictive to secure appearance and safety," particularly in light of the pending robbery charge. The court rejected Nichols's argument that the initial arrest warrant should be recalled because the monetary condition of release—$30,000 cash only—was set without any consideration of Nichols's ability to pay.
Following his January 9 bond hearing, Nichols unsuccessfully sought relief via remedial writ, which was summarily denied without opinion, and direct appeal, which was dismissed for lack of a final judgment. Nichols then filed a petition for declaratory judgment in the Circuit Court for the City of St. Louis against Judge McCarthy in his official capacity as a judge of the 22nd Judicial Circuit, Associate Division. Nichols challenged the monetary condition of release set in the initial arrest warrant, claiming the bond violated Missouri law as well as a preliminary injunction entered by the U.S. District Court for the Eastern District of Missouri in the case of Dixon v. City of St. Louis .1 Nichols requested the circuit court "enter its judgment declaring that Respondent is required to consider evidence of ability to pay when fixing monetary conditions of release in bonds and initial arrest warrants." Nichols claimed he had no adequate remedy at law because he had already been denied relief via both remedial writ and direct appeal in the appellate court and the Supreme Court.
The Missouri Attorney General's Office filed a motion to dismiss on behalf of Judge McCarthy, arguing the circuit court should dismiss Nichols's petition for failing to state a claim because an adequate remedy exists, namely a writ of mandamus. The motion pointed out that Nichols had, in fact, already sought that remedy, albeit unsuccessfully. The circuit court granted the motion to dismiss, reasoning that Nichols had an adequate remedy at law in the form of a remedial writ in a higher court. Nichols appealed to this Court, and we reversed and remanded, holding that when, as here, relief by remedial writ is denied without opinion, the denial does not constitute a decision on the merits and has no preclusive effect. Nichols v. McCarthy , 609 S.W.3d 483, 486-87 (Mo. App. E.D. 2020) (" Nichols I "). Because Nichols was unable to obtain a decision on the merits of his claim, he had no adequate remedy at law. Id. at 487. As a result, Nichols was entitled to a declaration of rights under the Declaratory Judgment Act. Id.
On remand, the parties stipulated to the following facts and proceeded to a bench trial:
Nichols submitted ten exhibits as evidence, and argued a court could not impose a cash bond in the absence of any information regarding the defendant's ability to pay. He further argued the rules imposed an obligation, that should be undertaken by the police or prosecutor prior to issuance of the initial arrest warrant, to gather information regarding the defendant's employment and the ability of the defendant and his or her family to pay a cash bond.
The trial court entered judgment in favor of Judge McCarthy. The trial court concluded that neither the current nor former versions of the Missouri Rules of Criminal Procedure prohibit the court from imposing a cash bond when no financial information regarding the defendant is available. The trial court continued that if the Supreme Court intended to preclude circuit courts from imposing cash bonds when no financial information is available, the Supreme Court could have stated as such, but did not. The trial court ruled:
Rule 22.04 also requires only "available information" which on its face does not require any gathering of information. In light of the realities of the logistics inherent to getting a warrant signed within required time parameters, it is entirely reasonable that the Supreme Court would not require such information gathering in light of the hearing that is provided to defendants within 48 hours under Rule 33.01, and seven days thereafter if the defendant is still detained under Rule 33.05. This [c]ourt will not infer such an obligation in the current Rule 22.04 when the Supreme Court has not directed it.
(internal citations omitted). Nichols appeals.
On appeal, Nichols claims the trial court erred in granting judgment in favor of Judge McCarthy because Nichols pled and proved at trial a viable claim for declaration of rights as a matter of law, and the judgment incorrectly declares and applies the law. Specifically, Nichols contends Rule 33.01(c) requires the circuit court to consider ability to pay when fixing monetary conditions of release in the ...
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