State ex rel. Becker v. Wood

• Decision Date: 03 November 2020
• Docket Number: No. SC 98416,SC 98416
• Citation: 611 S.W.3d 510
• Parties: STATE EX REL. Matthew BECKER, Franklin County Prosecuting Attorney, Relator, v. The Honorable Gael D. WOOD, Respondent.
• Court: Missouri Supreme Court

611 S.W.3d 510

STATE EX REL. Matthew BECKER, Franklin County ProsecutingAttorney, Relator,

v.The Honorable Gael D. WOOD, Respondent.

No. SC 98416

Supreme Court of Missouri, en banc.

Opinion issued November 3, 2020

Rehearing Denied December 22, 2020

The prosecutor was represented by Matthew W. Houston of the Franklin Countyprosecutor's office in Union, (636) 583-6370, and Christine H. Krug of the attorney general's office in St. Louis, (573) 751-3321.

The defendant was represented by Srikant Chigurupati of the public defender's office in St. Louis, (314) 340-7662, and Courtney M. Harness, an attorney in Union.

Zel M. Fischer, Judge

Franklin County Prosecuting Attorney, Matthew Becker, petitioned for a writ to prohibit the circuit court from enforcing an order requiring him and an associate prosecuting attorney, Matthew Houston, to appear and provide sworn testimony under oath at a pretrial motion hearing.

Because the defendant, Aaron Hodges, failed to allege sufficient facts to support a presumption of prosecutorial vindictiveness and the circuit court's order will cause irreparable harm by requiring Becker and Houston to divulge privileged work product, this Court makes its preliminary writ of prohibition permanent.

Factual Background and Procedural Background

A grand jury indicted Hodges on two counts of first-degree murder and two counts of armed criminal action.At the time of the indictment, Robert Parks was the elected prosecutor for Franklin County.Hodges filed a jury trial waiver on January 11, 2016, and the case was set for guilty plea on February 23, 2016.Hodges' case has been continued several times, and on October 24, 2016, he withdrew his jury trial waiver.During this time, Hodges and the State engaged in plea negotiations.

Almost two years later, on June 15, 2018, Hodges filed notice he intended to proceed to trial, relying on a defense of not guilty by reason of mental disease or defect.Shortly thereafter, on June 21, 2018, the State withdrew all outstanding plea offers.Prosecuting Attorney Parks then retired and Franklin County elected Becker Prosecuting Attorney.Becker assumed office in January 2019.The circuit court set the case for jury trial for September 9, 2019.The State filed a notice of intent to seek the death penalty on July 24, 2019, seven weeks before the trial date.Hodges then filed a motion to strikethe State's intent to seek the death penalty, alleging, inter alia , prosecutorial vindictiveness.

Hodges filed a motion to endorse prosecuting attorneys Becker and Houston as witnesses at the hearing regarding the motion to strike.The circuit court entered an order requiring Becker and Houston to appear and provide sworn testimony regarding Hodges' motion to strike.Becker petitioned for a writ of prohibition, which the court of appeals denied.Becker then sought a writ of prohibition from this Court to prevent the circuit court from ordering him and Houston to provide sworn testimony.This Court issued a preliminary writ of prohibition.

Jurisdiction and Standard of Review

This Court has the authority to issue and determine original remedial writs.Mo. Const. art. V, § 4.1.

A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.

State ex rel. Anheuser-Busch, LLC v. Moriarty , 589 S.W.3d 567, 570(Mo. banc 2019).Further, a writ of prohibition is appropriate to prevent the disclosure of privileged work product.State ex rel. Rogers v. Cohen , 262 S.W.3d 648, 650(Mo. banc 2008).¹

Analysis

The limited issue in this case is whether defense counsel can require the elected prosecuting attorney to testify at a hearing regarding his rationale for pursuing a particular sentence.²Becker claims the circuit court's order requiring him and Houston to testify will cause irreparable harm because it necessarily requires them to divulge privileged work product.Further, he argues the State need not respond to an allegation of prosecutorial vindictiveness until a presumption of vindictiveness has been established and Hodges' allegations, as pleaded, do not create such a presumption.

Sentencing Rationale Constitutes Work Product

"An attorney's opinions, theories and conclusions are work product and are therefore privileged."State v. Antwine , 743 S.W.2d 51, 67(Mo. banc 1987).The work product doctrine protects both tangible and intangible work product.Cohen , 262 S.W.3d at 654.Intangible work product includes an attorney's mental impressions, conclusions, opinions, and legal theories.Id.

A prosecuting attorney's rationale for seeking a particular punishment based upon the facts of a specific case are necessarily mental impressions and conclusions and are, therefore, intangible work product.³As intangible work product, Becker's rationale for seeking the death penalty after consideration of Hodges' specific case is privileged.Thus, the State would suffer irreparable harm if Becker and Houston are compelled to testify regarding this information.

Still, if the record of the case supports a presumption of prosecutorial vindictiveness or a criminal defendant presents persuasive objective evidence that the prosecuting attorney acted with the sole intention of punishing the defendant for exercising a constitutional right, the burden to disprove the charge shifts to the State.Because the allegations in the motion to strike, even if true, do not create a presumption of prosecutorial vindictiveness and Hodges has not, at this point, presented the requisite objective evidence of prosecutorial vindictiveness, the issuance of this writ is necessary to prevent the circuit court from compelling Becker and Houston to testify at the hearing regarding the motion to strike.⁴

No Presumption of Prosecutorial Vindictiveness

In his motion to strikethe State's intent to seek the death penalty, Hodges alleges the State acted vindictively to punish him for proceeding to jury trial on a defense of not guilty by reason of mental disease or defect by (1) filing its intent to seek the death penalty; and (2) rescinding all existing plea offers.Hodges contends these two factual circumstances, as pleaded, establish a presumption of vindictiveness.But, the facts and circumstances of this case as alleged do not create a presumption of prosecutorial vindictiveness, and the State cannot be compelled to testify regarding its reasons for seeking the death penalty.

A prosecuting attorney possesses broad, almost unfettered discretion in deciding what charge and what punishment to seek.State ex rel. Gardner v. Boyer , 561 S.W.3d 389, 398(Mo. banc 2018).The due process clause of the Fourteenth Amendment, however, prevents a prosecuting attorney from acting vindictively to punish a criminal defendant for exercising a right.Blackledge v. Perry , 417 U.S. 21, 28, 94 S.Ct. 2098, 40 L.Ed.2d 628(1974).A presumption of vindictiveness is established when "the facts show a realistic likelihood of vindictiveness in the prosecutor's augmentation of charges."State v. Gardner , 8 S.W.3d 66, 70(Mo. banc 1999)."Two factors are weighed: (1)the prosecutor's stake in deterring the exercise of some right, and (2)the prosecutor's conduct."Id.Only after vindictiveness has been established, either through the presumption or by objective evidence, is the State burdened with the task of defending the charge through objective, on-the-record explanations of the State's rationale.Id.

No Realistic Likelihood of Vindictiveness Exists

Hodges contends the State vindictively rescinded its plea offers and augmented the charge against him by seeking the death penalty after he decided to proceed to jury trial on the theory of not guilty by reason of mental disease or defect.

Contrary to Hodges' argument, this Court has repeatedly concluded first-degree murder and capital murder are not different charges.See, e.g.,State v. Smith , 781 S.W.2d 761, 769(Mo. banc 1989)(" ‘[C]apital murder’ is not a distinct crime under the Missouri statutory scheme.");State v. Holland , 653 S.W.2d 670, 672(Mo. banc 1983);State v. Baker , 636 S.W.2d 902, 903(Mo. banc 1982).Therefore, when the State charges a defendant with first-degree murder, the State does not augment the charge or add a new charge when it makes the decision to seek the death penalty.See§ 565.005;§ 565.020;§ 565.030.⁵Because the State did not augment or change the initial charge of first-degree murder, Hodges' allegations do not create a presumption of prosecutorial vindictiveness.

This Court must weigh two factors to determine whether a realistic likelihood of prosecutorial vindictiveness exists: (1)the prosecutor's stake in deterring the exercise of the right being asserted, and (2)the prosecutor's actual conduct.Id.Once established, the presumption of vindictiveness may be "overcome by objective information justifying the increased sentence or charge."State ex rel. Patterson v. Randall , 637 S.W.2d 16, 18(Mo. banc 1982)(citingUnited States v. Goodwin , 457 U.S. 368, 376 n.8, 102 S.Ct. 2485, 73 L.Ed.2d 74(1982) ).

A prosecutor will likely always have some stake in deterring a defendant from asserting his or her right to trial by jury—e.g., lowering the risk of acquittal.⁶The real issue for Hodges in this case lies in the State's actual conduct, which fails to establish a reasonable likelihood of vindictiveness.Typically, the State's conduct supports a presumption of vindictiveness when there has been a successful appeal or grant of retrial, and the State responds by seeking an enhanced or new charge.See, e.g. , State v. Cayson , 747 S.W.2d 155, 157(Mo. App. W.D.1987)(finding a presumption of vindictiveness existed when defendant was granted a new trial and the State dismissed the...