State ex rel. Norwood v. Drumm, 66123

• Decision Date: 30 April 1985
• Docket Number: No. 66123,66123
• Citation: State ex rel. Norwood v. Drumm, 691 S.W.2d 238 (Mo. 1985)
• Parties: STATE of Missouri ex rel. Albert Earl NORWOOD, Relator, v. The Honorable Bernhardt C. DRUMM, Jr., Judge, Division Four of the Twenty-First Judicial Circuit, Respondent.
• Court: Missouri Supreme Court

Page 238

691 S.W.2d 238

STATE of Missouri ex rel. Albert Earl NORWOOD, Relator, v. The Honorable Bernhardt C. DRUMM, Jr., Judge, Division Four of the Twenty-First Judicial Circuit, Respondent.

No. 66123.

Supreme Court of Missouri En Banc.

April 30, 1985.

Rehearing Denied June 25, 1985.

Mary Dames, Asst. Public Defender, Clayton, for relator.

John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Relator Albert E. Norwood was the defendant in a criminal cause tried before respondent Judge Drumm, Jr. The jury found defendant guilty of second degree murder, a felony murder based on the underlying felony of possession of a controlled substance. After verdict at a hearing on defendant's motion for new trial, the assistant prosecuting attorney requested leave to file a memo of nolle prosequi as to the murder charge. Respondent refused to accept the memo and indicated his intent to deny defendant's after trial motions and proceed to sentencing. Relator then sought and obtained a writ of prohibition from the Eastern District that prevented respondent from denying the prosecuting attorney opportunity to nolle prosequi the charge. The Eastern District subsequently made permanent its provisional writ of prohibition and this Court granted transfer. The question presented, one of first impression in Missouri, is whether the prosecuting attorney has the exclusive and unrestricted discretion to enter a nolle prosequi after verdict and before sentencing and judgment. The Court concludes that he does not and quashes the writ of prohibition issued by the Eastern District.

Respondent defines the common law power of the prosecutor to enter a nolle prosequi as follows: 1) prior to impaneling and swearing the jury, a prosecutor has an absolute right to file a nolle prosequi; 2) during the trial a prosecutor does not have the right without the consent of the defendant; 3) after verdict a prosecutor has the right to enter a nolle prosequi only when the dismissed charge is a higher offense and a lesser included offense remains intact, and; 4) after sentencing and judgment a prosecutor loses all jurisdiction to nolle prosequi a charge. Relator takes issue with 3), contending that after the jury returns its verdict, the unrestricted power of a prosecutor revives and continues until the court enters judgment and imposes sentence.

After trial of the cause before respondent judge, the jury returned a verdict of guilty on Counts I and II, murder in the second degree and receiving stolen property. The defendant moved for judgment of acquittal or, in the alternative, for a new trial. The prosecutor "confessed" defendant's Motion for New Trial, stating "it now appears that there is evidence that defendant did not 'knowingly possess' a controlled substance, the underlying felony" to the murder charge. Judge Drumm indicated he would deny the motion for new trial. The prosecutor then requested leave of court to enter an order of nolle prosequi as to Count I. The memo did not state the reasons prompting the requested entry. The prosecutor earlier stated, in confessing defendant's motion for a new trial, that after defendant's trial and conviction, he passed a polygraph examination and that the prosecutor verified some of the statements given. Respondent denied the request. When the prosecutor nevertheless entered an order of nolle prosequi, respondent refused to accept the order, and indicated his intent to proceed to sentence defendant to a term of fifteen years imprisonment, as recommended by the jury.

Section 56.060, RSMo 1978, charges the prosecuting attorney with the duty to "commence and prosecute all civil and criminal actions...." A prosecuting attorney enjoys great discretion in the conduct of a criminal charge. State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590 (banc 1953); State v. Lawson, 630 S.W.2d 185 (Mo.App.1982); State ex rel. Lodwick v. Cottey, 497 S.W.2d 873 (Mo.App.1973). But no Missouri statute or decision addresses the extent of his authority to enter an order of nolle prosequi in these circumstances. A nolle prosequi, an entry of record whereby the prosecutor indicates that he will proceed no further, terminates the proceedings and releases the defendant. State v. Berry, 298 S.W.2d 429 (Mo.1957); Lawson, 630 S.W.2d at 189. At common law, and continuing in most jurisdictions in the absence of statute, the power to enter a nolle prosequi is vested in the prosecuting attorney. Berry, 298 S.W.2d at 431; State ex rel. Dowd v. Nangle, 365 Mo. 134, 276 S.W.2d 135, 137 (1955); Griffin, 363 Mo. at 1239-1240, 258 S.W.2d at 593.

Courts and commentators recognize that different considerations attend exercise of the power to nolle prosequi at various stages of the prosecution. United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill.1945); State v. Veterans of Foreign Wars, 223 Iowa 1146, 274 N.W. 916 (1937); Valent v. State, 33 Del. 399, 138 A. 640 (1926), rev'd on other grounds, 33 Del. 407, 138 A. 643 (1927). Relying on Brokaw, 60 F.Supp. at 102, relator and the court of appeals contend that at common law a prosecutor not only had complete discretion to nolle prosequi a charge before a jury was impaneled and sworn, but also had the power to nolle prosequi through trial and verdict until sentencing. Closer examination of Brokaw and the cases cited therein reveals that courts did not uniformly accept this broad statement of the prosecutor's power and the cases fail to establish that Missouri courts "accepted the broad sweep of this common law rule." Slip op. at 4.

Relator is correct that the statement in Brokaw that "following the return of the verdict the uncontrolled power of the prosecutor to enter a nolle revives and continues until such time as judgment is entered and sentence imposed," 60 F.Supp. at 102, is repeated in numerous cases. Yet the broadest language in the cases cited refers to exercise of the power before trial and in fact very few of the cases from other jurisdictions, and none of the Missouri decisions, involve entry of a nolle prosequi after verdict. Brokaw, 60 F.Supp. at 101 (before jury impaneled); People v. Minner, 246 Ill.App. 376 (1927) (before case submitted to jury); Veterans of Foreign Wars, 223 Iowa 1146, 274 N.W. at 917 (before jury impaneled); Griffin, 363 Mo. 1235, 258 S.W.2d at 592 (same); Berry, 298 S.W.2d at 430 (after venire sworn but before trial jury sworn); State v. Nicolosi, 588 S.W.2d 152 (Mo.App.1979) (after jury selected but before being sworn); State v. Harlston, 565 S.W.2d 773 (Mo.App.1978) (before venire sworn). In the cases permitting entry of a nolle prosequi after verdict, the prosecutor dismissed a higher offense and left a lesser included offense and sentence undisturbed. Valent, 138 A. at 640-642; Commonwealth v. Dascalakis, 246 Mass. 12, 140 N.E. 470 (1923). The Court declines to accept respondent's invitation to adopt a rule based on the facts of these latter cases, because the absence of controlling precedent in this state, decisions from foreign jurisdictions limiting the prosecutor's authority, and other compelling considerations justify conditioning exercise of the authority of the prosecuting attorney to nolle prosequi after verdict.

Some states held early that the entry of a nolle prosequi is subject to approval of the proper court. State ex rel. Skinner v. Dostert, 278 S.E.2d 624 (W.Va.1981). In particular it has been held that after a verdict and refusal to grant a motion for new trial, the prosecutor may not dismiss the prosecution without the authority of the court. State ex rel. Bier v. Klock, 48 La.Ann. 140, 18 So. 942 (1895). See generally, 22 A C.J.S. §§ 456-465 (1961). In People ex rel. Hoyne v. Newcomer, 284 Ill. 315, 120 N.E. 244 (1918), the court noted the lack of consensus among the courts as to the bounds of the power of the prosecuting attorney to enter a nolle prosequi without the consent of the court. The court viewed the remedy of a subsequent prosecution against the state's attorney for failure to prosecute inadequate and concluded that the "due administration of justice and the protection of the people by the enforcement of criminal laws" requires that the prosecutor obtain the consent and approval of the court before entering a nolle prosequi. Id. 120 N.E.2d at 247-248. Accord, State v. Kearns, 70 Ohio L.Abs. 65, 129 N.E.2d 543, 545 (C.P.1955). This is the practice under more modern decisions, People v. Mooar, 92 Ill.App.3d 852, 48 Ill.Dec. 186, 416 N.E.2d 81 (1981), and in many jurisdictions by statute or court rule. See, e.g., People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975). Federal practice is even more restrictive. Under Federal Rule of Criminal Procedure 48(a), the prosecutor must obtain leave of court to terminate prosecution by dismissal of an indictment. These authorities persuade that the better approach is to recognize the role of the trial court in the dismissal of a cause after verdict.

A rule limiting the uncontrolled discretion of the prosecuting attorney at this stage of the proceeding also comports with considerations pertaining to the administration of justice. The position of relator that the prosecutor need not obtain leave of court or even state the reasons underlying entry of a nolle prosequi ignores the role of the jury and the court in the judicial process. The prosecutor retains sole discretion to determine whether to initiate prosecution, Griffin, 258 S.W.2d at 593-594; State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665 (1911), and "the first and presumptively the best judge of whether a pending prosecution should be terminated." United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975), cert. denied, Woodruff v. United States, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976). But additional factors warrant consideration once the prosecutor invokes the jurisdiction of the court and submits the case to a jury. Here, the verdict rendered...