State v. Clinch

• Citation: 335 S.W.3d 579
• Decision Date: 22 March 2011
• Docket Number: No. WD 71869.,WD 71869.
• Parties: STATE of Missouri, Respondent,v.William CLINCH, Appellant.
• Court: Court of Appeal of Missouri (US)

335 S.W.3d 579

STATE of Missouri, Respondent,

v.William CLINCH, Appellant.

No. WD 71869.

Missouri Court of Appeals, Western District.

March 22, 2011.

Craig A. Johnston, Columbia, MO, for Appellant.Shaun J. Mackelprang, Jefferson City, MO, for Respondent.

Before CYNTHIA L. MARTIN, P.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.

JAMES EDWARD WELSH, Judge.

William Clinch appeals the circuit court's judgment convicting him of first-degree murder. In his points on appeal, he claims that the court erred in overruling his motion to dismiss the case with prejudice based upon the State's bad faith in entering a nolle prosequi and refiling the same charges solely for the purpose of obtaining a different judge. Clinch also contends that the court erred in overruling his objection to the use of the word “imminent” in the defense of others instruction. Lastly, Clinch claims that the court erred in refusing to allow his brother to testify after his brother violated the rule excluding witnesses from the courtroom. We affirm.

The sufficiency of the evidence to support Clinch's conviction is not at issue. The victim, J.B., was married to Clinch's sister, Amanda, for five years when they divorced in August 2007. They had two daughters and one son together. Pursuant to J.B.'s and Amanda Clinch's court-approved settlement agreement, J.B. was to have supervised visitation with the children until he completed anger management and parenting classes, at which time his visitation would be unsupervised. Clinch thought that the justice system had “failed” his nieces and nephew with this arrangement because he believed that J.B. should be allowed only supervised visitation until the children turned eighteen. Clinch thought that he should be the “primary supervisor” of the visitation.¹

When Clinch learned on August 30, 2007, that J.B. had completed the anger management classes and, therefore, was one step closer to having unsupervised visitation with the children, he formulated a plan to kill J.B. On August 31 and September 1, 2007, Clinch took shooting lessons from his father and bought ammunition for his gun and targets to practice shooting.

On September 2, 2007, J.B. was to have a supervised visit with the children at a McDonald's restaurant in Columbia at 5:30 p.m. Clinch drove to the McDonald's about an hour before the scheduled visit, parked his car in the parking lot of a KFC restaurant that was near the McDonald's, and waited for J.B. to arrive. As he waited, Clinch became concerned that J.B. would be able to see him in his car, so he drove to Wal–Mart to buy sun shades to cover the car windows. Clinch then drove back to the KFC parking lot and watched for J.B.

The children were not there when J.B. arrived.² J.B. got out of his car and opened his trunk. As J.B. was reaching into his trunk, Clinch walked up to him and fired two shots at him, hitting him once in the buttocks. J.B. ran away from Clinch and cried for help. Clinch pursued him through the parking lot, firing his gun at him. The gun jammed. After clearing the jam, Clinch chased J.B. around a parked pickup truck until J.B. hid behind one of the truck's tires. When J.B. stood up, Clinch shot him in the head. Clinch then walked around the truck to where J.B. lay and shot him two more times in the back of the head.

After shooting J.B., Clinch set the gun down and made a call on his cell phone. A Boone County Sheriff's deputy arrived shortly thereafter and arrested Clinch. Inside Clinch's wallet, law enforcement officers found receipts for ammunition and the sun shades. The officers also found a note that Clinch had written saying that no one would “ever understand why [he] did this,” that J.B. was “a monster and must be destroyed,” and that “[t]his final act” was his “gift” to his nieces and nephew.

Clinch was indicted for first-degree murder.³ During the jury trial, Clinch claimed that he acted in lawful defense of others to prevent J.B. from abusing the children. Alternatively, Clinch claimed that he did not deliberate before killing J.B. because he was living in fear of J.B. and his anxiety affected his ability to coolly reflect upon what he was doing.

The jury found Clinch guilty of first-degree murder. The court sentenced him to life in prison without the possibility of parole. Clinch appeals.

In his first point, Clinch claims that the circuit court erred in overruling his motion to dismiss the case with prejudice based upon the State's bad faith in entering a nolle prosequi following the court's ruling that the defense of others instruction would not include the word “imminent.” The issue concerning the wording of the defense of others instruction arose before trial when the State filed a motion in limine to exclude evidence of J.B.'s prior bad acts. The State said that it anticipated that Clinch would try to introduce evidence that J.B. allegedly had a violent character and had allegedly caused harm to his children to support a defense of others claim. The State argued that such evidence was irrelevant because there was no evidence that Clinch acted to defend others from J.B.'s “imminent” commission of a forcible felony as required by the statute governing a defense of others claim, section 563.031, RSMo Cum.Supp.2007. During a hearing on the motion, Clinch agreed with the State that he was required to prove imminence and said that he would adduce evidence that he believed that imminence of harm to the children did, in fact, exist. Nevertheless, the court sustained the State's motion in limine to exclude the evidence.

The day before trial, the court reconsidered this ruling and stated that it believed that the legislature's 2007 amendment of section 563.031 removed the requirement that the anticipated commission of a forcible felony be imminent. The prosecutor asked for time to review the law, and the court put off any ruling on the issue until the next day.

On the morning of trial, the State argued that the 2007 amendment of section 536.031 did not remove the requirement that the threat of the commission of a forcible felony be imminent to support a defense of others claim. The prosecutor asked the court for a ruling on whether or not the word “imminent” would be included in the defense of others instruction. The court said that it thought that the word “imminent” would not be in the instruction. The State then entered a nolle prosequi dismissing the charges against Clinch.

The State subsequently refiled the charges, and the case proceeded to trial. During the instructions conference, Clinch filed a motion to dismiss the case with prejudice, arguing that the prosecutor acted in bad faith in entering the nolle prosequi to avoid the prior judge's ruling excluding the word “imminent” from the defense of others instruction. The court denied the motion. Clinch contends that, by not granting his motion to dismiss, the court permitted the State to “forum shop” for a favorable ruling, which is fundamentally unfair because he had no corresponding right to do so.

We review the circuit court's ruling on a motion to dismiss for an abuse of discretion. State v. Keightley, 147 S.W.3d 179, 184 (Mo.App.2004). An abuse of discretion occurs “when a ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.

“A nolle prosequi is a prosecutor's formal entry on the record indicating that he or she will no longer prosecute a pending criminal charge.” State v. Flock, 969 S.W.2d 389, 389 (Mo.App.1998). The entry of a nolle prosequi “results in a dismissal without prejudice unless jeopardy attaches to bar subsequent prosecution.” Id. “The general rule is that a nolle prosequi or a dismissal of a criminal charge, if made prior to the time a jury is impaneled and sworn, is not a bar to a subsequent prosecution for the same offense.” State v. Lonon, 331 Mo. 591, 56 S.W.2d 378, 380 (1932), overruled on other grounds by State ex rel. Norwood v. Drumm, 691 S.W.2d 238 (Mo. banc 1985), as stated in Doyle v. Crane, 200 S.W.3d 581, 588 (Mo.App.2006).

In State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590, 593 (Mo. banc 1953), the Missouri Supreme Court said that the right to enter a nolle prosequi “lies within the sole discretion of the prosecuting attorney.” The Court explained that, because prosecutors are “charged with the responsibility and vested by law with the discretion” to investigate the facts and the law to determine when to initiate a prosecution, this discretion also gives prosecutors “the sole power to determine” when to proceed with a prosecution or to dismiss it. Id. at 594.⁴

The Court expressly reaffirmed this principle in the more recent case of State v. Honeycutt, 96 S.W.3d 85, 89 (Mo. banc 2003). In Honeycutt, the Court stated “that a prosecutor has broad discretion to determine when, if, and how criminal laws are to be enforced, and that this decision is seldom subject to judicial review.” Id. (internal citations omitted). The Court in Honeycutt also reiterated that, once a prosecutor dismisses a case without prejudice, a court “has no authority to convert the dismissal to one with prejudice or to force the prosecutor to trial.” Id.

Recognizing the State's broad discretion to dismiss a case and refile the charges so long as jeopardy has not attached, this district and the Southern District of this court have found no error in the State's filing a nolle prosequi, in lieu of an appeal, following an unfavorable ruling on a motion to suppress and then refiling the charges. See, e.g., Keightley, 147 S.W.3d at 183–85; State v. Maggard, 906 S.W.2d 845, 848 (Mo.App.1995); State v. Pippenger, 741 S.W.2d 710, 712 (Mo.App.1987).

The circumstances in this case do not warrant a different result. In exercising the broad discretion that our common law affords it, the State entered its nolle prosequi following the court's...