State v. Nicolosi

• Decision Date: 04 September 1979
• Docket Number: No. 39824,39824
• Citation: 588 S.W.2d 152
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Sebastian C. NICOLOSI, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 152

588 S.W.2d 152

STATE of Missouri, Plaintiff-Respondent, v.Sebastian C. NICOLOSI, Defendant-Appellant.

No. 39824.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 4, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 15, 1979.

Application to Transfer Denied Nov. 14, 1979.

Lee, O'Hanlon & Brady, Walter L. Brady, Jr., St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, John R. Perkins, Brenda Engel, Asst. Attys.Gen., Jefferson City, George A. Peach, Circuit Atty., Edward J. Rogers, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

KELLY, District Judge.

Sebastian C. Nicolosi was convicted in the Circuit Court of the City of St. Louis of two Counts of illegal possession of a Schedule II controlled substance, Hydromorphone and Marijuana, in excess of 35 grams, and one Count of illegal possession of a Schedule IV controlled substance, Diazepamethelyclorynole, and one Count of illegal sale of a Schedule II controlled substance, Hydromorphone.He was also found to have been previously convicted of a felony and, pursuant to § 556.280 RSMo.1969, the trial court imposed punishment, sentencing the defendant to a term of ten years in the custody of the Missouri Department of Corrections on Count I of the Information, to a term of five years in the custody of the Missouri Department of Corrections on Counts II and III of the Information, said sentences to run concurrently with that imposed in Count I; and to a term of two years in the custody of the Missouri Department of Corrections on Count IV of the Information, said sentence to run consecutively with the sentences imposed in Counts I, II and III.Mr. Nicolosi took this appeal from the judgment aforesaid.We affirm.

On appeal three Points Relied On are presented.Appellant's first Point Relied On is that the trial court erred when it did not honor the dismissal mandated by a nolle prosequi entered in the case by the Assistant Circuit Attorney; his second Point Relied On is that he was denied due process of law by reason of ineffective assistance of counsel; and his Third Point Relied On is that the trial court erred in failing to submit an instruction on circumstantial evidence.

The evidence shows that on March 17, 1977, seven members of the St. Louis Tactical Anti-Crime Team of the St. Louis Metropolitan Police Department went to the two-story, four-family residence where appellant resided.These police officers were armed with a search warrant for a search of appellant's apartment.Shortly prior to going into the building the officers observed one Patrick Fleming enter the building and go to the second floor apartment occupied by the appellant.Officer Dower and several of the other police officers went to the landing midway between the first and second floors of the apartment building, and from this point of vantage Officer Dower overheard a conversation between Mr. Fleming and a second man whose voice was later identified to be that of the appellant.While this conversation was taking place Mr. Fleming was standing in the hallway in front of the partially open door to appellant's apartment; appellant was standing inside the apartment.The conversation Officer Dower overheard was as follows:

Fleming: Benny, give me one.

Appellant: I thought you wanted three.

Fleming: I couldn't get the money.

Appellant: Just a second.

Fleming said nothing else at this point and the appellant then said: "Give me the money."Fleming passed some folded money to the appellant.The appellant was not seen to hand anything through the doorway to Mr. Fleming, but when Mr. Fleming started down the stairway he was taken into custody by the police officers.When he was placed under arrest, Mr. Fleming dropped a yellow pill to the ground from his right hand.When analyzed, it was determined that this yellow pill was hydromorphone, a Schedule II controlled substance.

Following the arrest of Mr. Fleming, Officer Dower and the other police officers entered appellant's apartment and executed the search warrant in their possession.The officers found and seized a number of illegal controlled substances and drug paraphernalia in the apartment of the appellant.A vial containing twelve yellow pills, subsequently identified as hydromorphone, was found in appellant's pants pocket.

At trial appellant admitted possession of the vial containing the twelve pills and explained that they belonged to his mother who was in the hospital and that he was going to bring them to her.He denied any knowledge of the remaining contraband and stated that the other drugs and drug paraphernalia found in his apartment were brought in from the outside by Officer Dower.

The facts relevant to the disposition of appellant's First Point took place prior to voir dire examination of the jury on the opening day of trial when the assistant circuit attorney handling the prosecution of the case informed the trial court that Officer Dower, who had been endorsed on the Information as a witness for the prosecution, and one of the state's key witnesses, might be unavailable to testify due to an emergency within his family and if it was not possible to contact Officer Dower during the course of the morning he, the Assistant Circuit Attorney, would request a continuance.The selection of the jury proceeded and after the jury was selected, but prior to its being sworn, the Assistant Circuit Attorney informed the trial court that he had been unable to contact Officer Dower, that he assumed the officer would be available the following morning, and requested that the jury not be sworn until that time.This request was denied, whereupon the Assistant Circuit Attorney announced that "the State will formally enter a memorandum of nolle pros at this time.For the record the State is entering a memorandum of nolle prosequi."The trial court retorted: "Sit right down there, Mr. Rogers, and don't give me any more trouble."The clerk proceeded to swear the jury, and the cause was passed to the following morning for further proceedings.

The following morning the Assistant Circuit Attorney announced that Officer Dower was now present and available to give testimony and asked permission to rescind the motion of nolle prosequi orally made the previous evening.The trial court replied: "The motion wasn't accepted, Mr. Rogers, and you will be permitted to rescind it or it will be stricken from the record."The state then announced that it was ready to proceed and the trial progressed.

The appellant made no objection at trial to proceeding, but in his Motion for New Trial, he raised this Point as follows:

The Court erred when it did not honor the dismissal mandated by the Nolle Prosequi formally entered into the record by the Assistant Circuit Attorney, and it was a prejudicial error for the Court to go forward and permit the Assistant Circuit Attorney to adduce testimony for the reason that effectual termination of the prosecution was had when the Assistant Circuit Attorney informed the Court that the case was Nolle Prosequi.

The issue under this Point as stated by appellant in his brief is "whether an Assistant Circuit Attorney, without the consent of the trial Court, has the authority to enter a nolle prosequi; or whether the Court has such judicial power as to ignore and reject such a nolle prosequi formally entered into the record, and order the jury to be sworn and the trial to proceed."

The state, in its brief, states that it does not dispute the fact that the Assistant Circuit Attorney entered a motion for nolle prosequi which was not accepted by the trial judge and concedes that once the prosecutor has entered his motion of nolle prosequi the trial court no longer had jurisdiction to proceed in the case.The gut issue, the state contends, is whether, once the prosecutor has entered a nolle prosequi in a criminal case, he may request reinstatement of an information which he has nolle prossed and proceed to trial without the filing of a new information or indictment.

It is clearly the weight of authority in this state that the prosecutor has the sole discretion to enter a nolle prosequi in a criminal prosecution and the trial court in which the prosecution is pending may not interfere with the exercise of that discretion by refusing to permit the filing of said motion.State v. Hoopes, 534 S.W.2d 26, 34(4)(Mo. banc 1976);State v. Moody, 325 S.W.2d 21, 32(3)(Mo. banc 1959);State ex rel Dowd v. Nangle, 365 Mo. 134, 276 S.W.2d 135, 138(3)(banc 1955);State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590, 593(6)(banc 1953);State v. Brooks, 551 S.W.2d 634, 647(13)(Mo.App.1977);State ex rel. Lodwick v. Cottey, 497 S.W.2d 873, 880(7)(Mo.App.1973).

In State ex rel. Griffin v. Smith, the court held that once the prosecutor enters a nolle prosequi in a criminal case the trial judge has no jurisdiction to proceed with the casehe has "lost jurisdiction of the criminal cause."258 S.W.2d 590, 595.

Despite this language in Griffin, there is authority that this loss of jurisdiction occasioned by the act of the prosecutor in entering a nolle pros does not deprive the trial court of its inherent power to set...