Opinion
No. 91-B-517.
Decided October 8, 1991.
Joan Stafford, City Prosecuting Attorney, and Richard Lillie, Assistant City Prosecuting Attorney, for plaintiff.
Jeffrey Shively, for defendant.
This case is before the court on the prosecutor's motion to dismiss. No evidence was presented in support of the motion. As such, only the procedural facts of this case are available to the court.
A criminal complaint for domestic violence was issued against the defendant, Robert G. Pfeifer, on May 23, 1991. The complaint was signed by Richard Lillie, assistant city prosecutor. On the day the complaint was filed, a motion for temporary protection order was also filed. The motion was prepared by the prosecutor's office, and signed by the complainant.
The defendant was arrested on this charge on June 7, 1991. Also on this date a temporary protection order was issued. The order was based upon a written agreement to the order between the defendant and prosecutor, Joan Stafford. The effect of the order was to prohibit any contact, direct or indirect, between the defendant and the complaining witness.
The defendant appeared in court on June 8, 1991 and entered a plea of not guilty. The case was set for pretrial conference on July 23, 1991.
The pretrial conference was held as scheduled on July 23, 1991. Discovery was exchanged between the prosecutor and defense counsel at that time. The prosecutor was not willing to dismiss the case, nor was the defendant willing to change his plea of not guilty. Consequently, the case was scheduled for jury trial for Wednesday, August 21, 1991.
On Tuesday, August 20, 1991, in the early afternoon, Stafford informed the court that she was feeling ill and would not be available for the jury trial in this case. When asked by the court if the trial should be continued, Stafford informed the court that the case had been prepared for trial and that either Lillie or some other attorney in the city law department would try the case. There was no discussion of the facts of the case.
Later that day, the city law director filed a motion to continue the jury trial in this case. Notwithstanding Stafford's prior representation of preparation of the case, the motion stated that "no other attorney in the Law Department is available to adequately prepare and try this matter."
Due to the absence of any available prosecutor, the court granted the last-minute request for continuance. The court requested the prosecutor and defense counsel to meet on the scheduled trial date on August 21, 1991 in an attempt to further discuss this case. The attorneys chose not to do so, but, instead, requested that the case be rescheduled for trial.
The court rescheduled the case for jury trial on September 18, 1991. Prior to that date, however, on September 3, 1991, the prosecutor requested another continuance. According to the prosecutor's motion, one of the witnesses, a Lakewood police officer, was unavailable. At the prosecutor's request, the case was again rescheduled for trial on Wednesday, September 25, 1991.
On Tuesday, September 24, 1991, a pretrial conference was held with defense counsel and assistant prosecutor Lillie. Lillie informed the court that he had just met with the complaining witness and, based on this meeting, wanted to dismiss the case. The complaining witness and Stafford were not present at this conference. The court indicated that the motion would not be granted and that the case would proceed as scheduled for jury trial the following day.
At approximately 4:30 p.m., defense counsel and Stafford met with the court to discuss the case. At neither pretrial conference were the specific facts of the case discussed with the court. The defense counsel indicated that his client would waive his right to jury and try the case to the court. Stafford stated that she would proceed to trial as scheduled and present the witnesses to the court for testimony and determination.
On the morning of the trial, the prosecutor filed a formal motion to dismiss. The motion set forth "insufficient evidence" as grounds for the dismissal. The motion contained no factual information or supporting documents. The prosecutor did not request a hearing on the motion.
Court was convened and the court indicated that the motion would be denied. The prosecutor's request for immediate journalization of the order was deferred so that the case could proceed. Upon this notice, the prosecutor asked permission to leave the courtroom to bring in a witness for the trial. The prosecutor returned to the courtroom, not with a witness, but with a prepared and filed notice of appeal. The prosecutor indicated that he had filed the notice of appeal when he stepped out of the courtroom.
Based upon the issue of jurisdiction of the trial court to proceed in light of the notice of appeal, the case was continued to Wednesday, October 2, 1991.
A dismissal of a criminal charge by a prosecutor is governed by Crim.R. 48(A). Crim.R. 48(A) states:
"The state may by leave of court and in open court file an entry of dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate." (Emphasis added.)
Prior to the adoption of Crim.R. 48, a prosecutor's authority to dismiss a criminal case was governed by R.C. 2941.33. This statute similarly permitted the prosecutor to dismiss a criminal charge only upon leave of the court.
As the court noted in United States v. Strayer (C.A.10, 1988), 846 F.2d 1262, 1265:
"Requiring the government to obtain leave of the court to dismiss an indictment serves two purposes. The primary purpose is to protect a criminal defendant from prosecutorial harassment. The rule is also intended to allow courts to consider public interest, fair administration of criminal justice, and preservation of judicial authority when evaluating motions to dismiss."
See, also, United States v. Carrigan (C.A.10, 1985), 778 F.2d 1454, 1463.
The term "leave of court" as a requirement for dismissal by the prosecutor, mandates the exercise of discretion by the court. There is no dispute that the prosecutor has complete discretion in the initiation of a criminal proceeding. Once that discretion is exercised by the prosecutor and the criminal charge is brought, however, control of the case shifts from the prosecutor to the court. As such, while the court is required to give strong consideration to the prosecutor's decision to terminate a criminal action, the prosecutor's decision alone is not determinative of the issue.
Courts which have addressed this issue have uniformally held that it is the court, not the prosecutor, who makes the ultimate decision to terminate a criminal prosecution. Thus, in State v. Trocodaro (1973), 36 Ohio App.2d 1, 65 O.O.2d 1, 301 N.E.2d 898, the court held that a prosecutor is without the authority to dismiss a criminal charge. Rather, it may "* * * only be done by the court upon the recommendation of the prosecutor." (Emphasis added.) Trocodaro, id., 36 Ohio App.2d at 10, 65 O.O.2d at 7, 301 N.E.2d at 904. The Ohio Supreme Court, in State ex rel Lotz, v. Hover (1963), 174 Ohio St. 380, 22 O.O.2d 443, 189 N.E.2d 433, also upheld the position that it is the role of the court, not the prosecutor, to dismiss a criminal proceeding.
Construing the similarly worded Fed.Crim.R. 48, the court in United States v. Cowan (C.A.5, 1975), 524 F.2d 504, stated that the deliberate insertion of the phrase "by leave of court" denotes judicial choice. Id. at 512. At common law there was no such restriction on the prosecutor. The adoption of the language in Crim.R. 48 manifested a clear intent "* * * to make a significant change in the common law rule by vesting in the courts the power and the duty to exercise a discretion for the protection of the public interest." (Emphasis added.) Id. at 511.
In the motion to dismiss, the prosecutor acknowledges that the leave of court is required to dismiss a criminal prosecution. It is the prosecutor's position, however, that a conclusory statement as grounds for dismissal, without any supporting factual statements or evidence, is sufficient to meet this requirement. The prosecutor argues that a presumption of good faith and a claim of client confidentiality precludes the court from inquiring into the underlying reason for the dismissal.
This argument ignores the fact that a single conclusory legal statement, without factual information, does not provide the court with a basis for making a decision. A motion to dismiss by the prosecutor seeks to have the court put its approval on the prosecutor's decision to terminate the criminal case. United States v. Krakowitz (S.D.Ohio 1943), 52 F. Supp. 774. Such an approval cannot be given unless the court is aware of the factual basis for the prosecutor's decision. Moreover, for the court to blindly accept the prosecutor's unsupported assertion of "insufficient evidence" without inquiry would be merely to give a "rubber stamp" approval of the prosecutor's motion. Such a result is not only contrary to the express language of Crim.R. 48, but is also contrary to the duty of the court to consider the public interest.
The court has reviewed all of the cases cited by the prosecutor in the motion to dismiss. In all of the cases cited by the prosecutor, however, the one common, uniform element is that the court's ruling on the prosecutor's motion to dismiss was made after testimony or other evidence was presented to the court. In none of the cases cited did the court accept an unsupported legal conclusion of insufficient evidence as grounds for dismissal.
Two cases were noted by the prosecutor on the issue of insufficiency of evidence. State v. Dixon (1984), 14 Ohio App.3d 396, 14 OBR 513, 471 N.E.2d 864, and United States v. Greater Blouse, Skirt Neckware Contractors Assn. (S.D.N.Y. 1964), 228 F. Supp. 483. A review of both of these cases shows that they are not supportive of the prosecutor's position.
In Dixon, supra, the trial court ordered the suppression of evidence not timely disclosed by the prosecutor to the defendant. Without such evidence the prosecutor could not present a case. In that case, the missing evidence was clearly identified and addressed in a prior hearing. The issue in the case in Dixon, supra, was whether the trial court acted correctly in dismissing the case on its own motion with prejudice instead of accepting the prosecutor's motion to dismiss without prejudice.
The court's decision in United States v. Greater Blouse, supra, not only does not support the prosecutor's position, but, rather, is contrary to it. The court in that case specifically stated that while there is a presumption of good faith by the prosecutor, it is not conclusive upon the court. Id. at 486. Rather, the term "by leave of court" in Fed.Crim.R. 48 " contemplates public exposure of the reasons for the abandonment" of the criminal proceedings. (Emphasis added.) Id. at 486. In reaching this decision, the court held that for the prosecutor's motion to be granted, the court "should be satisfied that the reasons advanced for the proposed dismissal are substantial and the real grounds upon which the application is based." Id. at 486.
The prosecutor's reliance on Judge Bell's opinion in United States v. Friedman (N.D.Ohio 1985), 107 F.R.D. 736, is also not supportive of the city's position. In Friedman, supra, the defendant was tried before a jury, found guilty, and was serving his jail sentence when the motion for a new trial was filed. After two separate hearings, a new trial was granted due to undisclosed evidence from the prior trial. Subsequent to the new trial being ordered, the prosecutor filed a motion to dismiss. The motion was extensively briefed and a hearing was held on the issue. The reasons for dismissal presented by the prosecutor included a decision not to disclose material information to the defendant and the protection of an informant's identity.
In the present case the prosecutor has not offered any reason for dismissal other than "insufficient evidence" without elaboration. Unlike the case in Friedman, supra, the prosecutor has not provided proof of an ongoing investigation that would be compromised by proceeding with the case for trial or stated specifically, with supporting factual information, the reason for dismissal.
The reasons for the court to be permitted to inquire into the grounds for dismissal and set out an evidentiary basis on the record are even more compelling in the area of domestic violence. Simply put, domestic violence is a physical or verbal assault by one member of a household upon another. R.C. 2919.25. Because of the ongoing relationship between defendant and the complaining witness, there are emotional considerations that are not normally present in an assault case in which the parties are not members of the same household. The enactment of a separate criminal offense of domestic violence is of itself recognition of the unique aspect of this offense. In addition, the General Assembly has enacted statutory protections to a victim of domestic violence that are not available to a victim of other types of physical violence crimes. See, e.g., R.C. 2919.26 and 3113.31.
In many cases the prosecutor's case is based mostly or entirely on the complaining witness's testimony. It is not uncommon for the complaining witness to attempt to have the case dismissed or to recant the previous statement that was the basis of the criminal charge. The change in story by the victim in a domestic violence case does not automatically lead to the dismissal of the case. See, e.g., Toledo v. Easterling (1985), 26 Ohio App.3d 59, 26 OBR 233, 498 N.E.2d 198 (change of victim's testimony is issue for the court to decide).
Studies have shown that domestic violence is often a recurring and ongoing problem. Neither the prosecutor nor the court is legally able to sanction such conduct by dismissing a case solely at the request of the complaining witness. The crime of domestic violence, like all other criminal acts, is an offense against society as well as the individual. In deciding to dismiss a case, the public interest, as well as the interests of the complaining witness, defendant and the Government must be considered.
The court's decision to overrule the motion to dismiss in the present case should not be taken as the court's view on the innocence or guilt of the defendant. Not only has no evidence been presented in this case, but, further, no factual recitation of the incident which gave rise to this case has been given to the court. Moreover, by asserting insufficient evidence, without elaboration, the court is unaware if the lack of evidence is due to a missing element of the offense, such as the complaining witness not being a member of the defendant's household for the purposes of R.C. 2919.25, the reluctancy of the complaining witness to go forward, or merely the prosecutor's lack of belief of the complaining witness.
If the insufficient evidence is due to lack of credibility, then the case should not be dismissed until the court has had the opportunity to hear the testimony of the complaining witness. The issue of credibility in a criminal proceeding is an issue of fact that is to be decided by the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212. The court's automatic acceptance of the prosecutor's assertion of lack of credibility of the complaining witness, with no inquiry by the court, would be a derelection of the court's duty by blindly accepting the prosecutor's judgment instead of making its own.
In the present case the complaining witness's statements were obviously sufficient and credible for the prosecutor to not only commence a criminal prosecution against the defendant, but, also, after a lapse of time of two weeks, seek and obtain a temporary protective order against the defendant. Nor was the insufficient evidence discovered by the prosecutor when the pretrial conference was conducted in July, or when the case was initially prepared for trial in August. The sudden change by the prosecutor, after many stages of review of the case, coupled with the prosecutor's reluctance to provide the court with any evidentiary basis to dismiss the case, belies any assertion of good faith.
While proof beyond a reasonable doubt is not necessary for the commencement of a criminal prosecution, it is assumed that the prosecutor would at least meet with the complaining witness and review her statement with her before initiating a criminal prosecution. In the motion to dismiss the prosecutor stated that the prosecutor's first review of the case is not made until the pretrial conference. This after-the-fact practice or policy recklessly subjects a defendant to unnecessary criminal prosecution.
As was stated earlier, the prosecutor has complete discretion in the initiation of a criminal proceeding. While this is not to say that evidence may be subsequently discovered that justifies the dismissal of the criminal proceeding, the time for the prosecutor's review of the case should be when the decision is made to commence the criminal proceeding, not after, when the defendant has been subjected to criminal prosecution.
A criminal prosecution is not like a civil action, where the plaintiff can dismiss as a matter of right prior to the commencement of trial. Civ.R. 41. Rather, a criminal prosecution, especially in the area of domestic violence, where family members are involved, imposes serious burdens upon the complaining witness and defendant, as well as other household members. As such, there is clearly a public interest to protect by making sure that a case is not commenced without adequate basis, permitted to proceed in the court, and then be dismissed on the eve of trial without explanation by the prosecutor, other than conclusory statements. Moreover, the public interest extends beyond the present case.
Before the court was able to proceed with an inquiry of the ground for dismissal or conduct any hearing, the prosecutor filed a notice of appeal. The effect of a notice of appeal removes the jurisdiction of the case from the trial court to the court of appeals. The prosecutor cited State v. Malinovsky (1991), 60 Ohio St.3d 20, 573 N.E.2d 22, as the basis for appeal. This decision, as well as Crim.R. 12(J), which sets out the requirements for appeal by the state, does not appear to apply in this case. Moreover, United States v. Carrigan, supra, which addressed the same issues in the federal court, holds that the denial of the prosecutor's motion to dismiss was not a final appealable order.
The court recognizes, however, that the appealability of this order has not been decided by the courts in Ohio. In addition, the issues of jurisdiction of the court of appeals in this case is for that court, not the trial court.
By the prosecutor's filing of a notice of appeal, the trial court is divested of jurisdiction unless and until the case is remanded from the court of appeals. Consequently, this court is unable to conduct an evidentiary hearing or proceed with this case at this time.
The prosecutor's motion to dismiss is overruled on the grounds of lack of compliance with Crim.R. 48 and the insufficient basis put forth by the prosecutor for considering the motion. Due to the pending appeal, further proceedings in this court will be stayed until order of the court of appeals.
So ordered.