State of Missouri v. Semaj Harris
Date Filed2022-12-13
DocketWD84640
JudgeThomson, J., concurs. Gabbert, J., dissents in a separate opinion.
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
In the
Missouri Court of Appeals
Western District
ļ¼
STATE OF MISSOURI, ļÆ
Appellant, ļÆ WD84640
ļÆ
v. ļÆ OPINION FILED:
ļ½ December 13, 2022
SEMAJ HARRIS, ļÆ
ļÆ
Respondent. ļÆ
ļÆ
ļ¾
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Jon Edward Beetem, Judge
Before Division Three: Gary D. Witt, Presiding Judge, Anthony Rex Gabbert, Judge, and
W. Douglas Thomson, Judge
The State of Missouri (āthe Stateā) appeals the dismissal of charges against Harris
with prejudice in the Circuit Court of Cole County, Missouri (ātrial courtā). The State
presents two points on appeal. First, it argues that the trial court exceeded its authority
when it turned a dismissal without prejudice into a dismissal with prejudice. Second, it
argues that a prior plea did not foreclose prosecution for armed criminal action. The
judgment is affirmed in part and reversed in part, and the case is remanded.
1
Facts
On April 18, 2019, Semaj Harris (āHarrisā) was charged with felony murder in the
second degree and first-degree robbery of a handgun. The charges pertained to the robbery
of M.S. and the subsequent shooting death of N.N. on or about November 19, 2018. Harris
was arraigned, discovery was had, and plea negotiations took place.
On May 10, 2019, Harris entered into a deferred prosecution agreement (āDPAā)
with the State. The agreement provides in pertinent part as follows:
I, Semaj Harris, do swear and affirm the following:
1. The State of Missouri has charged me with the felonies of Felony Murder
and Robbery 1st. My trial date is on May 13, 2019.
2. I, Semaj Harris, hereby agree and admit under penalty of perjury, that on
or about 11-19-2018, I acting knowingly in concert with others, participated
in criminal conduct to steal marijuana and in the course thereof a murder
resulted.
3. I, Semaj Harris, further understand that the Cole County Prosecuting
Attorney is willing to defer prosecution against me for a period of five years
on all charges enumerated above provided that I comply with each and every
provision of this agreement.
4. I enter into this agreement voluntarily and knowingly, I understand each
of the terms enumerated below for this agreement, and I have had the
assistance of counsel in understanding and complying into the future for the
successful conclusion of this agreement.
TERMS OF THE AGREEMENT
A. I, Semaj Harris, will assist as a willing participant in the prosecution of
Berry Jones and Bruce Thomas, including, but not limited to, answering
summons and subpoenas, and testifying fully and truthfully when requested;
I will not assert my right against self-incrimination for any potential criminal
2
acts which implicate criminal behavior of the co-defendants or myself. I will
not and have not lied during a proffer or any other testimony.
B. I, Semaj Harris, will plead guilty to 570.030 RSMo, the felony of
accessory stealing of a controlled substance (class D felony), for which the
State will recommend five years in the department of corrections. The counts
of mentioned above in 3. (sic) would be deferred with no plea, and will be
dismissed (with prejudice) at the conclusion of this agreement in five years
if I comply with all the terms of this agreement. . . .
Upon entry of the agreement, Harris pled guilty to stealing marijuana and was sentenced
to five years in the Department of Corrections pursuant to the agreement. The remaining
charges were dismissed without prejudice. Harris was paroled once he reached his
conditional release date on the five-year sentence.
On December 17, 2019, the State filed a joint indictment against Harris and Barry
Jones for the events on or about November 19, 2018, which gave rise to the plea agreement.
The indictment alleged the following counts against Harris1: Count V ā felony murder in
the second degree; Count VI ā robbery in the first degree of marijuana and a handgun;
Count VII ā delivery of a controlled substance; Count VIII ā armed criminal action based
on robbery in first degree and distribution of a controlled substance; Count IX ā unlawful
possession of a firearm; and Count X ā tampering with physical evidence. On February 7,
2020, Harris filed a motion to dismiss the indictment. He alleged that the State violated
the DPA by bringing the charges. Harris further argued that the charges violated his right
to be free from double jeopardy because the stealing charge of which he had been convicted
1
Counts I ā IV allege charges against Jones and not Harris.
3
and for which he had served time was a lesser-included offense of the robbery charge with
respect to stealing marijuana.
At the hearing on Harrisās motion, the State argued that Harris had failed to comply
with the terms of the DPA. The State alleged that Harris lied under oath in a September
26, 2019 deposition regarding the events of November 19, 2018. The State relied on
reports, depositions, and the testimony of a law enforcement detective in an attempt to
establish the alleged violation of the DPA.
On May 25, 2021, the trial court granted Harrisās motion to dismiss the charges of
felony murder, first-degree robbery, and armed criminal action. The court found āthe
offered proof insufficient to establish that it is more likely than not that Harrisās statements
that he did not enter the premises and that he had a gun were false; and that he violated the
terms of the DPA by making such false statements.ā2 The court further found that even if
Harris had breached the DPA, ābasic principles of contract law prevent the State from
claiming a breach and avoiding performance under the contractā because the āState
received a plea of guilty from Harris and he served prison time on that plea. Harris
bargained that such a sentence would be the sole consequence of his conduct on [November
19, 2018].ā The court noted that the probable cause statement filed with the original
complaint in Harrisās case makes āclear that at least one witness said Harris had a gun and
entered the premises on [November 19, 2018]. Yet, despite having the knowledge of those
2
The above language from the trial court is correctly quoted, however, the testimony that the prosecutor
argued was false was Harris's testimony that he did not have a gun. The trial court simply mischaracterized that
testimony.
4
contradictions, the State entered into the DPA with Harris. Surely the State did not intend
for Harris to change his story in exchange for the [DPA].ā It found the Stateās claim of
fraud in the inducement to fail for the same reason. Finally, the court found that the charge
of robbery with respect to marijuana was barred by double jeopardy because Harris already
pled guilty to stealing marijuana, a lesser included offense of robbery. The court ruled:
1. Count V - Felony Murder of the Joint Supersedeas Indictment is dismissed
without prejudice as to the stealing a handgun due to the DPA but is dismissed
with prejudice as to the stealing marijuana as that claim is barred by double
jeopardy.
2. Count VI - Robbery 1st of the Joint Supersedeas Indictment is dismissed
without prejudice as to the stealing of a handgun due to the DPA, but is
dismissed with prejudice as to the stealing of marijuana as that claim is barred
by double jeopardy.
3. Count VII - Delivery of a Controlled Substance remains viable against
Defendant Semaj Harris.
4. Count VIII - Armed Criminal Action of the Joint Supersedeas Indictment
is dismissed as it is charged in the conjunctive linking Robbery 1st and
Distribution of a Controlled Substance, however only the ACA based upon
Robbery 1st is dismissed with prejudice. The State could proceed by
amending its charge only to ACA based on Distribution of a Controlled
Substance.
5. Counts IX and X of the Joint Supersedeas Indictment remain viable against
Defendant Semaj Harris and the charges set forth in those counts against
Defendant Semaj Harris remain set for trial.
The judgment included this footnote:
Dismissals without prejudice due to the terms of the DPA assume that there
is insufficient proof of a breach. Theoretically, if the State could adduce
sufficient credible evidence to convince the Court of a breach by Harris, it
could then proceed on the allegations in the supersedeas indictment which
5
are found to be barred by the DPA in this order. That would likely require a
full trial on these charges, same being a violation of the DPA.
On May 27, 2021, the State requested a new hearing on the order alleging that Harris
had committed new offenses and that it could prove multiple violations of the DPA. A
hearing was scheduled for June 24, 2021 but before the hearing was held a new indictment
was filed by the State. On June 16, 2021, the State filed a new indictment against Harris
and Jones for the events on or about November 19, 2018, which gave rise to the DPA. The
indictment alleged the following counts against Harris3: Count V ā felony murder in the
second degree; Count VI ā accessory robbery in first degree of a handgun; Count VII ā
accessory delivery of a controlled substance; Count VIII ā armed criminal action based on
robbery in first degree and distribution of a controlled substance; Count IX ā unlawful
possession of a firearm; Count X ā accessory tampering with physical evidence; and Count
XI ā unlawful use of a weapon. Harris filed a motion asking the court to dismiss Counts
V, VI, and VIII. Harris argued that he did not breach the DPA and that the charged crimes
were barred by the DPA. At the hearing on the motion, the State presented evidence that
Harris had a habit of carrying a firearm and that he had violated the conditions of his parole
in violation of the DPA.
The trial court considered the additional evidence offered by the State but found
āthat this evidence is insufficient to support a finding that it is more likely than not Harris
lied when he said he did not have a gun on the night in question.ā Further, the alleged
3
Counts I ā IV allege charges against Jones and not Harris.
6
evidence of breach āwas known to the State when they entered into the DPA with Harris.
And yet they did.ā The judgment stated that āthe credible evidence adduced does not
convince the Court that Harris violated the agreement. Likely yes, more likely than not,
no.ā With respect to the allegation that Harris engaged in conduct that violated the terms
of his parole, the court noted that Harrisās āparole was revoked for this subsequent conduct,
and he is now back in the Department of Corrections, serving the remaining time on the
sentence he accepted when he entered into the DPA.ā It further found that violation of
parole conditions would not violate the terms of the DPA.
Harris raised the issue of the implied covenant of good faith and fair dealing because
the State had the evidence it was relying on in its possession when the DPA was executed.
The court found that ā[b]ecause Harris continues to assert the same story that he has always
told, the State wishes to punish him by revoking the [DPA] and restoring the murder
charges against him.ā It stated:
Harris cannot declare the agreement void due to the Stateās conduct and be
restored to his original position. While Harris may not have fully performed
his obligations under the contract, he has at least substantially performed by
pleading guilty and accepting the prison time. The contract may not be
rescinded. Harris v. Desisto, 932 S.W.2d 435 (Mo. App. 1996).
The State made a bad deal. For the reasons set forth above and
particularly because the State sought and received prison time from Harris,
the State is stuck with the agreement.
The trial court ruled:
1. Count V of the Joint Supersedeas Indictment filed June 16, 2021, charging
Felony Murder as a result of the felony of stealing a handgun is dismissed
with prejudice.
7
2. Count VI of the Joint Supersedeas Indictment filed June 16, 2021, charging
Robbery 1st due to stealing of a handgun is dismissed with prejudice.
3. Count VIII of the Joint Supersedeas Indictment filed June 16, 2021,
charging Armed Criminal Action based upon Robbery 1st is dismissed with
prejudice. The State will be allowed to proceed on the Armed Criminal
Action charge based upon Distribution of a Controlled Substance as set forth
in this most recent indictment. Count IX will be amended by interlineation,
immediately after the words, āState of Missouriā, to read as follows:
the defendant committed the felony of Distribution of a
Controlled Substance and the defendant committed the
foregoing felony by, with and through the knowing use,
assistance and aid of a handgun, a deadly weapon.
Defendant is so advised.4
4. The State may proceed on Count VII - Accessory Delivery of a Controlled
Substance, Count VIII Armed Criminal Action relative to Count VII -
Accessory Delivery of a Controlled Substance, Count IX - Unlawful
Possession of a Firearm and Count X - Accessory Tampering with Physical
Evidence.
The judgment included this footnote:
This hearing constitutes a second ābite of the appleā and failing to prevail,
merits a dismissal with prejudice. It also makes the resolution of these claims
final for the purposes of review.
4
Harris argues on appeal that the dismissal of Count VIII is not a final judgment. He states that the trial
court only dismissed Count VIII for armed criminal action to the extent it was based on robbery in the first degree. It
permitted Count VIII to go forward to the extent it was premised on distribution of a controlled substance. Thus, he
claims the dismissal of Count VIII for armed criminal action premised on robbery in the first degree is not final.
The court explicitly dismissed the charge of armed criminal action premised on robbery in the first degree
with prejudice. āA dismissal with prejudice is a final order.ā State v. Triplett, 355 S.W.3d 543, 548(Mo. App. W.D. 2011). āIn criminal cases, a judgment is final when the trial court enters an order of dismissal or discharge of the defendant prior to trial which has the effect of foreclosing any further prosecution of the defendant on a particular charge.āId.
(internal quotation marks omitted). That is the effect of the judgment in this case. Pursuant to the courtās
judgment, the charge of the crime of committing armed criminal action in the course of the perpetration of the crime
of first-degree robbery can never be prosecuted. We find that the judgment as to this count is final.
8
This appeal follows.5
Standard of Review
āThis Court has not addressed the standard of review of a judgment
sustaining a motion to dismiss a criminal indictment[.]ā State v. Merritt, 467
S.W.3d 808, 810 (Mo. banc 2015). In Merritt, this Court applied civil case
law precedent to hold, if the dismissal is justified on any ground alleged in
the motion, this Court will affirm the judgment. Id. at 810-11. State v. R.J.G.,632 S.W.3d 359
, 364 (Mo. banc 2021). A plea agreement is a contract between the State and a defendant, and, as such the intent of the parties is ascertained by looking at the words in the contract, giving those words their plain and ordinary meaning unless the contract is ambiguous. Evans v. State,28 S.W.3d 434, 439
(Mo. App. S.D. 2000); Cornelius v. State, ___ S.W.3d ___ No. S.D. 36988,2022 WL 3585069
*5-6. All ambiguities in a plea agreement must be resolved in favor of the defendant. See, e.g., U.S. v. Gregory,245 F.3d 160, 165
(2d Cir. 2001).
Point I
In its first point on appeal, the State argues the trial court erred in dismissing Counts
V, VI, and VIII of the superseding indictment against Harris with prejudice. It states that
the trial court did not have authority to turn a dismissal without prejudice into a dismissal
with prejudice. The State further claims that the parties did not agree to a dismissal with
5
As of the time of the writing of this opinion, Count VII (accessory delivery of a controlled substance);
Count VIII (armed criminal action based on distribution of a controlled substance); Count IX (unlawful possession
of a firearm); Count X (accessory tampering with physical evidence); and Count XI (unlawful use of a weapon) are
still pending. Trial is currently set for January 2023. This opinion does not address the charges still pending against
Harris as they are not before this court.
9
prejudice prior to the completion of the DPA. Given our disposition of Point II, we only
discuss Counts V and VI in this point.
The trial court appears to have dismissed the charges against Harris with prejudice
as a sanction against the State for repeatedly filing charges against Harris when it had not
shown that Harris had breached the DPA. The vast majority of cases in which a trial court
orders sanctions involve discovery violations, which are controlled by Supreme Court Rule
(Rule 61 in civil cases and Rule 25 in criminal cases). However, courts also have an
inherent power to sanction, outside of the Rules. See, e.g., Hale v. Cottrell, Inc., 456
S.W.3d 481(Mo. App. W.D. 2014); State ex rel. Jackson Cty. Prosecuting Attorney v. Prokes,363 S.W.3d 71, 83
(Mo. App. W.D. 2011). Prokes quotes a case from the federal
courts with very strong language:
Preliminarily, we note that it is now clear that a federal court has the inherent
power to sanction for conduct which abuses the judicial process. This power
is governed not by rule or statute but by the control necessarily vested in
courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases. Moreover, pursuant to this power, a court
may impose the severe sanction of dismissal with prejudice (or its equivalent,
judgment) if the circumstances so warrant.
Barnhill v. U.S., 11 F.3d 1360, 1367(7th Cir. 1993). Prokes follows this quote by stating, "Trial courts must be allowed discretion to control their own dockets or other cases and parties suffer by not being allowed their timely day in court." Prokes,363 S.W.3d at 83
.
Hale uses similar language referring to the court's inherent power to sanction, holding that
sanctions are appropriate in "situations where it is reasonably necessary to preserve the
10
court's existence and protect it in orderly administration of its business." Hale, 456 S.W.3d
at 488(quoting Rea v. Moore,74 S.W.3d 795, 800
(Mo. App. S.D. 2002)).
In this case, the State chose almost immediately to refile the charges after the trial
court, following a hearing, found that the State had failed to establish that Harris had
violated the DPA. And at the subsequent hearing after the refiling of the charges, the State
adduced scant additional evidence of a violation of the DPA, with all of the evidence
presented by the State at the second hearing having been available to the State prior to the
first hearing. The Stateās act of repeated re-filing of criminal charges against Harris when
he had not breached the DPA gave the trial court reason to protect its existence, manage its
affairs to achieve the orderly and expeditious disposition of cases, and protect its orderly
administration of business, all of which are cited as appropriate uses of the courtās inherent
power to sanction. We are sympathetic to the trial courtās frustration and, in fact, absent
the DPA, the courtās dismissal of the charges against Harris with prejudice may well have
been consistent with the above-stated principles and cases.
However, both parties agree and the trial court found that the DPA is a valid contract
that binds both parties. Both parties agreed at the appellate oral argument that the DPA is
still in effect and that, pursuant to its terms, the DPA runs through May 10, 2024. Harris
agreed to assist in the prosecution of Jones and Thomas for a period of five years. He also
agreed to plead guilty to stealing with a recommended sentence of five years in the
Department of Correction. Those are his obligations under the DPA. He did, in fact plead
guilty to stealing and served the prescribed sentence. But when it dismissed the charges
11
with prejudice, the trial court effectively ended the DPA and made it so Harris no longer
had to abide by its terms, deleting his obligation to assist in the prosecution of Jones and
Thomas. This is erroneous even though it is difficult to imagine how the State could
reasonably use Harrisās testimony in future prosecutions, having repeatedly filed motions
with the court setting forth the Stateās belief that Harrisās testimony regarding the events
of November 19, 2018, was false or āimpossibleā and also comply with the State's
obligation not to suborn perjury. The trial courtās impermissible interference with the DPA
warrants reversal of the dismissals with prejudice in favor of dismissals without prejudice.6
Point I is granted.
Point II
In its second point on appeal, the State argues that the trial court erred in dismissing
Count VIII of the superseding indictment. Count VIII was for armed criminal action
premised on the commission of first-degree robbery. The State claims that Harrisās prior
plea to stealing did not foreclose prosecution for armed criminal action. It states that there
was no agreement by the parties for the State to forgo a prosecution for armed criminal
action based on first degree robbery and that there is no prohibition on an additional
prosecution for armed criminal action, even where a prosecution for the underlying offense
is prohibited by double jeopardy. While we agree that double jeopardy does not prohibit
6
The principles set forth in Prokes and Hale would allow the trial court to issue an order prohibiting the
State from filing any further charges against Harris arising out of the events occurring on November 19, 2018,
unless the State has first obtained an order from the trial court finding that Harris has violated the DPA; and
currently, as the trial court has found, Harrisās only remaining obligation under the DPA is to testify truthfully.
12
prosecuting Harris for armed criminal action, an offense for which he was not initially
charged, double jeopardy principles do color the contract interpretation of the DPA so that
it affects what Harris reasonably believed were the terms of his agreement with the State.
We begin our analysis with the principle that plea agreements are like any other
contracts, and so we
ascertain the intent of the parties by looking at the words of the contract and
giving those words their plain, ordinary, and usual meaning. The āintent of
the parties. . . is determined based on the contract alone unless the contract
is ambiguous.
ā[A] contract is only ambiguous, and in need of a courtās interpretation, if it
terms are susceptible to honest and fair differences.ā āA contract is not
ambiguous merely because the parties disagree on its construction.ā āAn
ambiguity exists when there is duplicity, indistinctness, or uncertainty in the
meaning of the language in the policy. Language is ambiguous if it is
reasonably open to different constructions.ā
Cornelius, __ S.W.3d ___, 2022 WL 3585069(Aug. 22, 2022), quoting Ethridge v. TierOne Bank,226 S.W.3d 127, 131
(Mo. banc 2007). Whether a contract is ambiguous is a question of law, which we review de novo. Dunn v. Baker,533 S.W.3d 831, 835
(Mo. App.
E.D. 2017).
It is fairly clear that the trial court read the DPA as being unambiguous. Although
the court found that āMr. Harris likely thought he was negotiating all risk of trial for any
charges stemming from the events of November 19, 2018,ā and, indeed, expressly found
in another order that āHarris bargained that such a sentence would be the sole consequence
of his conduct on November 1[9], 201[8],ā the trial court ultimately concluded that the
āclear terms of the agreement only refers [sic] to charges of Felony Murder and Robbery
13
1st.ā The trial court apparently found that Harrisās understanding was overridden by the
unambiguous āreleaseā provisions in the DPA.
We disagree with the trial courtās analysis and conclude that the DPA is, at a
minimum, ambiguous as to whether the State merely agreed, so long as Harris complied
with the agreement, not to prosecute felony murder and first-degree robbery or whether it
agreed that Harris would face no other charges arising out of the 2018 criminal episode. In
general, all related crimes should be disposed of together. See Wayne R. LaFave, et al.,
Criminal Procedure, Section 17.4(c) (4th ed. Nov. 2021 update). "Either by statute or court
rule, or occasionally by judicial decision, a number of jurisdictions now provide that the
prosecutor must join (or, that on motion of the defendant, there must be joined) all offenses
arising out of the same transaction. Provisions in the Model Penal Code, ABA Standards[,]
and Uniform Rules all so provide." This policy is grounded in principles of claim
preclusion and double jeopardy. LaFave cites Ashe v. Swenson, 397 U.S. 436, 439-40
(1970), wherein a criminal defendant who had been acquitted of having robbed one man in
a group of men could not then be tried for having robbed another man in the same group
during the same course of events as the prosecution attempted. This was true even though
the state had, subsequent to the first trial, secured stronger identification witnesses against
the defendant. Although Ashe clearly implicates double jeopardy, since the jury had
already once determined that Ashe had not been proven to be one of the robbers, the
14
common practice and the proper administration of justice is not to prosecute criminal
actions of an individual arising from a single course of events in a piecemeal fashion.7
Moreover, the Stateās interpretation of the DPA as unambiguously applying only to
felony murder and first-degree robbery could plausibly forever alter the process of plea
negotiations in the state of Missouri. Under the Stateās interpretation, immediately after
Harris entered his plea of guilty on the charge of stealing of a controlled substance and was
sentenced for that offense pursuant to the DPA, the State would be free to file any and all
other charges that may have arisen out of the events of November 19, 2018, even without
any allegation that Harris violated the DPA. In fact, the statements Harris made at
sentencing in order to make the factual basis for the plea to the charge of stealing could be
used against him in prosecuting those new charges. Further, under this interpretation of
the agreement, Harris was required to testify truthfully against the other defendants in the
prosecution of the charges arising from the events of November 19, 2018, and waive any
right he would have had to assert his rights under the Fifth Amendment not to incriminate
himself. In fact, the agreement expressly states, "I will not assert my right against self-
incrimination for any potential criminal acts which implicate criminal behavior of the
7
The dissent cites to the same section of LaFave quoting a case from the Florida Court of Appeals in 1971
calling the "same transaction" rule "absurd" and then citing an unpersuasive example consisting of two major crimes
that would almost always be tried together and a municipal traffic violation. We do not find this case persuasive. In
any event, we are not holding that all cases from the same transaction must be tried together, only that any plea
agreement, the vast majority of which are never even reduced to writing particularly in misdemeanor cases,
expressly state on the record when it is the State's intention not to cover all of the offenses committed as part of the
applicable criminal episode that are known to the government at the time of the agreement. Similar to a civil
settlement agreement of a pending lawsuit, it is presumed that the settlement covers every part of the dispute
between the parties. If less than all issues are being resolved, it is imperative that the agreement clearly set forth all
issues that will remain unresolved following the entry of the settlement agreement.
15
co-defendants or myself.ā (Emphasis added). Under the trial courtās interpretation, the
State would not be in violation of the DPA to then use Harrisās testimony from the
depositions or trial of the co-defendants to charge Harris with additional crimes arising
from the events of November 19, 2018, with the sole exceptions of felony murder and first-
degree robbery. And if Harris, knowing his truthful statements would incriminate him, did
not testify truthfully, he would then be in violation of the DPA. Putting a defendant in this
type of Catch-22 trap does not fit within the parameters of good faith and fair dealing in
any plea agreement. Neither could it be said that such a scenario is within the reasonable
expectations of Harris when entering into the DPA.
This interpretation also decimates the consideration Harris received in return for his
promises under the DPA; he would have received very little value in return for his plea of
guilty and prison sentence and subjected himself to significant additional criminal liability.
Finally, under the DPA, Harris āwaive[d] [his] right to challenge the statute of
limitations of the counts enumerated above,ā i.e., felony murder and first-degree robbery.
The fact that the parties only agreed to preserve these two charges and no others also
suggests that other charges arising out of the same criminal episode were released pursuant
to the terms of the DPA. We conclude that all of these factors render the DPA ambiguous
at the very least.
āOnce an ambiguity is determined to exist, the partiesā intent can be ascertained
through the use of extrinsic [or parol] evidence. Resolution of an ambiguity through the
use of extrinsic evidence is question of fact.ā Cornelius, 2022 WL 3585069 at *6, citing
16
Central Stone v. Warning, 412 S.W.3d 908, 912 (Mo. App. E.D. 2013). Although Cornelius
instructs the courts to obtain extrinsic evidence to determine the partiesā intent as to the
terms of an ambiguous plea agreement, the trial court held hearings on whether Harris had
breached the DPA, and there was argument presented that the newly charged crimes were
within the scope of the DPA, so both parties had an opportunity to present such extrinsic
evidence and neither did so. Accordingly, we rely on the general interpretive canons to
resolve the ambiguities in Harrisās favor.
General interpretive canons would construe the DPA against the State as the drafter.
Here, LaFave, supra, Section 21.2(d) instructs that āboth constitutional and supervisory
concerns require[] holding the Government to a greater degree of responsibility than the
defendant (or possibly than would be either of the parties to commercial contracts) for
imprecisions or ambiguities in plea agreements.ā (quoting United States v. Harvey, 791
F.2d 294, 300(4th Cir. 1986). How to interpret a written plea agreement has not been addressed in Missouri with respect to interpretations of ambiguous plea agreements, but several federal cases are instructive.8 See, e.g., U.S. v. Rivera-Rodriguez,489 F.3d 48, 57
(1st Cir. 2007) (āBecause defendants must ultimately waive fundamental rights as a result
of entering into any plea agreement, we hold prosecutors engaging in plea [negotiations]
to the most meticulous standards of both promise and performance. This requirement
prohibits, therefore, not only explicit repudiation of the governmentās assurances, but must
8
We have found cases construing ambiguous plea agreements against the government in every federal
circuit, and have not found, nor has the State cited, any case refusing to interpret an ambiguous plea agreement
against the government.
17
in the interest of fairness be read to forbid end-runs around them.ā (internal quotations
omitted)); U.S. v. Gregory, 245 F.3d 160, 165(2d Cir. 2001) (āAll ambiguities in the agreement must be resolved in favor of the defendant.ā)); U.S. v. Williams,510 F.3d 416, 422
(3d Cir. 2007) (ā[I]n view of the governmentās tremendous bargaining power [courts] will strictly construe the text against [the government] when it has drafted the agreement.ā (internal quotations omitted)); U.S. v. Jorden,509 F.3d 191, 196
(4th Cir. 2007) (āWe thus hold the Government to a greater degree of responsibility than the defendant. . . for imprecisions or ambiguities in the plea agreements.ā) (internal quotation omitted)); U.S. v. Copeland,381 F.3d 1101, 1105
(11th Cir. 2004) (āIn determining the meaning of any
disputed terms in an agreement, the court must apply an objective standard and must decide
whether the governmentās actions are consistent with what the defendant reasonably
understood when he entered his guilty plea.ā (internal quotation omitted)).
This is true even if defendantās counsel bears some responsibility for not resolving
the ambiguity.
While private contracting parties would ordinarily be equally chargeableā
so far as enforceability and interpretation are concernedāwith their
respective counselsā derelictions in negotiating commercial contracts,
different concerns apply to bargained plea agreements. Unlike the private
contract situation, the validity of a bargained guilty plea depends finally upon
the voluntariness and intelligence with which the defendantāand not his
counselāenters the bargained plea.
Harvey, 791 F.2d at 300-01.
Finally, the principle of expressio unius favors Harrisās interpretation of the DPA.
Expressio unius, mostly applied to statutory construction, means that the āinclusion of a
18
particular limitation excludes all other limitations of that type.ā State v. Williams, 24
S.W.3d 101, 117(Mo. App. W.D. 2000). The principle has also been applied in the interpretation of contracts. Heartland Presbytery v. Gashland Presbyterian Church,364 S.W.3d 575, 586
(Mo. App. W.D. 2012). In this case, the DPA confirms Harrisās
āundertand[ing] that if I fail to comply with any of the above-stated terms, formal
proceedings may be instituted immediately. . . for the case enumerated aboveā (indicating
the felony murder and first-degree robbery charges that were pending). Under the
expressio unius principle, it appears that reinstitution of the felony murder and first-degree
robbery charges were the only consequence anticipated for breach of the DPA.
When formulating plea agreements, āthe prosecuting attorney and the defendant
should act fairly so that the reasonable expectations of both parties are met.ā State v.
Wright, 120 S.W.3d 792, 794(Mo. App. W.D. 2003). āIf the plea court, as finder of fact, determines that the parties either expressly (orally or in writing) or reasonably expected for the agreed-upon plea to address all of the relevant conduct, then the defendant should get the benefit of his bargain, and he is entitled to either specific performance of the plea agreement or an opportunity to withdraw his guilty plea.āId.
The trial court found as a
factual matter that āHarris bargained that [his five-year sentence per his plea] would be the
sole consequence of his conduct on November 19, 2018.ā This is a factual finding to which
we defer. And because we determined, as a matter of law, that the DPA was ambiguous as
to whether the State, under the DPA, agreed not to prosecute Harris for any of his actions
19
on November 19, 2018, absent his breach of the agreement, and canons of statutory
interpretation favor Harrisās interpretation, it is reasonable.
Harris pled guilty to stealing and served the sentence prescribed by the DPA;
therefore, āallowing him to withdraw his guilty plea would neither return him to the
position he was in before he entered into the agreement nor provide him with the benefit
of his bargain.ā Id. at 795. Where the defendant ācontemplated that he would face no additional charges from his. . . arrest,ā he is entitled to the benefit of that bargain.Id.
Accordingly, as the trial court found, even though the State had buyerās remorse after it
entered into the DPA with Harris, having concluded that Harris received insufficient
punishment under the terms of the DPA, all of the evidence the State offered at both of the
hearings had been known to the State prior to entering the DPA with Harris, and the State
was āstuck with the agreement.ā Even if the State does establish at some future time that
Harris has violated the DPA, the sole charges the State could bring against Harris for the
events of November 19, 2018 would be the felony murder and first-degree robbery charges
listed in the DPA.
So although we disagree with the trial court that Count VIII of the superseding
indictment for armed criminal action was barred by double jeopardy, we find that the State
is prohibited from charging Harris with this offense by the terms of the DPA. We
acknowledge that other charges remain pending in the trial court, but these are not before
us. Although we recognize that our interpretation of the DPA in this opinion may affect
the other charges currently pending against Harris, that matter is for the circuit court in the
20
first instance. The dismissal with prejudice of Count VIII is therefore affirmed. Point
denied.
Conclusion
The judgment is affirmed; however, the trial court is ordered to modify the dismissal
of Counts V and VI to be without prejudice. The dismissal with prejudice of Count VIII is
affirmed.
Gary D. Witt, Judge
Thomson, J. concurs.
Gabbert, J. dissents in separate opinion
21
In the
Missouri Court of Appeals
Western District
ļ¼
STATE OF MISSOURI, ļÆ
ļÆ
Appellant, ļÆ WD84640
v. ļÆ OPINION FILED:
ļ½ December 13, 2022
SEMAJ HARRIS, ļÆ
ļÆ
Respondent. ļÆ
ļÆ
ļ¾
DISSENTING OPINION
I concur with Point I of the majority opinion, and I respectfully dissent from the
majority opinion on Point II.
As for Point I, I agree that the trial courtās dismissal of the counts against Harris
with prejudice effectively relieves Harris from any obligations under the DPA, which, by
its terms, binds Harris until May 10, 2024. For this reason, I agree that the trial court
exceeded its authority in dismissing the charges with prejudice. I respectfully dissent from
the majority opinion with respect to Point II. Instead, I agree with the trial court that the
DPA is not ambiguous and bars only the enumerated offenses of murder and robbery.
1
āThe cardinal principle for contract interpretation is to ascertain the intention of the
parties and to give effect to that intent.ā Brown v. Smith, 601 S.W.3d 554, 560 (Mo. App. W.D. 2020). āThe intent of the parties ... is determined based on the contract alone unless the contract is ambiguous.āId.
(internal quotation marks omitted). ā[A] contract is only ambiguous, and in need of a courtās interpretation, if its terms are susceptible to honest and fair differences.āId.
(internal quotation marks omitted). āIf the contract is not ambiguous, this Court is limited to reviewing the four corners of the contract.āId.
āWhen considering whether a particular term or phrase is ambiguous the test is whether the disputed language, in the context of the entire agreement, is reasonably susceptible of more than one construction giving the words their plain meaning as understood by a reasonably average person.āId.
(internal quotation marks omitted) (emphasis in original).
Multiple parts of the DPA address its scope:
1. The State of Missouri has charged me with the felonies of Felony Murder
and Robbery 1st
ā¦
3. I, Semaj Harris, further understand that the Cole County Prosecuting
Attorney is willing to defer prosecution against me for a period of five years
on all charges enumerated above provided that I comply with each and every
provision of this agreement.
ā¦
B. ā¦ The counts of mentioned above in 3. (sic) would be deferred with no
plea, and will be dismissed (with prejudice) at the conclusion of this
agreement in five years if I comply with all the terms of this agreement.
ā¦
D. ā¦ I intentionally, willfully and fully waive my right to challenge the
statute of limitations of the counts enumerated above.
ā¦
G. I understand that if I fail to comply with any of the above-stated terms,
formal proceedings may be instituted immediately at the discretion of the
2
Prosecuting Attorney of Cole County, Missouri, or designated Special
Prosecuting Attorney for the case enumerated above.
(Emphasis added). The DPA refers multiple times to the enumerated counts of
murder and robbery. It never refers to other possible charges that could have been
filed arising out of the events of November 19, 2018. Nothing in the DPA suggests
that it applies to more than the enumerated charges of murder and robbery.
That the DPA in this case applied only to two enumerated charges does not
create a crisis for plea agreements in the State of Missouri. A DPA could easily state
that it applies to all possible crimes occurring during a certain timeframe. It could
easily state that it applies to all possible charges arising from a series of events.
In State v. Jones, 789 S.W.2d 856, 857(Mo. App. S.D. 1990), the defendant entered into a plea agreement wherein he would plead guilty to assault in the first degree, manufacturing marijuana, felony possession of marijuana, and armed criminal action. In exchange, the State would dismiss two charges of assault in the first degree and a charge of possession of pentobarbital.Id.
That agreement was presented to the court and approved on December 22, 1986.Id.
The defendant was subsequently charged with selling marijuana on September 22, 1986.Id.
The police report regarding that sale was not provided to the prosecuting attorney until the spring of 1987, and the defendant was charged later in 1987.Id.
The defendant filed a motion to dismiss alleging that the plea
agreement was to dispose of all criminal charges that could have been filed against him on
3
the date of the plea agreement. Id. To support this argument, the defendant cited this
exchange from the plea proceeding:
THE COURT: And itās my understanding upon him reporting, bond being
released, you will also file dismissals. As part of this plea bargain, you will
file dismissals on the other three charges.
MR. FISK: Correct, Your Honor.
THE COURT: And doesnāt that dispose of all cases that you have against
Mr. Jones?
MR. SWETNAM: Yes.
THE COURT: Youāre not aware of any other holds or any other cases then?
All right. Good-by, Mr. Jones. Good Luck.
Id. at 857-58. This court found that ā[w]hen the transcript of the plea proceeding of December 22, 1986, is considered as a whole, it unambiguously establishes the only plea agreement made was that the state would dismiss three pending counts and the defendant would plead guilty to four pending countsā¦.āId. at 858
.
The appellate court noted that other plea agreements have different terms with
different limitations. Id.For example, it cited a case where the plea agreement stated, ā[T]he state agrees not to bring any further charges against this defendant, with regard to any of the items that were seized or information that was received as a result of the execution of these two search warrants.āāId.
(quoting State v. Burson,698 S.W.2d 557, 560
(Mo. App. E.D. 1985) (emphasis in original)).
The appellate court concluded that ā[t]here was no promise or misrepresentation
governing the right of the state to file additional charges.ā Id. at 859. āThe issue was not
4
misrepresented because it was not represented at all.ā Id. (internal quotation marks
omitted). āBy its unambiguous terms the plea agreement did not bar the state from filing
the instant charge of selling marijuana.ā Id.
In State v. Banks, 259 S.W.3d 49, 51(Mo. App. W.D. 2008), the defendant agreed to a plea bargain on charges from three separate rape and burglary cases. At the 1991 plea hearing, āthe prosecutor informed the court that Banks had been a suspect in two other rape cases for which the State had declined to file charges as a result of the plea bargain.āId.
āThe prosecutor explained that some of the Stateās evidence would not have been admissible at trial due to the misconduct of a police detective, Ashley Hurn, in investigating a series of rape cases in the Westport area during 1990.āId.
The prosecutor summarized
the plea bargain as follows:
Additionally, the State promises not to file any other cases for which Mr.
Banks may have been a suspect in this series of offenses. The State has been
provided with only two police files regarding additional cases. So for the
record, I will state that as a result of the plea today the State will decline
charges in the police file number 90ā007936 and 90ā035634. Should there
be any other cases brought to our attention, again, pursuant to this series of
offenses, they will not be filed upon by our office as a result of this plea
bargain.
Id.The court accepted the plea bargain.Id.
In May 2004, the defendant was charged with forcible rape and sodomy based on
DNA testing from a 1986 sexual assault. Id.The defendant moved to dismiss the charges based on the 1991 plea agreement.Id.
āHe argued that, in exchange for his guilty plea,
the State had agreed to waive prosecution of any other crimes he committed prior to the
5
plea.ā Id.āBecause the offenses under investigation by Hurn all occurred during 1990, the court concluded that the 1986 rape and sodomy of T.T. was not in the āseries of offensesā waived by the plea agreement.āId. at 52
. This court affirmed, finding that, ā[i]n limiting the Stateās promise to āthis series of offenses,ā the prosecutor was referring to the police departmentās investigation of several rapes that occurred in the Westport area during 1990.āId.
āBecause the State plainly limited its waiver to those cases where Banks was a known suspect in 1991, it was not barred from charging him with additional crimes for which the police later learned of Banksā involvement.āId.
These cases show that a DPAās scope can vary widely. Had the intention in this
case been to prevent the filing of all possible charges stemming from the events of
November 19, 2018, the contract easily could have stated that.1 It did not. That this
particular DPAās scope was narrow does not have broad negative implications for all plea
bargains in this State.
Further, this case is not concerning or unusual because it involves disposing of
related crimes in separate cases. āA prosecutor has broad discretion whether to prosecute
ā a decision seldom subject to judicial review.ā State v. Gardner, 8 S.W.3d 66, 70(Mo. banc 1999). āA prosecutor does not have to file all possible charges in an initial indictment.āId.
āA prosecutor may hold some charges in abeyance, for strategic use.āId.
1
The DPA at issue in this case was modified by the parties. Two separate paragraphs were struck and
initialed by the parties. Moreover, this DPA is atypical because it creates the unusual order of events where the
defendant pleads, is sentenced, and then testifies as opposed to testifying, pleading, and being sentenced. This is
evidence the terms of the contract were carefully parsed by the parties.
6
Ashe v. Swenson, 397 U.S. 436(1970) involved six poker players who were robbed. The defendant was charged as one of the robbers with respect to one of the six victims.Id. at 437
. The only issue at trial was whether the defendant was one of the robbers.Id. at 439
. The jury found him not guilty.Id.
The defendant was then charged as one of the robbers with respect to a different one of the six victims.Id. at 439-40
. The Supreme Court held that the subsequent prosecution was barred by collateral estoppel.Id. at 445
. A final judgment had already determined that the defendant was not one of the robbers and that finding was binding.Id.
In the current case, issues of double jeopardy and collateral
estoppel are not implicated.
In Ashe, a minority of the United State Supreme Court indicated they would require
āthe prosecution ā¦ to join at one trial all the charges against a defendant which grow out
of a single criminal act, occurrence, episode, or transaction.ā Id. at 453-54. The majority of the court refused to adopt such a test as a matter of constitutional law.Id. at 446
; Wayne
R. LaFave, et al., Criminal Procedure, Section 17.4(c) (4th ed. Nov. 2021 update). Several
states have adopted that standard as matter of local law, however. Wayne R. LaFave, et
al., Criminal Procedure, Section 17.4(c) (4th ed. Nov. 2021 update).
āMost jurisdictions do not have compulsory joinder provisions.ā Wayne R. LaFave,
et al., Criminal Procedure, Section 16.1(f) (4th ed. Nov. 2021 update). āA substantial
minority group of states, however, do impose a mandatory joinder requirement by statute,
court rule, or judicial decision.ā Id.āAlmost all of these jurisdictions require joinder of offenses arising out of the same ātransactionā or ācriminal episode.āāId.
The idea of
7
requiring all crimes arising from the same series of events to be charged at the same time
has been criticized.
The absurdity of the āsame transactionā standard can be easily illustrated.
Assume that one breaks and enters a building to commit larceny of an
automobile, does thereafter in fact steal the automobile and drive away,
killing the night watchman in the process, and two blocks away runs a red
light which brings about his arrest by the municipal police. Could it be said
with any logic that a plea of guilty to breaking and entering would bar a
subsequent prosecution for murder? If so, presumably a plea of guilty to the
traffic offense would likewise, since all arise out of the āsame transaction.ā
Wayne R. LaFave, et al., Criminal Procedure, Section 17.4(c) (4th ed. Nov. 2021 update)
(quoting State v. Conrad, 243 So.2d 174 (Fla. App. 1971)).
Missouri is in the majority of jurisdictions that does not have a compulsory joinder
provision. Rule 23.05 states:
All offenses that are of the same or similar character or based on two or more
acts that are part of the same transaction or on two or more acts or
transactions that are connected or that constitute parts of a common scheme
or plan may be charged in the same indictment or information in separate
counts.
(Emphasis added); see also State v. McCrary, 621 S.W.2d 266, 271 (Mo. banc 1981)
(discussing a prior version of the rule and stating that the rule āpermitted, but did not
require, the joinder of offenses ā¦ in the same indictment or information when the offenses
charged were based: (1) on the same act ; (2) on the same transaction; or (3) on a common
scheme or planā) (emphasis added). The prosecutor in the current case was permitted to
bring charges related to the events of November 19, 2018 in different cases at different
times.
8
Finally, I find it telling that all parties agreed that the DPA only applied to the
enumerated charges of murder and robbery until the case was appealed to this court. Harris
was initially charged in April 2019 with first degree robbery of a handgun. He entered into
the DPA and pled guilty to stealing marijuana. He was charged in December 2019 with
felony murder and robbery with respect to a handgun and marijuana. Harris was also
charged with delivery of a controlled substance, unlawful possession of a firearm, and
tampering with physical evidence. All of those charges stemmed from alleged behavior on
or about November 19, 2018.
In its motion to dismiss the December 2019 indictment, Harris asked the court to
dismiss the indictment. Harris he stated that, pursuant to the DPA, āthe state agreed to
voluntarily dismiss and defer the felony murder and robbery charges and recommend a
five-year sentence on the felony stealing charge.ā He asserted that the new indictment was
āclearly a breach of the stateās obligations pursuant to the DPA.ā Harris also argued that
the indictment violated double jeopardy because he pled guilty to stealing which was a
lesser included offense of the new charge of robbery. When arguing its motion to dismiss,
counsel for Harris stated:
Effectively, Your Honor, Mr. Harris participated in a deferred
prosecution agreement that specifies charges of felony murder and robbery
first will be dismissed. It is our position he upheld his end of the bargain and
now he stands indicted once again for those same charges and that that joint
supersedeas indictment that was filed December 17, 2019, charges him again
with the crimes that were a result in May of 2019. That is the substance of
the motion. That is why weāre here today. It is incumbent upon the State to
abide by such agreement, as my client has, and dismiss those counts.
9
As to the remaining accounts in the current indictment, Judge, Count
VII through X, those apply also to Mr. Harris, those arise out of the same
facts and circumstances that the initial charges resulted from. They were not
charged at that time and we understand that. However, it is my position that,
as a matter of fundamental fairness, these counts were resolved as well. It
would be no different if the State, as far as a plea agreement, dismissed a
count of stealing only to re-indict on receiving stolen property and say, well,
that is not the same charges to dismiss so we can go forward. We have
executed an agreement. Mr. Harris stood by his end and the State ought to
be obligated to uphold it.
This exchange makes clear that Harris did not argue that all the new charges should be
dismissed because they were barred by the contractual terms of the DPA. Instead, he
argued that the felony murder and robbery charges were barred by the DPA and the other
charges should be dismissed based on āfundamental fairness.ā
The trial court found that the āagreement was to avoid all risk of trial for the charges
of Felony Murder and Robbery 1stā and that the āState must prove up the breach before it
may proceed against Harris on charges of Felony Murder and Robbery 1st under the terms
of the Deferred Prosecution Agreement.ā The trial court also found that āthe clear terms
of the agreement only refer[] to charges of Felony Murder and Robbery 1stā as opposed to
referring to āall risk of any trial for any charges stemming from the events of November
19, 2018.ā This finding is clearly supported by paragraphs 1 and 3 read together of the
DPA as set forth above.
The trial court found that Harris had not violated the terms of the DPA. Thus, it
dismissed the charges of felony murder and robbery because those charges were barred by
the DPA. However, the court allowed the charges of delivery of a controlled substance,
10
unlawful possession of a firearm, and tampering with physical evidence to proceed even
though those charges arose from the events of November 19, 2018 because the DPA only
barred charges for murder and robbery. With respect to the charge of armed criminal action,
the court permitted the charge based on distribution of a controlled substance but dismissed
it based on robbery.
The State filed a new indictment in June 2021. This indictment charged Harris with
felony murder, accessory robbery, accessory delivery of a controlled substance, armed
criminal action, unlawful possession of a firearm, and accessory tampering with physical
evidence. All of these charges stemmed from the events of November 19, 2018.
Harris filed a motion to dismiss the charges of felony murder, robbery, and armed
criminal action. Notably, Harris did not ask the trial court to dismiss any of the other
pending charges. The armed criminal action charge was premised on robbery and
distribution of a controlled substance. In asking for that charge to be dismissed, Harris
only asked that it be dismissed āto the extent ACA is predicated on robbery in the first
degree.ā Harris did not ask for the armed criminal action premised on distribution of a
controlled substance to be dismissed. Harris did not argue that the DPA barred all charges
stemming from the events of November 19, 2018.
In its judgment, the one currently being appealed, the trial court found that Harris
did not violate this DPA. It again dismissed the felony murder and robbery charges. It also
dismissed the armed criminal action charge based on robbery. The other charges are still
pending against Harris. The Respondentās brief filed with this court is the first time I find
11
in the record that any party has argued that the DPA applied to more than the enumerated
charges of murder and robbery.
The parties voluntarily entered into the contract and, therefore, should be bound by
its terms. The DPA explicitly applies to the enumerated charges of murder and robbery and
to the enumerated case which consisted of only those two charges. It is not ambiguous.
No party has believed it is ambiguous until the case came before this court. Although it
easily could have been drafted to include all charges, as written and agreed upon it does
not apply to all charges related to the events of November 19, 2018. I would find that the
trial court erred in dismissing Count VIII.
Anthony Rex Gabbert, Judge
12