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Jordan v. State (9/29/2017) ap-2570

Jordan v. State (9/29/2017) ap-2570


         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  

                                  303 K Street, Anchorage, Alaska  99501

                                             Fax:  (907) 264-0878

                                     E-mail:  corrections @



                                                                    Court of Appeals No. A-12004  

                                    Appellant,                    Trial Court No. 3AN-12-3068 CR  


                                                                            O  P  I  N  I  O  N 


                                    Appellee.                      No. 2570 - September 29, 2017  

                  Appeal  f                                       

                              rom  the  Superior  Court,   Third  Judicial  District,  


                  Anchorage, Larry D. Card, Judge.  

                  Appearances:  Megan  M.  Rowe,  Denali  Law  Group,  P.C.,  

                  Anchorage, and Michael Barber, Barber Legal Services, Boston,  


                  Massachusetts,   under   contract   with   the   Office   of   Public  


                  Advocacy, Anchorage,  for the Appellant.  Eric A. Ringsmuth,  


                  Assistant   Attorney  General,   Office   of   Criminal   Appeals,  


                  Anchorage, and Craig W. Richards, Attorney General, Juneau,  

                  for the Appellee.  

                  Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,  


                  Senior Judge.*  

                  Senior Judge COATS.  

     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

----------------------- Page 2-----------------------

                                                                        Lewis Jordan Jr. was charged with various counts of assault and controlled                                                                                                                                                                                                                                                                      

 substance misconduct.                                                                                                       At the close of the State's case-in-chief at Jordan's trial, the                                                                                                                                                                                                                                                               

prosecutor announced that the State wished to dismiss one of the assault charges with                                                                                                                                                                                                                                                                                                                                                                

prejudice (because the State was unable to locate two crucial witnesses).                                                                                                                                                                                                                                                                                                                                                Jordan's  

 attorney stated that he did not oppose the State's dismissal of the charge, and the charge                                                                                                                                                                                                                                                                                                                                               

was dismissed.                                                                     

                                                                        Jordan now argues that it was plain error for the judge to allow the State to                                                                                                                                                                                                                                                                                                              

dismiss this assault charge without Jordan's personal consent, and he claims that this                                                                                                                                                                                                                                                                                                                                                                   

 error  prejudiced   him   because   it   affected   the   jury's   deliberations   on   the   remaining  


                                                                       For the reasons explained in this opinion, we conclude that a defendant's                                                                                                                                                                                                                                                        

personal consent is not required when the State dismisses a charge with prejudice.                                                                                                                                                                                                                                                                                                                                                                   The  

trial judge committed no error, and we therefore affirm Jordan's convictions.                                                                                                                                                                                                                                                                                                                                                  

                                   Background facts and proceedings                                                                                         

                                                                       Anchorage police officers arrested Jordan for assaulting a woman, P.S. In                                                                                                                                                                                                                                                                                                                 

the course of the arrest and the ensuing pat-down search of Jordan's person, the officers                                                                                                                                                                                                                                                                                                                                            

discovered drugs.                                                                                  When the police found the drugs, Jordan became agitated and he                                                                                                                                                                                                                                                                                               

 started fighting with the officers.                                                                                                                                            The officers wrestled with Jordan for several minutes                                                                                                                                                                                              

before they were able to restrain him.                                                                                                                                         

                                                                        Based on this episode, Jordan was charged with several crimes, including                                                                                                                                                                                                                                                                           

 one charge of fourth-degree assault against P.S., based on the events that took place                                                                                                                                                                                                                                                                                                                                                          

before the officers arrived.                                                                                                                    1  

                   1                The  other   charges  were  fourth-degree  controlled  substance  misconduct  (former

AS  11.71.040(a)(3)(A))  (pre-2016  version);  fourth-degree  assault  (AS  11.41.230(a)(1)); 


                                                                                                                                                                                                                           - 2 -                                                                                                                                                                                                                  2570

----------------------- Page 3-----------------------

                                        At the close of the State's case-in-chief, the prosecutor announced that the                                                                                                                                     

State intended to dismiss the assault charge involving P.S. because the State had been                                                                                                                                                             

unable to locate the two witnesses it needed to prove this charge:                                                                                                          


                                                           Prosecutor :   Your Honor, the State is prepared to rest                                                                                            

                                        its case. But before doing so, I'd like to explain that we were                                                                                                     

                                        unable   to   locate   [a   witness   at   the   apartment   building]  

                                        although [we served him with a] subpoena.                                                                                           We were [also                  

                                        unable] to locate [P.S.]                                              Based on that, the State will dismiss                                                 

                                        Count III, assault in the fourth degree against [P.S.]                                                                                   

                                                            The Court                      :   That is Count III.                                    Any objection?   

                                                           Defense Attorney                                     :   No objection, Your Honor.                                    

                                                            The   Court:     Thank   you.     It'll   be   dismissed.     With  


                                                           Prosecutor :  [Yes], Judge.  


                                        Jordan's trial continued, and the jury found him guilty of all the remaining  


charges - i.e., the drug charge and the charges based on Jordan's fight with the officers.  


                     Why we conclude that Jordan did not have to personally consent to the  


                    State's dismissal of the assault charge with prejudice  


                                        Jordan argues that the superior court committed plain error when it allowed  


the State to dismiss the assault charge involving P.S. without obtaining Jordan's personal  


          1         (...continued)  

resisting or interfering with an arrest (AS l 1.56.700(a)(1)); and violating the conditions of  

release (former AS 11.56.757(b)(2)) (pre-2016 version).  

                                                                                                                          -  3 -                                                                                                                  2570

----------------------- Page 4-----------------------


consent.   According to Jordan, Alaska Criminal Rule 43(a)(1) requires a defendant's                                                                                                                                                                                                           

personal consent whenever the State                                                                                                         wishes to dismiss a charge after the defendant's trial                                                                                                                                

has begun.                                  

                                                    Criminal Rule 43(a)(1) declares:                                                                                                 


                                                                              The prosecuting attorney may file a dismissal of an                                                                                                                                                  

                                                    indictment, information or complaint[,] and the prosecution  

                                                    shall thereupon terminate. Such a dismissal shall not be filed                                                                                                                                                         

                                                    during the trial without the consent of the defendant.                                                                                                              

Jordan argues that, because the dismissal of the assault charge occurred in the middle of                                                                                                                                                                                                                                                

his trial, the dismissal could not occur "without the consent of the defendant" - which                                                                                                                                                                                                                                  

Jordan interprets to mean his                                                                                       personal  consent rather than the consent of his defense                                                                                                                                      


                                                    But   our   research  shows   that   Criminal   Rule   43(a)(1)   is   addressed   to  

dismissals  without prejudice                                                                                  - that is, dismissals that leave the State free to reprosecute                                                                                                                       

the charge.                                   

                                                    Alaska's Criminal Rule                                                                     43(a) is drawn fromthe corresponding                                                                                                                federal rule,  

Federal Criminal Rule 48(a).                                                                                       That federal rule provides:                                          


                                                                              The government may, with leave of court, dismiss an                                                                                                                                                   

                                                    indictment, information, or complaint. The government may                                                                                                                                                                

                                                    not    dismiss    the    prosecution    during    trial    without    the  

                                                    defendant's consent.                                                              

             2            See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (to establish plain error, the           

defendant must show that the error "(1) was not the result of intelligent waiver or a tactical   

decision  not  to  object;  (2)  was  obvious;  (3)  affected  substantial  rights;  and   (4)  was  


                                                                                                                                                                - 4 -                                                                                                                                                        2570

----------------------- Page 5-----------------------

                        As explained in Wright and Henning's                                    Federal Practice and Procedure                               ,  

even   though   Federal   Criminal   Rule   48(a)   seemingly   applies   to   any   dismissal   of   a  

criminal charge, the rule is actually addressed solely to instances where the government                                                 



files a notice of           nolle prosequi             -  i.e., a dismissal without prejudice.                              The purpose of the  


second sentence of Federal Criminal Rule 48(a), which requires the defendant's consent  


to any mid-trial nolle prosequi, is to protect the defendant against double jeopardy and  


to  prevent  the  government  from  engaging  in  the  harassing  tactic  of  charging  the  



defendant, dismissing the charge, and then re-filing the charge. 


                        Under federal case law, if a court erroneously allows the government to  


nolle prosequi a criminal charge without the defendant's consent after the jury is sworn  


at the defendant's trial, the remedy is to convert the dismissal into a dismissal with  



prejudice.           This latter type of dismissal does not require the defendant's consent because  


the government is barred from reviving the charge.  


                        We interpret Alaska Criminal Rule 43(a) as codifying the same principle  


as the federal rule.  That is, Criminal Rule 43(a) bars the State from dismissing a charge  


without  prejudice  after  the  jury  has  been  sworn  at  the  defendant's  trial  unless  the  


defendant consents.  


                        In Jordan's case, the prosecutor was not trying to nolle prosequi the assault  


charge involving P.S. - i.e., not trying to dismiss the charge in such a way as to leave  

      3     Charles Alan Wright and Peter J. Henning, Federal Practice and Procedure: Criminal   

(4th ed. 2013),  801, Vol. 3B, pp. 324-29; see Advisory Committee Notes to Fed. R. Crim.   

P. 48(a); Spriggs v. United States, 225 F.2d 865, 867-68 (9th Cir. 1955).  

      4     See Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977).  



            See State v. Storer, 368 S.W.3d 293, 296 (Mo. App. 2012) (if the defendant does not  


consent to a dismissal without prejudice during trial, then the remedy is that the charge is  

dismissed with prejudice).  

                                                                           -  5 -                                                                    2570

----------------------- Page 6-----------------------

the State free to pursue the charge later. Rather, the prosecutor announced that the State  


would dismiss this charge with prejudice.  In other words, there was no possibility that  


Jordan could be tried and convicted of this charge later.  


                    Criminal  Rule  43(a)  does  not  require  the  defendant's  consent  in  this  


circumstance.  We therefore find no error in the trial court's handling of this matter.  


                    Because we hold that Criminal Rule 43(a) does not apply to dismissals with  


prejudice, we need not decide whether the rule requires a defendant's personal consent  


(as opposed to their attorney's consent) when the State wishes to nolle prosequi a charge  


after the jury has been sworn.  



                    We AFFIRM the judgment of the superior court.  


                                                              -  6 -                                                        2570

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