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Date: 12-13-2022

Case Style:

State of Missouri v. Semaj Harris

Case Number: WD84640

Judge: Gary D. Witt

Court: Court of Appeals of Missouri, Western District, Third Division on appeal from the Circuit Court, Cole County

Plaintiff's Attorney: Cole County Missouri District Attorney's Office

Defendant's Attorney:

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Description: Jefferson City, Missouri criminal law lawyer represented Defendant charged with felony murder.

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         1. Semaj Harris was charged with felony murder in the second degree and first-degree robbery pertaining to a robbery and subsequent shooting death for events occurring on November 19, 2018. On May 10, 2019 the State and Harris entered into a deferred prosecution agreement (DPA) under which Harris would plead guilty to the class D felony of accessory to stealing of a controlled substance and receive a sentence of five years in the department of corrections. Prosecution for the charges of felony murder in the second degree and first-degree robbery would be deferred for a period of five years and Harris would testify truthfully against two co-defendants. Pursuant to the plea agreement Harris plead guilty to the charge of stealing and was sentenced to serve five years in prison and the remaining charges were dismissed without prejudice.

         2. In December of 2019, the State filed an indictment against Harris for events arising on November 19, 2018 and which gave rise to the DPA, charging Harris with Felony murder in the second-degree, robbery in the first-degree for stealing marijuana and a handgun, delivery of a controlled substance, armed criminal action based on the robbery in the first-degree and distribution of a controlled substance, unlawful possession of a firearm and tampering with physical evidence. Harris filed a motion to dismiss the charges alleging that their filing breached the DPA and double jeopardy because the


stealing charge of which he had already plead guilty and served prison time was a lesser included offense of the robbery charge with respect to the stealing of marijuana. The State argued that Harris had violated the DPA by lying under oath in a deposition taken by a co-defendant. Following an evidentiary hearing the trial court found that the State had failed to prove that Harris had violated the DPA and on May 25, 2021, the trial court granted Harris's motion to dismiss the charges of felony murder, first-degree robbery, and armed criminal action.

         3. On June 16, 2021, the State filed a new indictment against Harris for the events of November 19, 2018, which gave rise to the DPA. The indictment alleged Harris committed the offenses of felony murder in the second degree; accessory robbery in first degree of a handgun; accessory delivery of a controlled substance; armed criminal action based on robbery in first degree and distribution of a controlled substance; unlawful possession of a firearm; accessory tampering with physical evidence; and unlawful use of a weapon. Again, Harris filed a motion to dismiss the charges. An evidentiary hearing was held and the trial court again found that the State had failed to establish that Harris had breached the DPA. The trial court dismissed the charges of felony murder, felony stealing of a handgun and robbery first for stealing the handgun, as well as the charge of armed criminal action based upon the robbery charge with prejudice. The State brings this interlocutory appeal challenging the trial courts dismissal of these charges.

         4. The trial court appears to have dismissed the counts of felony murder and robbery 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. Courts have an inherent power to sanction in order to preserve their existence, control their dockets, and protect the orderly administration of business; this includes the power to impose the sanction of dismissal with prejudice or judgment. State ex rel. Jackson Cty. Prosecuting Attorney v. Prokes, 363 S.W.3d 71, 83 (Mo. App. W.D. 2011); Hale v. Cottrell, Inc., 456 S.W.3d 481, 488 (Mo. App. W.D. 2014). However, the dismissal with prejudice would effectively release Harris from his contractual obligations under the DPA prematurely, before its expiration. As such, the dismissal with prejudice of counts V and VI was improper.

         5. The trial court dismissed the count of armed criminal action based on first-degree robbery because it found that double jeopardy precluded Harris's being charged with armed criminal action based on first-degree robbery when he had already pleaded guilty to the underlying offense and had served his sentence. While we disagree that double jeopardy precludes charging Harris with armed criminal action, we find that the DPA was, at least, ambiguous as to whether the State agreed, so long as Harris complied with the DPA, not to prosecute felony murder and first-degree robbery or whether it agreed that Harris would face no other charges arising out of the November 2018 criminal episode. The policy preference for disposing of all offenses arising out of the same transaction together, grounded in the principles of claim preclusion and double


jeopardy, coupled with the DPA's requirement that Harris testify truthfully against the co-defendants but still allow the State to use that truthful testimony under the DPA against Harris to prosecute these other offenses if we accepted the State's interpretation render the agreement ambiguous. The trial court found that "Harris bargained that such a sentence would be the sole consequence of his conduct" during the criminal episode, and we find this understanding to be reasonable. Ambiguities in plea agreements are construed against the government, which has the greater responsibility in drafting such agreements. See, e.g., United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986). 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. The DPA did not unambiguously state that it left additional charges from the criminal episode available for future prosecution. Accordingly, the dismissal of Count VIII with prejudice was proper.

         Dissenting Opinion

Anthony Rex Gabbert, Judge

Judge Gabbert's Dissenting Opinion states:

         As to Point II, the DPA discusses its scope multiple times. Specifically, it refers to "the felonies of Felony Murder and Robbery 1st," "all charges enumerated above," "[t]he counts … mentioned above," "the counts enumerated above," and "the case enumerated above." It does not state it applies to all possible charges stemming from a single event. It does not state it applies to all possible charges from actions that occurred on a specific date. Though it easily could have been broader, the DPA is limited to the two enumerated charges.

         This conclusion is supported by Missouri being one of a majority of states that does not have mandatory joinder. Charges arising from the same event or at the same time do not have to be filed together. Thus, the DPA being limited to two enumerated charges is consistent with the State's actions in charging additional crimes arising from the same event. Moreover, the conclusion is supported by the fact that the defendant never argued that the DPA applied to more than the two enumerated charges until the case came before this court. Throughout the case's history in front of the trial court, the defendant has agreed that the DPA was limited in scope.
State v. Harris (Mo. App. 2022)

Outcome: Affirmed in part, reversed in part and remanded.

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