Motion to ‘nolle prosequi’ indictments properly granted

Where the court granted the prosecution’s motion to nolle prosequi three grand jury indictments, and appellant was indicted on the same charges later in the same day, the court did not err by granting the motion.

“[T]here was no evidence in the record of prosecutorial vindictiveness or prejudice to” appellant.

Overview

“A jury found Adam Marcus Griffin guilty of first-degree murder, use of a firearm in the commission of a felony, possession of a firearm by a convicted felon, and solicitation of murder.

“On appeal, Griffin argues that the trial court erred by granting the Commonwealth’s motion to nolle prosequi his prior indictments ‘without a sufficient showing of good cause’ and by allowing the Commonwealth to reinstitute the charges.

“Griffin also argues that the trial court erred by denying his motion to dismiss the solicitation of murder charge based on lack of venue.”

Background

“A multi-jurisdictional grand jury (MJGJ) indicted Griffin on the charges of first-degree murder, use of a firearm in the commission of a felony, and possession of a firearm by a violent convicted felon.

“Griffin was separately indicted by a Winchester grand jury on the charge of solicitation of murder.

“Griffin moved the Circuit Court of the City of Winchester to dismiss the three MJGJ indictments without prejudice, asserting that the MJGJ ‘that handed down the indictments lacked impartiality, and there is grave doubt that the decision to indict was free from influences that rendered the MJGJ impartial.’

“The trial court denied Griffin’s motion, but it allowed Griffin to ‘file under seal any documents or written proffers relevant to their motion to preserve the issues for a possible appeal.’

“The Commonwealth then moved to nolle prosequi the three MJGJ indictments. Although the Commonwealth ‘adamantly denies that anything improper occurred during the MJGJ proceedings and asserts that the indictments were supported by probable cause arising solely from sworn testimony,’ it moved to nolle prosequi the three MJGJ indictments ‘in an abundance of caution.’

“The Commonwealth noted that a nolle prosequi would provide Griffin the relief he sought in his motion to dismiss — dismissal of the three MJGJ indictments.

“In addition, the Commonwealth emphasized that Griffin would not be prejudiced by the motion to nolle prosequi because he was being held without bond on the solicitation of murder charge that had been handed down separately by the Winchester grand jury.

“The trial court granted the Commonwealth’s motion and noted Griffin’s objection.

“The Commonwealth indicated that it would seek new indictments for the same three charges from a different grand jury that same day, thereby enabling the parties to keep their previously set trial dates.

“Later that same day, a Winchester grand jury indicted Griffin on the same three charges that had been nolle prosequied.

“Griffin then moved to dismiss the new charges on the grounds that the earlier charges had been ‘improperly dismissed by Order of nolle prosequi in violation of his due process as guaranteed by the 14th Amendment to the US Constitution.’

“Griffin asserted that ‘the nolle prosequi Order deprived Defendant of the benefit of getting credit for the time that he had served on these charges’ and that the trial court ‘in granting the Motion for nolle prosequi implicitly advised the Defendant that he could only avoid suffering an Order of nolle prosequi if he withdrew his objections to the Motion to Dismiss.’

“The trial court denied Griffin’s motion, noting that the new charges were identical to the charges that had been nolle prosequied. The trial court also found that, under a recent amendment to Code § 53.1-187, Griffin would receive credit for the time he had served awaiting trial on the original charges.”

After a trial, “the jury convicted Griffin of first-degree murder, use of a firearm in the commission of a felony, possession of a firearm by a felon, and solicitation of murder.”

He appeals.

‘Nolle prosequi’

Griffin argues that the trial court incorrectly granted the motion to nolle prosequi “without a sufficient showing of good cause, and by allowing the superseding charges … to proceed to trial.’ …

“The Supreme Court has stated, ‘[T]he granting of a motion for nolle prosequi will only be overturned if there is clear evidence that the decision to grant the motion was not judicially sound.’ …

“This Court has ‘noted the presumption that a trial court has properly followed the law’ and has “declined to hold that a subsequent prosecution was absolutely barred merely because the record did not reflect any affirmative finding of “good cause” for an earlier nolle prosequi of the same charges.’ …

“Despite Griffin’s claim of prejudice, the Commonwealth’s decision to nolle prosequi the three MJGJ indictments provided Griffin the very relief he had sought in his motion to dismiss — dismissal of the original charges without prejudice.

“Furthermore, Griffin served no additional time in jail awaiting trial because the Commonwealth obtained new indictments on the same charges the same day that it nolle prosequied the original charges, and the parties retained their previously continued trial dates.

“Consequently, for all of these reasons, the trial court did not err by granting the Commonwealth’s motion to nolle prosequi the three MJGJ indictments and by allowing the new charges to proceed to trial.”

Venue

Griffin argues that the solicitation charge should have been dismissed for lack of venue. “Griffin contends that ‘any alleged solicitation committed by Appellant occurred in Frederick County and therefore venue was not proper in Winchester.’ …

“[T]he evidence was sufficient to create a strong presumption that the solicitation offense began in the jail in Frederick County and then continued in the City of Winchester. The evidence established that Griffin’s solicitation of Richards to murder Carter consisted of several acts that occurred over a period of time.

“After Richards dismissed Griffin’s original solicitation to kill Carter, Richards sought confirmation that Griffin was serious about his proposal.

“As Griffin and Richards were no longer housed together in the jail in Frederick County, Griffin confirmed the solicitation through an intermediary, Waller (the mother of his child), who was located in Winchester.

“The solicitation was only confirmed once Waller relayed to Richards that Griffin remained committed to his proposal to murder Carter — i.e., confirming Griffin’s intent that Richards should actually follow through with arranging for the murder of Carter, instead of their simply just talking about it.

“Therefore, the solicitation continued and was completed through Waller’s communications with Richards on Griffin’s behalf in Winchester.”

Affirmed.

Griffin v. Commonwealth, Record No. 0042-23-4, Feb. 13, 2023. CAV (published opinion) (Beales) From the City of Winchester Circuit Court (Madden). Howard J. Manheimer (Matthew Kreitzer, on brief), for appellant. Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 024-7-051, 13 pp.