Klopper v. State of North Carolina Petition for a Writ of Certiorari

    In the

Supreme Court of the United States

O ctober  T er m , 1965

Pe t e r  H. K lo p fe r , Petitioner 

v.

Sta te  of N orth C arolina , Respondent

P E T IT IO N  FO R A W R IT OF C ER TIO R A R I TO  T H E  
SUPREM E C O U R T OF N O R TH  CAROLINA

W ade H. Pen n y , J r .
Counsel For Petitioner 
P. O. Box 522
Durham, North Carolina 27702



IN D EX

Page
Citation to Opinion Below .............................................................. 2
Jurisdiction.........................................................................................  2

Question Presented ...........................................................................  2
Constitutional Provisions Involved ................................................ 2
Statement of Case .............................................................................  3

— How Federal Question Is Presented ..................................  4
Reasons for Granting the Writ ...................................................... 5
Conclusion ......................................................................................... 11
Appendix A — Opinion and Judgment Below ............................  12

Citations

Cases:

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758....................  7
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792................... 7
Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384......... 3-4
State v. Furmage, 250 N.C. 616, 109 S.E. 2d 563 (1959)........... 6
State v. Williams, 151 N.C. 660, 65 S.E. 908 (1909)................  6
United States v. Ewell, .....U.S...... , 86 S.Ct. 773...................7, 8-9
United States v. Simmons, 338 F. 2d 804 (2nd Cir. 1964)..... 8
Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740 (1912).... 6

Statutes:

N.C. Gen. Stat. 15-1 ...................................................................  6
N.C. Gen. Stat. 14-134..................................................................3,6



In the

Supreme Court of the United States

O cto ber  T e r m , 1965

Pet er  H. K l o p fe r , Petitioner

v.

Sta te  of N orth  C arolina , Respondent

Petition For A Writ Of Certiorari T o  The 
Supreme Court Of North Carolina

Peter H. Klopfer, your petitioner, prays that a writ of 
certiorari issue to review the judgment of the Supreme 
Court of the State of North Carolina entered in the case of 
State of North Carolina v. Peter Klopfer on January 14, 
1966.

1



2

C IT A T IO N  T O  OPINION BELOW
The opinion of the Supreme Court of North Carolina, 

printed in Appendix A hereto, infra, p.p. 12-14, is reported 
in 266 N. C. 349, 145 S. E. 2d 909 (1966).

JU R ISD IC TIO N
The judgment of the Supreme Court of North Carolina 

was entered on January 14, 1966, as printed in Appendix 
A, infra, p. 15. The jurisdiction of this Court is invoked 
under 28 U. S. Code, Section 1257 (3).

Q U ESTIO N  PRESEN TED
In a State criminal prosecution, does the State deny to 

the accused the Constitutional right to a fair and speedy 
trial by procedurally suspending the prosecution indefinite­
ly over the objection of the accused and without showing 
any justification for suspending the prosecution indefi­
nitely?

C O N ST ITU T IO N A L PROVISIONS INVOLVED
The Constitutional provisions involved are:
(1.) Sixth Amendment to the United States Consti­

tution
“ In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wherein 
the crime shall have been committed, which dis­
trict shall have been previously ascertained by 
law, and to be informed of the nature and cause 
of the accusation; to be confronted with the wit­
nesses against him; to have compulsory process 
for obtaining witnesses in his favor, and to have 
the Assistance of Counsel for his defense.”



3

(2.) Fourteenth A m endm ent to the United States 
Constitution
“Section 1. All persons born or naturalized in the 
United States, and subject to the ju r isd ic t io n  
thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make 
or enforce any law which shall abridge the privi­
leges or immunities of citizens of the United 
States; nor shall any State deprive any person of 
life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction 
the equal protection of the laws.”

STA TE M E N T  OF CASE

On Monday, February 24, 1964, the Grand Jury for 
the County of Orange, State of North Carolina returned 
a Bill of Indictment charging the petitioner, Peter H. 
Klopfer, with the criminal offense of trespass in violation 
of N. C. Gen. Stat. 14-134. (R. 5-6.)

Klopfer entered a plea of “ Not Guilty” and was placed 
on trial in the Superior Court of Orange County in March, 
1964. The jury could not agree upon a verdict and a mis­
trial was declared with Klopfer being directed to reappear 
in court for trial on the following Monday. However, 
Klopfer’s case was not retried at that session of court. 
(R. 3-4, 6.)

Several weeks prior to the April 1965 Criminal Session 
of the Superior Court of Orange County, the Solicitor in­
dicated to Klopfer’s attorney his intention to have a nolle 
prosequi with leave entered in Klopfer’s case. At the April 
1965 Criminal Session, Klopfer through his attorney in 
open court opposed the entry of a nolle prosequi with leave. 
The defendant’s contention at that time was that the tres­
pass charge was abated on the authority of Hamm  v. City



4

of Rock Hill 379 U. S. 306, 85 S. Ct. 384, 13 L. Ed. 2d 300 
(1964). The Court indicated it approved the entry of a 
nolle prosequi with leave in Klopfer’s case. The Solicitor 
then stated he did not desire to take a nolle prosequi with 
leave in Klopfer’s case and would retain the case in its trial 
docket status. Klopfer’s case was continued for the term 
at that time. (R. 6-7.)

The trial calendar for the August 1965 Criminal Ses­
sion of Orange County Superior Court did not list Klopfer’s 
case for trial. T o  ascertain the trial status of Klopfer’s case, 
a motion was filed expressing his desire to have the trespass 
charge pending against him permanently concluded as soon 
as reasonably possible. The motion requested the Court 
to inquire into the trial status of the charge pending against 
Klopfer and to ascertain when his case would be brought 
to trial. (R. 7-10.)

The motion filed in Klopfer’s case also set forth the 
grounds for Klopfer’s contention that further prosecution 
of the trespass charge was barred by the retroactive appli­
cation of the 1964 Federal Civil Rights Act on the author­
ity of Hamm  v. City of Rock Hill, supra. (R. 8-9.)

In response to the foregoing motion, the status of Klop­
fer’s case was considered in open court on Monday, August 
9, 1965, at the August 1965 Criminal Session of Orange 
County Superior Court. The Solicitor then moved the 
Court that the State be allowed to take a nolle prosequi 
with leave in Klopfer’s case. The motion was allowed by 
the Court. (R. 10.)

How Federal Question Is Presented

The petitioner first invoked the Constitutional right 
to a fair and speedy trial by his motion that his case be 
concluded permanently as soon as reasonably possible. 
(R. 7-10.) The Court’s response to the motion was to per­



5

mit the entry of a nolle prosequi with leave, to which the 
petitioner timely excepted. (R. 10.)

The issue involving the Constitutional right to a fair 
and speedy trial was brought forward on appeal by the 
petitioner and decided by the Supreme Court of North 
Carolina on the basis of the exception and an assignment 
of error specifically embodying the issue. (R. 10-11.)

The Supreme Court of North Carolina decided the 
Constitutional issue adversely to the petitioner as follows:

“The appellant challenged the right of the solicitor, 
even with the approval of the judge, to enter a nolle prose­
qui with leave in the criminal prosecution pending against 
him in the Superior Court. . . . The reason assigned is that 
the procedure denies him his constitutional right of a 
speedy trial.”

Appendix A, infra, p. 13

“Without question a defendant has the right to a 
speedy trial, if there is to be a trial. However, we do not 
understand the defendant has the right to compel the State 
to prosecute him if the State’s prosecutor, in his discretion 
and with the court’s approval, elects to take a nolle prose­
qui.”

Appendix A, infra, p. 14

REASONS FOR G R A N T IN G  T H E  W RIT
1. The decision of the North Carolina Supreme Court 

in State v. Klopfer (Appendix A, infra, p.p. 12-14) permits 
the State, by utilization of the procedural device of a nolle 
prosequi with leave, to circumvent the accused’s Sixth 
Amendment guarantee of a speedy trial as made applicable 
to the State by the Fourteenth Amendment.

In North Carolina the entry of a nolle prosequi with 
leave in a pending criminal prosecution is customarily left



6

to the initiative and discretion of the Solicitor, subject to 
the control of the court. State v. Furmage, 250 N.C. 616, 
109 S.E. 2d 563 (1959). The effect of a nolle prosequi 
with leave is to discharge the defendant from his bond and 
from attending court. The defendant is free to go any­
where he chooses without posting a bond to appear in court 
at any future time. A nolle prosequi with leave is not an 
acquittal. At any time after the entry of a nolle prosequi 
with leave, the defendant may be indicted again for the 
same offense or the Solicitor, without the necessity of seek­
ing the court’s approval, may have the Clerk issue a capias 
for the defendant and try him on the original indictment. 
In effect, a nolle prosequi with leave reflects the decision 
of the Solicitor that he will not “at that time” prosecute the 
suit further. Wilkinson v. Wilkinson, 159 N.C. 265, 74 
S.E. 740 (1912).

North Carolina Gen. Stat. 15-1 provides for a two-year 
statute of limitations within which to institute criminal 
prosecution for a general misdemeanor. The offense of 
trespass with which Klopfer was charged under N. C. Gen. 
Stat. 14-134 is a general misdemeanor. The return of a 
bill of indictment charging a misdemeanor arrests the 
running of the statute of limitations. Of particular rele­
vance to the Klopfer case is the rule in North Carolina that 
entry of a nolle prosequi with leave does not start the stat­
ute of limitations to running again. State v. Williams, 151 
N. C. 660, 65 S.E. 908 (1909).

As the decision in State v. Klopfer (Appendix A, infra, 
p.p. 12-14) implies, there is no statute or constitutional pro­
vision in North Carolina which requires the Solicitor to 
ever bring Klopfer’s case to trial. Equally apparent in the 
Klopfer decision is the fact that Klopfer has no means 
under North Carolina law to compel the State to give him 
his day in court.



7

The most recent pronouncement of this Court relative 
to the Sixth Amendment right to a speedy trial is in United
States v. Ewell, .....U. S........., 86 S. Ct. 773, 15 L. Ed. 2d
627 (1966), in which the scope and purpose of this Con­
stitutional right is stated as follows:

“ This guarantee is an important safeguard to prevent 
undue and oppressive incarceration prior to trial, to 
minimize anxiety and concern accompanying public 
accusation and to limit the possibilities that long delay 
will impair the ability of an accused to defend himself. 
. . . this Court has consistently been of the view that 
‘The right of a speedy trial is necessarily relative. It is 
consistent with delays and depends upon circumstances. 
It secures rights to a defendant. It does not preclude 
the rights of public justice.’ Beavers v. Haubert, 198 
U. S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950. ‘Whether 
delay in completing a prosecution amounts to an un­
constitutional deprivation of rights depends upon all 
the circumstances. . . . The delay must not be pur­
poseful or oppressive’, Pollard v. United States, 352 
U.S. 354, 361, 77 S.Ct. 481, 486, 1 L. Ed.2d 393. ‘ [T]he 
essential ingredient is orderly expedition and not mere 
speed.’ Smith v. United States, 360 U.S. 1, 10, 79 S.Ct.
991, 997, 3 L. Ed.2d 1041.” United States v. Ewell, .....
U.S...... , 86 S.Ct. 773, 776, 15 L. Ed.2d 627, 630-31
(1966).

Although the Ewell case, supra, is a federal criminal 
prosecution, the affirmative safeguards of the Sixth Amend­
ment for an accused have been made applicable to State 
criminal prosecutions by inclusion in the Fourteenth 
Amendment. Gideon v. Wainwright, 372 U. S. 335, 83 
S. Ct. 792 (1963) ; Escobedo v. Illinois, 378 U. S. 478, 84 S. 
Ct. 1758 (1964). The following four factors appear to be



8

those most relevant to a consideration of whether denial 
of speedy trial to an accused has been extended beyond 
that period of time reasonably required by the State for the 
orderly administration of justice: the length of delay, the 
reason for the delay, the prejudice to the defendant and 
waiver by the defendant. United States v. Simmons, 338 
F. 2d 804 (2nd Cir. 1964).

Applying these four factors for determining the in­
fringement of the Sixth Amendment right to a speedy trial 
to the facts in the Klopfer case, it becomes apparent that 
the State of North Carolina can not claim even one of 
the four factors. As of August, 1965, when Klopfer’s mo­
tion requesting trial or dismissal of his case was denied, al­
most eighteen months had elapsed since his indictment. 
(R. 5-10) . The decision of the Supreme Court of North 
Carolina in State v. Klopfer (Appendix A, infra, p.p. 12-14) 
permits the delay of Klopfer’s trial to continue without 
limitation. At no point in the proceedings, or record 
thereof (R. 1-12), has the State of North Carolina ever 
offered any reason whatsoever for the delay in trying Klop­
fer’s case. At no point in the record of the proceeding (R. 
1-12) or in the opinion in State v. Klopfer (Appendix A, 
infra, p.p. 12-14) is there the slightest suggestion that the 
defendant has in any manner waived his right to a speedy 
trial. On the contrary, the record discloses clearly that 
Klopfer affirmatively sought the benefit of his right to a 
speedy trial in the trial court. (R. 7-10.)

The prejudice to the defendant is quite substantial. He 
has been put to the burden, anxiety and expense of one 
trial which ended in a hung jury, and has not been afforded 
another opportunity to exonerate himself. (R. 6-10.) In 
addition, Klopfer has had stripped from him the protection 
which the Sixth Amendment right to speedy trial affords 
against the “anxiety and concern accompanying public



9

accusation” and the “possibilities that long delay will im­
pair the ability of an accused to defend himself.” United 
States v. Ewell, quoted, supra.

Counsel for the petitioner has been unable to discover 
any other case in the nation, State, or Federal, in which a 
court takes the position, as the North Carolina Supreme 
Court did in the Klopfer case, that criminal prosecution 
may be instituted against an accused, and yet the accused 
may be denied forever his day in court by the arbitrary ac­
tion of the State and over the objection of the accused. The 
decision in the Klopfer case is clearly erroneous by reason 
of its blatant repudiation of the speedy trial protection 
afforded to an accused by the Sixth and Fourteenth Amend­
ments.

2. The petitioner’s case is of sufficient importance to 
justify review of the judgment on its merits for the follow­
ing reasons:

(a.) The indifference toward the plight of an accused 
in a criminal prosecution as manifested by the Supreme 
Court of North Carolina in the Klopfer decision (Ap­
pendix A, infra, p.p. 12-14) is evidence of the persistent 
and prejudicial indulgences in favor of the State and 
at the expense of the accused which pervade the ad­
ministration of criminal justice in state courts, particu­
larly in the South. In the Klopfer case, the State’s prag­
matic concern with the economics of a retrial for 
Klopfer (Appendix A, infra, p. 14) was readily 
given priority over Klopfer’s right to have the oppor­
tunity of exoneration. If the proper balance between 
the State and the accused in state criminal prosecutions 
is to be maintained, it is imperative that arbitrary 
denial of an accused’s Constitutional rights, as has oc­
curred in the Klopfer case, be corrected by this Court, 
(b.) The State of North Carolina by the entry of a 
nolle prosequi with leave has subjected the petitioner



10

to a subtle and indirect, but nevertheless burdensome, 
form of punishment for an offense as to which the State 
is barred in all probability from obtaining a conviction. 
(R. 7-10.) The reputation and standing of the peti­
tioner, a professor of zoology at Duke University (R. 
10), is being exposed without recourse on his part to 
the suspicions and adverse repercussions which are 
naturally attendant in any community toward anyone 
charged with a criminal offense. Likewise, the pe­
titioner is afforded no relief from the personal anxiety 
which naturally continues in response to his being sub­
ject to retrial whenever it may suit the State to resume 
prosecution.

(c.) The utilization of the nolle prosequi with leave 
by the State in cases such as Klopfer’s, where the ac­
cused has challenged the prevailing opinion of the 
community (R. 7-10), enables the State to stifle, pen­
alize and discourage the exercise of the First Amend­
ment rights of free speech and free assembly by using 
minor criminal prosecutions to ensnare the participant 
into the labyrinth of state criminal prosecution where 
the participant may be harassed and intimidated into 
silence or inaction. The State’s arbitrary manipulation 
of criminal procedure to impair and discourage the 
free exercise of First Amendment rights poses a clear 
and ominous threat to the democratic process requiring 
redress by this Court.



11

CONCLUSION

T o make effective the guarantee of an accused’s right 
to a speedy trial under the Sixth and Fourteenth Amend­
ments in a state criminal prosecution, the petition for writ 
of certiorari should be granted.

Respectfully submitted,

Wade H. Penny, Jr.
Counsel for Petitioner
Post Office Box 522
Durham, North Carolina, 27702



12

APPENDIX A

OPINION AND JU D G M EN T  OF T H E  
SUPREM E CO U RT OF N O R TH  CAROLINA 

IN T H E  CASE OF ST A T E  v. PET ER  KLO PFER

1. Opinion of the Supreme Court of North Carolina 
in the case of ST A T E v. PET ER  KLOPFER.

IN T H E  SUPREM E C O U R T OF N O R TH  CAROLINA 
FA LL TERM , 1965

State

v. L No. 829 — FROM ORANGE
Pet er  K lo p fe r  j

Appeal by defendant from Johnson, J., August, 1965 
Criminal Session, Orange Superior Court.

This criminal prosecution was founded upon a bill of 
indictment signed by Thomas J. Cooper, Solicitor, and 
submitted by him to the Grand Jury and returned a true 
bill by that body at its February, 1964 Session, Orange 
Superior Court. The indictment charged that on January 
3, 1964, the defendant “did unlawfully, wilfully and in­
tentionally enter upon the premises of Austin Watts . . . 
located on Route 3, Chapel Hill, North Carolina, . . . Watts 
being then and there in peaceable possession, and the said 
Peter Klopfer, after being ordered to leave the said premises 
willfully and unlawfully refused to do so, knowing he . . . 
had no license therefor . . . etc.” .

At the March, 1964 Special Criminal Session, the de­
fendant, represented by counsel of his own selection, enter­
ed a plea of not guilty. The issue raised by the indictment



13

and the plea was submitted to the jury which, after de­
liberation, was unable to agree as to the defendant’s guilt. 
The court declared a mistrial and ordered the case set for 
another hearing. T h e re a fte r , the record discloses the 
following:

“ No. 3556 — State v. Peter Klopfer
“The State moves the Court that it be allowed to take 
a nol pros with leave. The motion is allowed. De­
fendant takes exception to the entry of the nol pros 
with leave and gives notice of appeal in open court.”

T . W. Bruton, Attorney General,
Andrew A. Vanore, Jr., Staff Attorney, for the State
Wade H. Penny, Jr., for defendant appellant. 

HIGGINS, J.
The appellant challenged the right of the solicitor, even 

with the approval of the judge, to enter a nolle prosequi 
with leave in the criminal prosecution pending against him 
in the Superior Court. Stated another way, he insists his 
objection takes away from the solicitor and the court the 
power and authority to enter the order. The reason as­
signed is that the procedure denies him his constitutional 
right of a speedy trial.

When a nolle prosequi is entered there can be no trial 
without a further move by the prosecution. The further 
move must have the sanction of the court. When a nolle 
prosequi is entered, the case may be restored to the trial 
docket when ordered by the judge upon the solicitor’s ap­
plication. When a nolle prosequi with leave is entered, the 
consent of the court is implied in the order and the solici­
tor (without further order) may have the case restored 
for trial. “A nolle prosequi, in criminal proceedings, is 
nothing but a declaration on the part of the solicitor that



14

he will not, at that time, prosecute the suit further. Its 
effect is to put the defendant without day, that is, he is 
discharged and permitted to go whithersoever he will, with­
out entering into a recognizance to appear at any other 
time.” Wilkinson v. Wilkinson, 159 N. C. 265, 74 S. E. 968; 
State v. Thurston, 35 N. C. 256. Without question a de­
fendant has the right to a speedy trial, if there is to be a 
trial. However, we do not understand the defendant has 
the right to compel the State to prosecute him if the State’s 
prosecutor, in his discretion and with the court’s approval, 
elects to take a nolle prosequi. In this case one jury seems 
to have been unable to agree. The solicitor may have con­
cluded that another go at it would not be worth the time 
and expense of another effort.

In this case the solicitor and the court, in entering the 
nolle prosequi with leave followed the customary procedure 
in such cases. Their discretion is not reviewable under the 
facts disclosed by this record. The order is

Affirmed.

The foregoing opinion is located in and may be cited 
as: ST A T E  v. KLO PFER 266 N. C. 349, 145 S. E. 2d 909 
(1966).



15

2.Judgment of the Supreme Court of North Carolina 
in the case of ST A T E  v. P ET ER  KLOPFER.

JU D G M EN T

SUPREM E C O U R T OF N O R TH  CAROLINA

STA TE FA LL TERM , 1965
vs. 1- No 829

PETER  KLO PFER J ORANGE CO UNTY

This cause came on to be argued upon the transcript 
of the record from the Superior Court Orange County:

Upon consideration whereof, this Court is of opinion 
that there is no error in the record and proceedings of 
said Superior Court.

It is therefore considered and adjudged by the Court 
here that the opinion of the Court, as delivered by the 
Honorable Carlisle W. Higgins, Justice, be certified to 
the said S up e r i o r  Court ,  to the intent  that  the 
JU D G M EN T  IS AFFIRM ED. And it is considered and 
adjudged further, that the defendant do pay the costs of 
the appeal in this Court incurred, to wit, the sum of Thirty- 
three and No/100 dollars ($33.00) and execution issue 
therefor. Certified to Superior Court this 24th day of 
January, 1966.

SEAL

Adrian J. N ewton 
Clerk of the Supreme Court

By: Kathryn W. Bartholomew,
Deputy Clerk