STATE ex rel. JEFFREY MERRELL, PROSECUTING ATTORNEY, Relator,
THE HONORABLE ROBERT CRAIG CARTER, Respondent.
PROCEEDING IN PROHIBITION
R. Russell, Judge.
Jeffrey Merrell, prosecuting attorney for Taney County, seeks
a writ of prohibition to prevent the trial court from
assessing the costs of a special master against the county in
the criminal proceeding against Malcolm Pearce (Defendant).
Because the trial court lacked authority to assess costs for
the special master against the county, this Court makes
permanent its preliminary writ of prohibition.
was charged in Taney County with two counts of first-degree
statutory sodomy, two counts of first-degree child
molestation, two counts of first-degree endangering the
welfare of a child, and two counts of sexual misconduct or
attempted sexual misconduct involving a child younger than 15
years of age.
filed a motion to disqualify the prosecuting attorney,
alleging the Taney County prosecutor's office obtained
and disclosed phone calls made by Defendant from the
Christian County jail, some of which were apparently placed
to his attorneys. The trial court held a hearing on the
motion, and evidence was presented that no person from the
prosecutor's office had listened to or reviewed the phone
calls between Defendant and his attorneys. The trial court
overruled the motion to disqualify but appointed a retired
judge as special master with orders to review the jail phone
call files, redact all calls between Defendant and his
attorneys, and send the redacted electronic phone logs to
counsel. The order also directed all future recorded jail
calls to be forwarded to the special master.
special master carried out these orders and filed his report
with the trial court, which ordered that "Taney County
pay [ ], Special Master, two thousand eight hundred
twenty-four and 23/100 ($2, 824.34) within thirty days. [The
prosecutor] is directed to forward this order to the
appropriate official in Taney County to process this
payment." The prosecutor filed a motion to reconsider,
which the trial court overruled. The prosecutor now seeks
relief from this Court, requesting a writ of prohibition
vacating the trial court's order directing Taney County
to pay the special master's fees.
Jurisdiction and Standard of Review
Court has jurisdiction to "issue and determine original
remedial writs." Mo. Const. art. V, sec. 4. A writ of
prohibition may issue to: (1) "prevent the usurpation of
judicial power when a lower court lacks authority or
jurisdiction;" (2) "remedy an excess of authority,
jurisdiction or abuse of discretion where the lower court
lacks the power to act as intended;" or when (3) "a
party may suffer irreparable harm if relief is not
granted." State ex rel. Strauser v. Martinez,
416 S.W.3d 798, 801 (Mo. banc 2014).
a trial court can assess costs against the county for the
special master's services in a criminal proceeding is a
matter of first impression. The prosecuting attorney in this
case argues the trial court lacked authority to assess the
special master's fees against the county because no
statute or rule of criminal procedure provides for the
Court agrees. The trial court lacked authority to order Taney
County to pay the costs of the special master. The trial
court cites no authority supporting the imposition of those
costs beyond asserting that the prosecution's possession
of the jail phone calls prompted the decision to make the
are a creature of statute, and courts have "no inherent
power to award costs, which can only be granted by virtue of
express statutory authority." Gene Kauffman
Scholarship Found., Inc. v. Payne, 183 S.W.3d 620, 627
(Mo. App. 2006) (internal quotations omitted); see also
Groves v. State Farm Mut. Auto. Ins. Co., 540 S.W.2d 39,
44 (Mo. banc 1976) ("An item is not taxable as costs in
a case unless it is specifically authorized by statute, or by
agreement of the parties."). "Statutes allowing the
taxation of costs are strictly construed."
Payne, 183 S.W.3d at 627. Additionally, "costs
cannot be recovered in state courts from the state of
Missouri or its agencies or officials" absent statutory
authority. Richardson v. State Highway & Transp.
Comm'n, 863 S.W.2d 876, 882 (Mo. banc 1993).
no rule or statute includes the fees of a special master in
"costs" that can be collected in a criminal case.
Even if the fees of the special master could be considered
"costs, " no statute authorizes the assessment of
costs against a county under the circumstances present here.
Section 550.030, RSMo 2000, provides that the county in which
criminal charges were filed shall pay costs "[w]hen the
defendant is sentenced ...