State ex rel. Jones v. Prokes, WD 84255

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAlok Ahuja, Judge
Citation637 S.W.3d 110
Decision Date27 April 2021
Docket NumberWD 84255
Parties STATE of Missouri, EX REL. Jessica J. JONES, Gentry County Prosecuting Attorney, Relator, v. The Honorable Roger PROKES, Judge of the Circuit Court of Gentry County, Missouri, Division 1, Respondent.

637 S.W.3d 110

STATE of Missouri, EX REL. Jessica J. JONES, Gentry County Prosecuting Attorney, Relator,
v.
The Honorable Roger PROKES, Judge of the Circuit Court of Gentry County, Missouri, Division 1, Respondent.

WD 84255

Missouri Court of Appeals, Western District.

Filed: April 27, 2021
Application for Transfer to Supreme Court Denied June 1, 2021
Application for Transfer Denied August 31, 2021


Susan R. Rinne, Maryville; Kathryn M. Merwald, Kansas City, for Respondent.

Jessica J. Jones, Albany, for relator.

Before Writ Division: Lisa White Hardwick, P.J., and Alok Ahuja and W. Douglas Thomson, JJ.

Alok Ahuja, Judge

Due to two earlier felony convictions, Michael E. Wood was placed on supervised probation. A condition of his probation was that he attend a substance-abuse treatment program. The State contends that Wood provided his probation officer with falsified attendance sheets from a treatment program. As a result, it charged him in the Circuit Court of Gentry County with sixteen felony counts of forgery, and with two felony counts of tampering with a judicial officer.

Wood filed a motion to exclude testimony from his probation officer, and the allegedly falsified attendance sheets themselves, on the basis that the evidence was privileged under §§ 549.500 and 559.125.1 The circuit court sustained the motion. Jessica J. Jones, the Gentry County Prosecuting Attorney, filed a Petition for Writ of Mandamus in this Court, contending that the circuit court erred in sustaining Wood's motion to exclude evidence. Jones argues that the privilege statutes should not be read to exclude evidence of Wood's alleged commission of crimes in the course of his interactions with his probation officer.

We issued a preliminary writ of mandamus. We conclude that §§ 549.500 and 559.125 do not prevent the admission of evidence establishing that Wood's communications with his probation officer themselves constituted crimes. We accordingly make our writ of mandamus permanent, and direct the circuit court to rescind its order excluding evidence.

637 S.W.3d 114

Factual Background

On August 4, 2016, the Circuit Court of Gentry County sentenced Wood in Case No. 15GE-CR00003-01 to four years’ imprisonment, after Wood pleaded guilty to two felonies: driving while intoxicated; and driving while suspended or revoked. Pursuant to § 559.115.3, the circuit court recommended that Wood be placed in a 120-day institutional treatment program. After receiving a favorable report concerning Wood's conduct in the treatment program, the circuit court entered an order on November 15, 2016, placing Wood on five years’ supervised probation. One of the special conditions of Wood's probation was that he "shall attend an aftercare program focusing on substance abuse."

On March 8 and March 28, 2018, Wood allegedly provided his probation officer with attendance sheets from Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA") programs, showing that he had attended AA and NA meetings on sixteen different occasions in 2017 and 2018.

On April 16, 2018, Wood was charged in the Circuit Court of Gentry County in Case No. 18GE-CR00038-02 with eighteen felony counts: sixteen counts of forgery, in violation of § 570.090; and two counts of tampering with a judicial officer, in violation of § 575.095. The State alleged in its felony complaint that Wood forged signatures and other endorsements on the AA and NA attendance sheets. The complaint also alleged that, by giving the forged attendance records to his probation officer, Wood committed the offense of tampering with a judicial officer, because he had attempted to influence his probation officer in the performance of her official duties by deception.

Trial was set to commence on November 16, 2020. On November 3, 2020, Wood filed a motion to exclude testimony from his probation officer at trial, as well as any other evidence derived from his interactions with her (including the allegedly falsified attendance sheets). Wood contended that the evidence was privileged from disclosure under §§ 549.500 and 559.125.

A hearing was held on Wood's motion on November 12, 2020. On November 13, 2020, the circuit court entered its order sustaining the motion and ordering that the State "be prohibited from eliciting testimony or evidence from [Wood's probation officer], regarding information obtained by her in her capacity as a Probation Officer, regarding AA/NA endorsements presented to her by Defendant."

Jones filed her Petition for Writ of Mandamus in this Court on January 11, 2021.2 Respondent filed suggestions in opposition on January 25, 2021. On January 28, 2021, this Court entered its preliminary writ of mandamus, staying proceedings in the underlying case, and setting the writ proceeding for briefing and oral argument.3

637 S.W.3d 115

Discussion

I.

Mandamus is a discretionary writ that is appropriate when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal. "Ordinarily, mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers." However, if the respondent's actions are wrong as a matter of law, then she has abused any discretion she may have had, and mandamus is appropriate.

State ex rel. Lovelace v. Mennemeyer , 421 S.W.3d 555, 556 (Mo. App. E.D. 2014) (citing and quoting State ex rel. Valentine v. Orr , 366 S.W.3d 534, 538 (Mo. 2012) ; other citation omitted). "A litigant asking relief by mandamus must allege and prove that she has a clear, unequivocal, specific right to a thing claimed." State ex rel. Henderson v. Asel , 566 S.W.3d 596, 598 (Mo. 2019) (citations and internal quotation marks omitted).

The application of privileges, and the interpretation of statutes, present questions of law. State ex rel. Behrendt v. Neill , 337 S.W.3d 727, 729 (Mo. App. E.D. 2011) ; Richard v. Mo. Dep't of Corr. , 162 S.W.3d 35, 37 (Mo. App. W.D. 2005). If the circuit court's exclusion of the probation officer's testimony, and of the allegedly forged attendance sheets, misconstrues the privilege recognized by §§ 549.500 and 559.125.1, then that decision was "wrong as a matter of law," and mandamus relief is appropriate.

The State has no adequate remedy by appeal. The State would not be entitled to appeal following a trial in which the challenged evidence was excluded and Wood was acquitted, because the State is prohibited from appealing from final judgments in criminal cases "in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant." § 547.200.2. The State is barred by double jeopardy principles from obtaining a new trial based on the erroneous exclusion of evidence in a trial which resulted in a defendant's acquittal. See, e.g. , Smalis v. Pa. , 476 U.S. 140, 145-46, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986) ; Az. v. Manypenny , 451 U.S. 232, 246, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) ("the constitutional ban against double jeopardy ... bars an appeal by the prosecutor following a jury verdict of acquittal").

The State also has no avenue for an interlocutory appeal of the circuit court's evidentiary ruling. Section 547.200.1(3) provides that "[a]n [interlocutory] appeal may be taken by the state ... from any order or judgment the substantive effect of which results in ... [s]uppressing evidence." But the circuit court's ruling in this case did not involve "suppress[ion] [of] evidence" in the relevant sense. We have explained that

[t]he right to appeal under section 547.200(3) is "linked directly" to the five bases for filing a suppression motion set forth in section 542.296. Each ground for suppression under section 542.296.5 involves an illegal search and seizure. Consequently, the State's right to appeal under section 547.200 "has been consistently circumscribed to those cases where illegally obtained evidence is at issue."

An order suppressing evidence is not the same as an order excluding evidence based on a rule of evidence. "Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained." ... "In essence, evidence that
637 S.W.3d 116
is excluded for procedural reasons or for violation of the rules of evidence or for any other reason not having its genesis in the argument that it was illegally obtained is not appealable by the State."

State v. Woodworth , 413 S.W.3d 678, 682 (Mo. App. W.D. 2013) ; accord State v. Lilly , 410 S.W.3d 699, 701-03 (Mo. App. W.D. 2013) ; State v. Moad , 294 S.W.3d 83, 86-88 (Mo. App. W.D. 2009).

In this case, the circuit court entered an order excluding evidence of Wood's communications with his probation officer, not because the evidence had been illegally obtained, but because the court believed the evidence was subject to a statutory privilege. This writ does not concern the suppression of illegally obtained evidence. The State accordingly had no available remedy by appeal, and a petition for writ of mandamus was the appropriate method for the prosecution to seek our review of the circuit court's exclusion order.

II.

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1 practice notes
  • Sansone v. Governor of Mo., WD84426
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...one, and we are always led to avoid statutory interpretations that are unjust, absurd, or unreasonable." State ex rel. Jones v. Prokes, 637 S.W.3d 110, 116 (Mo. App. 2021) (internal quotation marks and citations omitted). Prior to a Sunshine Law request, whether a record must have been reta......
1 cases
  • Sansone v. Governor of Mo., WD84426
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...one, and we are always led to avoid statutory interpretations that are unjust, absurd, or unreasonable." State ex rel. Jones v. Prokes, 637 S.W.3d 110, 116 (Mo. App. 2021) (internal quotation marks and citations omitted). Prior to a Sunshine Law request, whether a record must have been reta......

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