State ex rel. Tipler v. Gardner, SC 95655

• Decision Date: 31 January 2017
• Docket Number: No. SC 95655,SC 95655
• Citation: 506 S.W.3d 922
• Parties: STATE EX REL. Kendrick TIPLER, Relator, v. The Honorable Michael GARDNER, Respondent.
• Court: Missouri Supreme Court

506 S.W.3d 922

STATE EX REL. Kendrick TIPLER, Relator,

v.The Honorable Michael GARDNER, Respondent.

No. SC 95655

Supreme Court of Missouri, en banc .

Opinion issued January 31, 2017

Tipler was represented by Leslie N. Hazel of the public defender's office in Kennett, (573) 888–0604. The state was represented by Gregory M. Goodwin of the attorney general's office in Jefferson City, (573) 751–3321, and Julie A. Hunter of the Cape Girardeau County prosecutor's office in Jackson, (573) 243–2430.

The Missouri Association of Prosecuting Attorneys, which filed a brief as a friend of the Court, was represented by Jason H. Lamb and Catherine Vannier of the association in Jefferson City, (573) 751–0619.

ORIGINAL PROCEEDING IN PROHIBITION

Paul C. Wilson, Judge

This Court issued a preliminary writ of prohibition to consider Relator Kendrick Tipler's claim that the new rule of evidence set forth in the 2014 amendment to article I, section 18(c) of the Missouri Constitution could not be applied in his upcoming trial because the crimes with which he is charged occurred before the effective date of that constitutional amendment. The Court now quashes its preliminary writ and holds that article I, section 18(c) applies to all trials occurring on or after the effective date of the amendment, regardless of when the crimes are alleged to have occurred. Claims that the trial court applied this new rule of evidence improperly, or that a proper application of this rule nevertheless violates the defendant's substantive rights under the state or federal constitutions, are not before the Court in this proceeding. Such objections must be properly raised and preserved during trial and properly presented on appeal if the defendant is convicted.

Background

Tipler is charged with one count of attempted statutory sodomy arising out of conduct alleged to have occurred on or between September 1 and December 31, 2013. Tipler's first trial on this charge ended in a mistrial because the jury was unable to reach a unanimous decision. A second trial was scheduled for May 2016.

On February 19, 2016, Tipler filed a "Motion in Limine to Exclude Propensity Evidence, Evidence of Prior Crimes, and Evidence of Prior Bad Acts." On February 23, apparently in response to Tipler's motion, the state filed a motion stating that it intended to offer evidence of Tipler's prior criminal acts at trial under article I, section 18(c). On March 6, 2016, the trial court heard both motions and took them under advisement. Shortly thereafter, the trial court issued its order stating:

The Court grants the State's Motion to Produce "Prior Criminal Acts" in the State's Case-in-Chief Pursuant to Missouri Constitution Article 1 Section 18(c). The Court finds that the Defendant's certified prior conviction for Endangering the Welfare of a Child in the First Degree, which includes the language "by having sexual relations with the child," is relevant and admissible for the purpose of corroborating the alleged victim's testimony or demonstrating the Defendant's alleged propensity to commit the crime with which he is presently charged. The Court finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Defendant's Motion ... is denied.

Tipler filed a motion to reconsider, which the trial court overruled. After being denied relief in the court of appeals for a writ of prohibition or mandamus, Tipler petitioned this Court for a writ of prohibition to prohibit the trial court from admitting evidence at trial concerning Tipler's prior conviction and related conduct.

A defendant in a criminal case cannot challenge a pretrial evidentiary ruling by appeal, see State v. Purlee , 839 S.W.2d 584, 592 (Mo. banc 1992) ("motion in limine, in and of itself, preserves nothing for appeal"), or by seeking an extraordinary writ, see State ex rel. Westfall v. Gerhard , 642 S.W.2d 679, 681 (Mo. App. E.D. 1982) ("The state thus complains of anticipated error and our ruling on the merits would constitute an advisory opinion only."). Instead, the defendant's objections must be timely raised at trial, preserved for appeal, and—if the defendant is convicted—properly presented on appeal. Purlee , 839 S.W.2d at 592.

But this Court perceives Tipler's claim to be quite different. Tipler is not challenging how the trial court applied article I, section 18(c) to the facts and circumstances of his particular case. Instead, he challenges the trial court's authority to apply it at all. Tipler claims that article I, section 18(c) cannot apply to any trial in which the charged conduct is alleged to have occurred prior to December 4, 2014, i.e., the date on which article I, section 18(c) took effect. The Court issued a preliminary writ of prohibition to consider this question.

The Court rejects Tipler's claim and holds that the new rule of evidence adopted in article I, section 18(c) applies to all trials occurring on or after December 4, 2014, when this new provision took effect. The question of the way in which the trial court anticipates applying article I, section 18(c) to the facts and circumstances in Tipler's case, however, is premature. It is not before the Court in this proceeding, and the Court expresses no opinion on that question.

Analysis

On November 4, 2014, Missouri voters approved a constitutional amendment enacting a new rule of evidence in criminal cases. This amendment took effect December 4, 2014. See Mo. Const. art. XII, § 2(b) ("If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election."). This new rule of evidence states, in its entirety:

Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Mo. Const. art. I, § 18(c).

Tipler argues that this provision may not be applied retrospectively. In this, Tipler is correct. In some cases, judicial decisions construing existing constitutional provisions are given retroactive effect. See Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) (noting that "general bar on retroactivity" does not apply to decisions announcing new "substantive rules" or new "watershed rules of criminal procedure"). Constitutional amendments , on the other hand, like statutory amendments, apply only prospectively in all but the most extraordinary circumstances. See State ex rel. Scott v. Dircks , 211 Mo. 568, 111 S.W. 1, 3 (Mo. banc 1908) ("The settled rule of construction in this state, applicable alike to the Constitution and statutory provisions, is that ... they are to be construed as having a prospective operation only.").

But to say that article I, section 18(c) applies prospectively (i.e., only to events occurring on or after its effective date) does not resolve the issue Tipler raises. Instead, the key to resolving that issue lies in properly identifying the "events" to which article I, section 18(c) prospectively applies. The answer is either: (a) the alleged criminal acts or (b) the trial of charges arising out of such acts. Without explanation or analysis, Tipler insists that it must be the former, i.e., that article I, section 18(c) applies only to alleged criminal acts occurring on or after its effective date. This is incorrect.

Nothing in article I, section 18(c) pertains to the criminality of particular conduct. It does not purport to make previously legal conduct illegal, or to make previously illegal conduct legal. Nor does article I, section 18(c) purport to change the punishment for actions that already have occurred, or to change the facts that the state must prove in order to sustain a conviction for such acts. Instead, by its plain language, the 2014 amendment addresses only the admissibility of evidence in "prosecutions for crimes of a sexual nature involving a victim under eighteen years of age." Accordingly, to say that article I, section 18(c) applies only prospectively is to say that it applies only to trials occurring on or after its effective date.

This Court has long held that legislative changes to the rules governing whether particular evidence is or is not admissible are to be applied prospectively to all trials occurring on or after the effective date of that change. For example, in O'Bryan v. Allen , 108 Mo. 227, 18 S.W. 892 (Mo. 1891), testimony that had been admitted in the first trial was held to be inadmissible in the second trial because a statute (enacted between the trials) declared such testimony inadmissible. Id. at 893.

Laws which change the rules of evidence relate to the remedy only, may be applied to existing causes of action , and are not precluded from such application by the constitutional provision. Cooley, Const. Lim. (3d Ed.) p. 288. The learned author, in another connection, thus states the doctrine upon this subject: "A right to have one's controversy determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the state provides for its citizens, and generally, in legal contemplation, they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must therefore at all times be subject to modification and control by the legislature, and the changes which are enacted may lawfully be made applicable to existing causes of action, even in those states in which

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