State v. Cella
| Decision Date | 14 November 2000 |
| Citation | 32 S.W.3d 114 |
| Parties | (Mo.banc 2000) . State of Missouri, Respondent, v. Andrew Cella et al., 1, Appellants. Case Number: SC81941 Handdown Date: |
| Court | Missouri Supreme Court |
Appeal From: Circuit Court of Lincoln County, Hon. Glenn A. Norton
Counsel for Appellant: Andrew J. Cella, Donald L. Young, Floyd L. Heubner, Dennis P. Logan, Roger A. Peek, Michael A. Peek, Donald R. Schaefer and Donald L. Schaefer, Pro Se
Counsel for Respondent: Theodore A. Bruce
Opinion Summary:
When Amanda Brook Lenk received two traffic tickets, her grandfather and others told the judge that if the case was not dismissed, they would proceed against him in "their court." The group issued orders and judgments not recognized by the federal or state constitutions or statutes and filed liens against the judge's property. The individuals were convicted of tampering with a judicial officer, section 565.084. They appeal.
AFFIRMED.
Court en banc holds:
Individuals who appeal are responsible for showing that a trial court action was erroneous and for filing a transcript of the proceedings below to enable the appellate court to review the action. Although provided extra time, the appellants asserted no transcript was necessary and did not file one.
Appellants allegations relate to constitutional challenges to section 565.084 that prohibits tampering with a judge, use of information in lieu of indictment, charge as principals and conviction as accessories, prosecution by appointment of assist attorneys general, allegedly newly "found" evidence that they did not exercise diligence in discovering, an indecipherable argument, change of judge, bias, denial of petitions and motions and demands, jury instructions, arraignment, and others. All of their claims are either not preserved for appellate review (they failed to raise them at or after trial and did not provide a record sufficient to review), are untimely, or are devoid of merit.
Opinion Author: PER CURIAM
Opinion Vote: AFFIRMED.
On February 3, 1996, Amanda Brook Lenk received two traffic tickets.2 Lenk's grandfather and another visited the judge to whom the matter was assigned. The visitors told the judge that the case should be dismissed and, if it was not dismissed, that they would proceed against him in "their court." The case was not dismissed.
A group of individuals caused a paper labeled an "order to appear" to be served on the judge. The "order," which had no legal effect, sought to require the judge to appear before "Our One Supreme Court, " an entity not recognized by the federal or state constitutions or statutes. The "order" informed the judge that if he did not appear, a "judgment," which these individuals had no legal basis to impose, would be entered in the amount of $10,804,000. The judge did not appear.
Following the judge's failure to appear, various individuals, purporting to act as a "grand jury," prepared another "order," also having no legal effect, that various documents be recorded with the county recorder's office. The next day, liens were filed in the recorder's office against the property of the judge.
The defendants were subsequently charged and convicted of the crime of tampering with a judicial officer. Section 565.084, RSMo Supp. 1995.3 Logan was sentenced to seven years imprisonment; all other defendants in this appeal were sentenced to four years imprisonment. Appellants raise at least thirteen points on appeal. They also filed a "petition new found [sic] evidence for reversal and dismissal with prejudice." All of these claims are either not preserved for appellate review, are untimely, or are devoid of merit. Finding no prejudicial error, the judgments are affirmed.
Because appellants challenge the constitutionality of a statute, we have jurisdiction. Mo. Const. art. V, sec. 3.
It is fundamental that on appeal the trial court's action is presumed to be correct, and the burden is on the appellant to establish that the action was erroneous. Linzenni v. Hoffman, 937 S.W.2d 723, 725 (Mo. banc 1997). Having the burden of demonstrating error, it is appellant's obligation to prepare and file a transcript that incorporates the proceedings showing that the trial court erred. State v. Cleveland, 627 S.W.2d 600, 601(Mo. 1982). It is appellant's responsibility to prepare a complete record on appeal. State v. Dunn, 817 S.W.2d 241, 244 (Mo. banc 1991). The appellants filed a joint legal file and joint briefs.
The Court originally placed the case on a dismissal docket because of appellants' failure to file a transcript. Appellants were granted time to correct the deficiency. In lieu of filing a transcript, appellants filed a petition/motion in opposition to dismissal asserting that no transcript was necessary as they presented no questions on appeal that required resort to a transcript. Consequently, appellants did not file a transcript.
Appellants first contend that the bill containing section 565.084 includes more than one subject, violating article III, sec. 23 of the state constitution. This contention was not raised in a motion for new trial filed on behalf of appellants. To preserve a constitutional question for review on appeal, it must be preserved in the motion for new trial. State v. Flynn, 519 S.W.2d 10, 12 (Mo. 1975). As this question is not preserved, the appellants are not entitled to review. Appellants' request for plain error review is declined, as the record on appeal is not sufficient to engage in such review.
Appellants' claim that sec. 565.084 is special legislation, violating article III, sec. 40(28), also was not preserved. Moreover, there is no plain error. A "special law" is a law that includes less than all who are similarly situated. A law is not special if it applies to all of a given class alike and the classification is made on a reasonable basis. Fust v. Attorney Gen. for the State of Mo., 947 S.W.2d 424, 432 (Mo. banc 1997). The statute applies to all judicial officers. The classification is a reasonable one, seeking to assure the public that judges confine their decisions to the evidence and law applicable to a case rather than threats and intimidation.
Appellants' claim that the statute is void for vagueness cannot be reviewed in the absence of a transcript. In reviewing vagueness challenges, the language is to be evaluated by applying it to the facts at hand. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 959 (Mo. banc 1999). Absent a transcript it is not possible to determine the "facts at hand."
Appellants next claim that the state could not file charges against them by using an information in lieu of indictment. This issue is not preserved, as these appellants did not file a motion for new trial. No plain error occurred because the use of an information in lieu of indictment is permitted by article I, sec. 17, of the state constitution. State v. Martin, 395 S.W.2d 97, 99 (Mo. 1965).
For their next claim, appellants assert that they cannot be charged as principals and convicted as accessories. As with their other claims, this claim is not preserved for appellate review. No plain error occurred. Long ago, this Court eliminated the common law distinction between principals and accessories. This was also reflected in sections 556.170 to 556.190, RSMo 1969. All persons who act together with a common intent and purpose in the commission of a crime are equally guilty. An indictment or information may charge a defendant either as a principal or as an aider and encourager with the same legal effect. It is proper to submit to the jury a theory of accomplice liability despite charging the defendant as a principal. State v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993).Did the trial court commit plain error by permitting the case to be prosecuted by assistant attorneys general? This is appellants' next unpreserved claim. The trial court did not commit prejudicial error.
Section 56.110 permits the appointment of a special prosecutor due to a prosecutor's conflict of interest. State v. Fears, 803 S.W.2d 605, 610 (Mo. banc 1991). The trial court appointed the attorney general. Section 27.010 provides that assistant attorneys general shall assist the attorney general in the duties of the office and have authority under the attorney general's direction to represent the attorney general in the discharge of all the duties of that office. Moreover, appellants fail to articulate any prejudice resulting from the appointment. See Fears, 803 S.W.2d at 610.
In connection with this claim, appellants filed a "petition," which is treated as a motion, asserting newly "found" evidence. The evidence consists of a statement from the secretary of state's office that the oaths of office for assistant attorneys general are not on file with the Missouri state archives. Such evidence does not constitute newly...
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