State v. Graham

• Decision Date: 28 September 2004
• Docket Number: No. ED 83794.,ED 83794.
• Citation: 149 S.W.3d 465
• Parties: STATE of Missouri, Appellant, v. Thomas GRAHAM, Respondent.
• Court: Missouri Court of Appeals

149 S.W.3d 465

STATE of Missouri, Appellant, v. Thomas GRAHAM, Respondent.

No. ED 83794.

Missouri Court of Appeals, Eastern District, Division Three.

September 28, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 4, 2004.

Application for Transfer Denied December 21, 2004.

Edmund Postawko, St. Louis, MO, for appellant.

J. Christian Goeke, Arthur S. Margulis, St. Louis, MO, for respondent.

Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL JR., J., and LAWRENCE E. MOONEY, J.

PER CURIAM.

The State of Missouri ("State") appeals from the judgment of the trial court sustaining Thomas Graham's ("Graham") motion to dismiss the indictment against him for sodomy under section 563.230 RSMo 1969 based on the expiration of the statute of limitations.¹ State contends that the trial court erred in dismissing the indictment because there is no statute of limitations for the 1969 sodomy statute. We reverse and remand.

On December 17, 2002, the grand jury indicted Graham on the felony charge of sodomy, in violation of section 563.230, for an act or acts that allegedly occurred on or between January 12, 1975, and December 31, 1978. Graham filed a motion to dismiss the indictment on the ground that the statute of limitations had run on this charge, and had never been tolled. This motion was denied after argument on June 27, 2003. Graham filed a motion for rehearing of his motion to dismiss on September 20, 2003. After argument on this motion, the trial court dismissed the indictment with prejudice on the basis that it is barred by the statute of limitations. The State now appeals from this judgment.

In its sole point on appeal, the State contends that the trial court erred in sustaining Graham's motion to dismiss because there is no required time limit in which it had to bring the charge of sodomy under section 563.230 against Graham. State further argues that section 563.230 is an open-ended statute that has a minimum sentence of imprisonment but no maximum sentence of imprisonment, and therefore allows for the imprisonment of Graham for life if he were to be found guilty as charged. The State avers that because this is an open-ended statute permitting imprisonment for life, the applicable statute of limitations for sodomy prior to January 1, 1979, is section 541.190.

Section 541.190 states that "Any person may be prosecuted, tried and punished for any offense punishable with death or by imprisonment in the penitentiary during life, at any time after the offense shall have been committed." Section 563.230 provides that "Every person who shall be convicted of the detestable and abominable crime against nature, ..., shall be punished by imprisonment in the penitentiary not less than two years." The Missouri Supreme Court has interpreted such language to mean that it would permit punishment up to life imprisonment in the penitentiary. State v. Bray, 246 S.W. 921, 922 (Mo.1922).² Although a new criminal code went into effect on January 1, 1979, section 556.031 RSMo 1978 addressed the issue of crimes committed prior to January 1, 1979. That statute provided that the new revisions would govern the construction and punishment for any offense committed after January 1, 1979, but did not apply or govern the construction of and punishment for any offense committed prior to that date, or "the construction and application of any defense to a prosecution for such offenses."

In analyzing a criminal statute, this Court determines the legislature's intent from the language of the statute, and gives effect to that intent. State v. Daniel, 103 S.W.3d 822, 826 (Mo.App.2003). We examine the language used in the statute according to its plain and ordinary meaning. Id. We particularly look to whether the language is clear and plain to a person of ordinary intelligence. Id."Where the statutory language is unambiguous, we need not resort to statutory construction and must give effect to the statute as written." Id. The disjunctive "or" in its ordinary sense marks an alternative generally corresponding to the term "either." Council Plaza Redevelopment Corp. v. Duffey, 439 S.W.2d 526, 532 (Mo. banc 1969); Stonger ex rel. Stonger v. Riggs, 85 S.W.3d 703, 708 (Mo.App.2002). Every word, clause, sentence and section of a statute should be given meaning, and under the rules of statutory construction statutes should not be interpreted in a way that would render some of their phrases to be mere surplusage. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993); Stewart v. Williams Communications, Inc., 85 S.W.3d 29, 35 (Mo.App.2002).

Applying the plain and ordinary meaning of the disjunctive "or" in section 541.190, that statute states that there is no applicable statute of limitations for a crime that may be punished by either death or by imprisonment for life, which would include the crime at issue in this case. To hold that there is no statute of limitations only for those crimes punishable by death would make the phrase "or by imprisonment in the penitentiary during life" mere surplusage. Graham contends, however, that this is not correct. Graham cites to Garrett v. State, 481 S.W.2d 225 (Mo. banc 1972) as support for the argument that the language in section 541.190 means that the statute only applies to crimes for which the punishment is death or life imprisonment, and not crimes that have less than life imprisonment as a minimum sentence. The Missouri Supreme Court stated,

We have concluded that the phrase "punishable by a sentence of death or life imprisonment" embraces "only those offenses having as alternative punishments life imprisonment or death," and "does not embrace offenses which have a sentence of less than life imprisonment as a minimum and a maximum of either life imprisonment or death."

Id. at 227 (quoting Jaramillo v. District Court, 173 Colo. 459, 480 P.2d 841, 842-43 (1971)). While this would appear to address the language of the statute of the case at hand, it is necessary to note that in Garrett, the Missouri Supreme Court was determining the scope of its own exclusive appellate jurisdiction and construing the Missouri Constitution, and not interpreting a statute concerning the statute of limitations. As such, it is distinguishable from the case before us in which the legislature has stated its intent in plain and clear language that for crimes committed prior to January 1, 1979, there is no statute of limitations for crimes punishable by either death or by life imprisonment.

In a motion for rehearing following the court's original opinion, Graham further cites to State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079 (1931) and several cases based on Naylor to support his argument that the language in section 541.190 means that the statute only applies to crimes for which the punishment is death or life imprisonment.³ The Missouri Supreme Court in Naylor construed the language of a statute concerning the number of peremptory challenges in criminal cases and the size of jury panels. The statute at issue in that case, section 3674 RSMo 1929, stated in part that:

In all criminal cases the state and the defendant shall be entitled to a peremptory challenge of jurors as fo[l]lows: First, if the offense charged is punishable by death or imprisonment in the penitentiary for life, the state shall have the right to challenge six and the defendant twelve, and no more; second, in all other cases punishable by imprisonment in the penitentiary the state shall have the right to challenge four and the defendant eight and no more ...

The Missouri Supreme Court construed this to mean that a defendant was entitled to twelve peremptory challenges when the penalty "may be death or life imprisonment" under the terms of the statute defining the offense and prescribing the penalty.

The Missouri Supreme Court noted that the defendant's suggested construction of that statute, namely that a defendant facing a penalty that did not include death, but with a minimum sentence in the penitentiary and no express maximum sentence, and hence a potential sentence of life imprisonment, would be entitled to twelve peremptory challenges, was a plausible construction. The Missouri Supreme Court concluded that while the defendant's construction of the statute was plausible, it was not correct. The Missouri Supreme Court, however, made it clear that it based its construction of the statute upon the legislative intent in enacting section 3674, which amended the previous statutes concerning peremptory challenges, and devoted considerable analysis to determining what the intent of the legislature had been. The Missouri Supreme Court's construction of the language of section 3674 is limited to the statutes regarding peremptory challenges in criminal cases. In the most recent case on this issue cited to by Graham, State v. Morgan, 453 S.W.2d 932 (Mo.1970), the Missouri Supreme Court implicitly reaffirmed this limitation. It recapped the analysis and rationale of its holding in Naylor, and noted its reliance on legislative history and legislative intent in construing the statute relating to peremptory challenges, observing that that has been the uniform construction of such language in statutes addressing the number of peremptory challenges.

The statutory construction applied in the peremptory challenge cases is not applicable to the statute in the case before this Court. The language of section 541.190 is neither vague nor ambiguous. In construing that section, we apply the plain and ordinary meaning of the disjunctive "or" and conclude that that statute states that there is no applicable statute of limitations for a crime that may be punished by either death or by imprisonment for life, which includes the crime at issue in this case.

Moreover, the legislative history concerning statutes of limitation supports our interpretation in this case. In the Comment to the 1973 Proposed Code concerning statutes of limitations in...