State v. Pizzella

• Decision Date: 13 January 1987
• Docket Number: No. 68052,68052
• Citation: 723 S.W.2d 384
• Parties: STATE of Missouri, Respondent, v. Robert PIZZELLA, Appellant.
• Court: Missouri Supreme Court

Page 384

723 S.W.2d 384

STATE of Missouri, Respondent, v. Robert PIZZELLA, Appellant.

No. 68052.

Supreme Court of Missouri En Banc.

Jan. 13, 1987.

Rehearing Denied Feb. 17, 1987.

C. John Pleban, St. Louis, for appellant.

William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Transferred here by order of the Eastern District Court of Appeals, this cause, involving a challenge to the validity of a statute, falls within our exclusive appellate jurisdiction, Mo. Const. art. V, § 3.

The following facts gave rise to this proceeding: Sibley Williams (hereinafter Williams), a black male, was attending a "rock" concert on the evening of January 28, 1984 at the Arena in St. Louis. Williams testified that after purchasing refreshments at an Arena concession stand, he felt what seemed to be a stick thrust against his back inside his belt and was pulled away from the concession area through an exit door. Williams claims he was pushed against a wall and searched by two police officers, Robert Pizzella (hereinafter appellant) and William Meyer (hereinafter Meyer). That during this search he was taunted by racial insults, ordered to drop his pants and approximately $100 along with some controlled substances were taken from him by the officers. He, also, testified that they directed him to leave the Arena through a side exit; however, Williams returned to the front lobby of the Arena where he saw police officer Cox [hereinafter Cox] and informed him that two policemen had taken money from him. While he talked with Cox, appellant and Meyer came up and arrested him and either appellant or Meyer told Cox that Williams had escaped from their custody earlier in the evening.

Appellant and Meyer were charged by separate indictments with the class B felony of robbery in the second degree, under § 569.030, RSMo 1978. State v. Pizzella was docketed in the City of St. Louis Circuit Court as Case No. 841-01175 and State v. Meyer as Case No. 841-01176. The state moved for consolidation of the cases as authorized by § 545.880.1, RSMo Cum.Supp.1984 (hereinafter § 545.880.1) effective August 13, 1984, while appellant under the terms of Supreme Court Rule 24.06(a) moved for severance. The trial court relying on the language of § 545.880.1, denied appellant's motion, ordered that the defendants be tried together and in the trial that followed on March 25, 1985 each defendant was convicted on the lesser offense of stealing without consent § 570.030, RSMo Cum Supp.1984 (currently § 570.030 Noncum.Supp.1985).

Supreme Court Rule 24.06(a) (amended June 1980 effective January 1, 1981) ¹ in vogue at the time of trial provided:

Any defendant jointly charged with one or more defendants with the commission of any felony other than under the provisions of Sections 566.030 or 566.060, RSMo, upon his motion made prior to the commencement of trial, shall be tried separately. In the absence of such a motion such jointly charged defendants shall be tried jointly or separately as the court in its discretion may order. (Emphasis added.)

As noted above, before the cause came for trial the legislature had enacted House Committee Substitute for Senate Committee Substitute for Senate Bill No. 602, (hereinafter Senate Bill 602) which included among its many parts and subparts § 545.880.1, which provides:

Notwithstanding supreme court rule 24.06, whenever two or more defendants are jointly charged in an indictment or information, the court shall order both or all defendants to be tried together. In the event two or more defendants are charged in separate indictments or informations with offenses, where both the defendants and the offenses could have been joined in the same information or indictment, upon motion of one or more defendants or on motion of the state, the court may order the indictments or informations or both to be tried together. (Emphasis added.)

Appellant first contends that § 545.880.1, adopted subsequent to our Rule 24.06(a) is by its terms and mode of enactment violative of Mo. Const. art. V, § 5 (1945 amended 1976) ² and because the trial court erroneously followed the invalid statute instead of the mandate of our Rule, the trial court's denial of appellant's motion for a separate trial constitutes reversible error. He argues that the legislature in its attempt to annul Rule 24.06(a) through the enactment of § 545.880.1 failed to comply with the "limited to the purpose " mandate of Article V, § 5, and hence § 545.880.1 is invalid and should not have been relied on to resolve the issue of severance.

It is clear that the intent of the first sentence of § 545.880.1 was to annul Rule 24.06(a), for our rule required that a separate trial be had for a defendant "jointly charged" with one or more defendants with the commission of any felony (with certain specified exceptions) if such defendant prior to commencement of trial moved for severance. On the other hand, the first sentence of § 565.880.1 mandates a single trial for multiple defendants if they are "jointly charged in an indictment or information" and to this extent the first sentence of the statute stands contrary to and in effect would annul the Rule.

However here, the defendants were charged in separate indictments and it was not the first sentence of the statute, but the second, which applied, allowing the trial court to consolidate such charges and "order ... [that they] be tried together." In short it was this second sentence of the statute which controlled the case at bar and the provisions of that sentence do not conflict with or "annul" Rule 24.06(a) which relates only to jointly charged defendants. Hence the constitutional challenge to the mode of enactment is not germane to the operative portion of the statute and appellant is without standing to challenge the validity of the portion of the statute which has no application to his case.

"[N]ot just anyone has standing to attack the constitutionality of a statute" Ryder v. County of St. Charles, 552 S.W.2d 705, 707 (Mo. banc 1977), and to acquire the requisite standing, a litigant must be "adversely affected" by the statute he challenges. Id. In State v. Williams, 343 S.W.2d 58 (Mo.1961), defendant argued that § 556.280(3), RSMo (1959) (hereinafter § 556.280(3)) was unconstitutional because it "deprive[d] defendants of their right to a trial by jury...." Id. at 61. (Emphasis added.) Williams lacked standing to attack § 556.280(3) because "[i]t ha[d] no application to any fact of [the] record...." Id. (Emphasis added.) In the case at bar appellant has similarly failed to show how the first sentence of § 545.880.1, though it may be subject to the charge of invalidity, has application to the facts of his case and that he has in any way been "adversely affected" by the enactment of that provision of the statute. ³

Appellant next contends that § 545.880.1 is violative of due process, equal protection and his right to effective assistance of counsel because joinder is alleged to have precluded cross-examination of Meyer about a police report authored by him and Sergeant G. Roy (hereinafter Roy) which was admitted into evidence. Before ruling appellant's motion for severance the trial judge was required by § 545.880.2, RSMo Cum.Supp.1984 (hereinafter § 545.880.2) to consider the "probability for prejudice" to appellant in a joint trial. Section 545.880.2(4), provides that the trial court "shall find" that the "probability for prejudice" exists if:

Severance of the joint defendants is necessary to achieve a fair determination of guilt or innocence of any defendant. (Emphasis added.)

Appellant's due process, equal protection, and effective assistance of counsel contentions may be reduced to an attack on the basic fairness of allowing defendants to be tried jointly as authorized by the second sentence of § 545.880.1. These matters were briefed and argued to the trial judge prior to his ruling appellant's motion to sever and he was required to consider the basic fairness of a joint trial. Appellant contends that while the police report prepared by Officers Roy and Meyer might be admissible against Meyer, it was inadmissible as to appellant and the "spill over effect" as to appellant requires reversal in his case. We are unable, on the record before us to conclude that in a separate trial of appellant the police report would necessarily have been inadmissible. The fact that the report recounts an arrest made by both appellant and Meyer would provide the foundation for admission of the report as to Meyer. As will be discussed the fact of a conspiracy at the time of the stealing and immediately thereafter was supported by evidence developed in trial. Further the fact of a conspiracy in the promulgation and recording or filing of the report is supported by circumstantial evidence in the fact that Pizzella, though not its author, was as an arresting officer most certainly aware of its existence and content. Nothing in the record indicates that he made any effort to repudiate, contradict or change its terms. The trial court duly exercised its discretion in ruling the severance motion and no abuse of discretion has been shown, we hold such constitutional challenges without merit. Cf. State v. Lincoln, 482 S.W.2d 424, 426 (Mo.1972) (decision whether to grant separate trials to defendants separately charged is committed to discretion of trial court).

Appellant next asserts § 545.880.1 is an ex post facto law because the alleged criminal act was committed in January 1984, that he was indicted May 9, 1984 and § 545.880 only came into effect August 13, 1984. However the case was not tried until March 25, 1985, well after the effective date of the statute, and an ex post facto law is one which "denounces as criminal acts which were non-criminal when committed or ... changes penalties for criminal violations after such violations are committed." Lincoln Credit Co. v. Peach, ...