State v. Sweeney

• Decision Date: 17 December 1985
• Docket Number: No. 66955,66955
• Citation: 701 S.W.2d 420
• Parties: STATE of Missouri, Respondent, v. Jay Steven SWEENEY, Appellant.
• Court: Missouri Supreme Court

Page 420

701 S.W.2d 420

STATE of Missouri, Respondent, v. Jay Steven SWEENEY, Appellant.

No. 66955.

Supreme Court of Missouri En Banc.

Dec. 17, 1985.

Rehearing Denied Jan. 15, 1986.

Richard Barry, Robert S. Adler, Ann Lemp, St. Louis, for appellant.

William L. Webster, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Jay Steven Sweeney, convicted by a jury of receiving stolen property, § 570.080 RSMo 1978, ¹ was sentenced to five years in prison and in this appeal contends the trial court erred in the following respects: Failing to direct a verdict for appellant because the evidence disclosed the property received was not stolen; refusing to require a finding by the jury that the property had been stolen before a guilty verdict could be returned; permitting introduction of appellant's tape recorded statements which revealed a prior conviction; failing to suppress evidence seized pursuant to a prospective search warrant; refusing to order disclosure of a confidential police informant; violating appellant's right to a speedy trial.

After reversal in the Court of Appeals-Eastern District the cause was ordered transferred that we might examine the meaning of § 570.080, RSMo 1978 and its application to one who receives the property of another believing it to be stolen, but which in fact was not stolen. This was the only point addressed by the Court of Appeals.

Appellant's conviction arose from a St. Louis County police undercover operation in which a police department detective, posing as a dealer in stolen goods, was introduced by a confidential informant to appellant's business partner. Following a conversation between the undercover detective and the business partner about buying and selling stolen watches, the detective by telephone arranged a meeting with appellant, who had earlier indicated an interest in purchasing such a watch.

The detective on the next day made a verified application for a warrant to search appellant's business premises. Attacked by appellant as an invalid prospective search warrant, the affidavit and application indicated that arrangements had been made to borrow a watch from a local jeweler and that the warrant would not be executed until the watch was on appellant's premises described in the warrant. On that information the warrant was issued by the court.

Later that day the police borrowed a watch, having a retail price of $9,000 and at wholesale, a value of $5,000. The detective, "wired" with a hidden microphone and transmitter, proceeded with the watch to appellant's place of business and waited a short time for appellant and his business partner to arrive. The three went into appellant's office where appellant was shown the watch, was told it was stolen and that its retail price was $9,500. Appellant asked to have the genuineness of the watch verified. Before appellant and the detective left to have the watch checked appellant indicated he might replace the workings of the stolen watch with his own so that he would have the "right serial numbers" in case he and the detective were "pulled over." After verification of the watch's value by a jeweler, the two returned to appellant's office where appellant placed the watch in a cabinet drawer from which it was later seized by police acting under the search warrant. The pair next proceeded to appellant's bank where appellant withdrew $1,000 which he paid the detective as the price agreed for the watch.

I.

As noted above it is appellant's principal contention that the state failed to make a submissible case because the evidence disclosed the wrist watch he received was not stolen property, and that such is an indispensable element of the offense under § 570.080.

Appellant misreads the statute. In so doing he ignores or down plays certain explicit language of the statute and would have us disregard the maxim of statutory construction that the legislative intent insofar as possible, is to be determined from the language of the statute itself, State v. Swoboda, 658 S.W.2d 24 (Mo. banc 1983); further that each portion of the statute must be given meaning unless it conflicts with ascertained legislative intent. State v. Van Horn, 625 S.W.2d 874 (Mo.1981). When the legislature has altered an existing statute (and here there has been a radical departure from the preexisting statute) such change is deemed to have an intended effect, and the legislature will not be charged with having done a meaningless act. State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207 (Mo.1973).

The controlling section, § 570.080, RSMo 1978, enacted as part of the new Criminal Code in 1977 to take effect in 1979, replaced the earlier "receiving stolen property" statute. The prior section § 560.270, RSMo 1969, (repealed 1979) specifically required a finding that the property at issue be stolen. The statute provided as follows:

Every person who shall buy, or in any way receive, with intent to defraud, any property that shall have been stolen from another, knowing the same to have been stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing of the property so bought or received.

(Emphasis added.)

The new statute § 570.080 effected several profound changes. First, it discarded the language of prior statute requiring as an element of the crime that property received "shall have been stolen" and replaced that element so that the property received need merely be "property of another." Section 570.080.1, note 1, supra.

Next § 570.080 altered the element of intent. No longer is the crime limited to a defendant who knows the property "to have been stolen"; instead the necessary intent occurs if the defendant received "property of another knowing that it has been stolen, or believing that it has been stolen." Section 570.080.1 (emphasis added). Notwithstanding the express language of the statute, appellant would have us construe the section to mean that the crime occurs only if the property is stolen. He points to the use of the word "stolen" carried in the title to the statute. Appellant "has evidently confused the catch words prefixed by the compiler of our Session Acts, which are not parts of the title in a constitution [sic] sense, [citation omitted] with the title to the act found in Laws of Missouri," 1977, p. 658. Ex parte Lockhart, 171 S.W.2d 660, 663 (Mo. banc 1943). The title "receiving stolen property" is only an expression of the general scope of the section and does not control or alter the meaning of its specific provisions. In re Tompkins' Estate, 341 S.W.2d 866 (Mo.1960).

Appellant also attaches significance to the consistent reference in subdivision 2 of the statute to the term "stolen property." Subdivision 2 of 570.080 adds a nonexclusive list of circumstantial evidence deemed admissible to demonstrate knowledge or belief. Most certainly such listing broadens and does not narrow or limit the scope of circumstances which may be found relevant and material to the issue. See § 570.080.2, note 1, supra. Subparagraphs (1) and (2) of subdivision 2 deal with and render admissible evidence of prior specific criminal activity which might otherwise be objectionable. Subparagraph (3) permits use of evidence that a defendant acquired property for a price far below the property's "reasonable value" to show knowledge or belief that the property was stolen. While it is not indicated that such evidence might raise a presumption of guilt, subdivision 2 and its subparagraphs satisfy a variety of evidentiary challenges that might be raised to those particular items of circumstantial evidence. Despite the fact that each of the three referenced subparagraphs deals with situations involving "stolen property" and the admissibility of particular circumstantial evidence, the list, as stated above, is not intended to be exclusive. Nor do we interpret the three subparagraphs of subdivision 2 as voiding the clear express language of § 570.080.1 which delineates the act of receiving the "property of another ... believing that it has been stolen" as criminal.

Additionally the listing in subdivision 2 of certain circumstantial evidence declared to be admissible, in no way limits direct proof of the elements of the crimes proscribed in § 570.080.1. For as here, there was copious direct evidence of each element charged and we hold the admission of such direct evidence was proper. The fact that it lay beyond the items listed in subdivision 2 affected neither its admissibility nor the scope of proscribed acts in § 570.080.1.

Our ruling today does not diminish the general scope of this statute and its continued application to property which is in fact stolen. However, it must be reiterated that the statute has been markedly broadened to include not only property that has in fact been stolen but also property "of another" that has not been stolen but which the accused "believes" to have been stolen.

The statute is designed as a means of curbing the activities of those who fence or deal in stolen property believing it to be stolen. The legislature has significantly increased the risk for those who choose this path to crime. Finally, it is clear the evidence supported the finding that appellant intended to deprive the "owner" of his "lawful interest" in the property which appellant bought and received and the trial court's instruction incorporating these elements was not erroneous. ² Appellant's contention is denied.

II.

Appellant next attacks the trial court's admission of tape recorded conversation between appellant and the undercover detective as a violation of the general rule against admission of evidence of other crimes. The tape, played to the jury, included appellant's discussion of his decision to purchase the watch, the price, the modus operandi and precautions he insisted upon to protect himself from arrest. At one point in the tape, immediately...