Tuesday, January 17, 2017

State v. Bazell

Opinion handed down August 23, 2016 

            The Supreme Court of Missouri held that misdemeanor stealing offenses could not be enhanced to felonies under Missouri Revised Statutes section 570.030.3 because the enhancement provision was worded in such a way that rendered it inapplicable to the underlying stealing statute.[1]  The court’s ruling is based on a matter of statutory construction that was not addressed on appeal nor initially briefed by either party on transfer to the Supreme Court of Missouri.[2] 

I.  Facts and Holding
            On a Sunday morning in March of 2013, Amanda Bazell embarked on a burglary spree in rural Garden City, breaking into two residences while the occupants were at church and stealing multiple items of property including a pistol, rifle, laptop, jewelry box, suitcase, and two pairs of shoes.[3]  In the Cass County Circuit Court, Bazell was convicted and sentenced to twelve years in prison for burglary and four counts of stealing.4  Three of the stealing charges – one for each firearm and one for the jewelry – were charged as class C felonies under section 570.030.3, and the remaining stealing charge was a misdemeanor.5
II.  Legal Background
            Bazell appealed to the Missouri Court of Appeals for the Western District on two grounds: first, that the circuit court abused its discretion when it failed to grant a mistrial due to officer testimony regarding the composition of a photo lineup and, second, that charging her for two counts of stealing firearms in the course of one burglary violated her constitutional right to be free from double jeopardy.6
            The Western District affirmed the circuit court’s refusal to grant a mistrial regarding the testimony given by a detective that suggested he pulled photos for his lineups from either jail photos or Department of Revenue photos.7  But the Western District agreed with the defendant that being charged with two counts of felony stealing for stealing two firearms violated her rights against double jeopardy by cumulative punishment.8  The reasoning was based on the language of the statute, which provides that the crime of stealing can be enhanced to a class C felony when “the property appropriated consists of: . . . [a]ny firearms.”9  Bazell argued, and the Western District agreed, that the phrase “any firearms” is plural, therefore her stealing two firearms during the commission of the same crime is contained within one felony.10 
The Missouri Court of Appeals for the Southern District, however, came to a different conclusion in State v. Ross, holding that under section 570.030.1, the defendant could be charged with two counts of felony stealing for stealing two firearms.11  Due to the split within the courts of appeals, the Supreme Court of Missouri granted transfer to hear Bazell’s case earlier this year.
III.  Instant Decision
            The Supreme Court of Missouri affirmed the circuit court’s refusal to grant a new trial based on testimony about the photo lineup.12  Yet when applying the felony stealing provision, the Supreme Court of Missouri scrutinized the language at issue and came to an entirely different outcome than what had been considered by the lower courts.  And although the Southern and Western Districts were divided on the applicability of double jeopardy to multiple felony stealing charges under the language “any firearms,” the Supreme Court of Missouri did not reach this potential issue of constitutionality due to imprecise statutory drafting that rendered the felony enhancement provision entirely ineffectual.13
            Before the court could decide whether or not there was a double jeopardy issue posed by the “any firearms” language, it needed to address whether or not the purported enhancement provision of the statute could apply to the crime of stealing in the first place.  The court noted that the first part of section 570.030 defines the elements of the crime of stealing: a person “commits the crime of stealing when she appropriates the property or services of another with the purpose to deprive the owner thereof.”14  Section 570.030.3 provides for enhancement of stealing to a class C felony for “any offense in which the value of property or services is an element” under certain circumstances such as: “The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars” or the property appropriated consists of “any firearms.”15  Yet when referring back to section 570.030.1, which defines the elements of stealing, it is undeniable that the value of the property or services is absent from those elements.16  Therefore, the Supreme Court of Missouri held the felony enhancement provision could not apply and the charges for stealing firearms must be classified as misdemeanors.17  Because the enhancement provision containing the potentially troublesome language “any firearms” was not triggered, the court could not consider the issue of double jeopardy.[4]
            The State argued against reading the statute this way because it produces an “absurd and illogical result” that would totally undermine the felony enhancement provision, rendering that section of the statute useless.19  The absurd results canon of statutory interpretation is a principle that justifies departure from the plain meaning of the statute when the resulting interpretation would produce absurdity.20  Indeed, this was the doctrine invoked by the intermediate appellate court in State v. Passley in its holding that affirmed charging the defendant with felony stealing under section 370.030.3.[5]  Here, the court refused to apply that canon of interpretation to the provision, abrogating Passley.[6]
IV.  Comment
            The ruling will leave most misdemeanor stealing charges invulnerable to felony enhancement – at least until the recently revised criminal code goes into effect on January 1, 2017.[7]  The language at issue was incidentally removed from the newer code as part of a broader overhaul of the Missouri criminal code undertaken by the legislature in 2014.[8]  The felony enhancement provision at issue was amended in 2002, so this ruling affects not only those currently charged under the statute and those with cases on direct appeal, but it could also ostensibly affect those currently incarcerated who were convicted under the statutory scheme at any time over the last fourteen years, as they could potentially could bring a state habeas corpus action. 
            It can seem incredulous to read the statute in such a way that the felony enhancement provision will not apply to the underlying charge.  The result is that prosecutors must charge crimes as misdemeanors that otherwise seem to clearly fall within the gambit of crimes that the legislature intended to be enhanced to felonies.  The offending provision would purportedly enhance a wide range of stealing crimes to class C felonies, including, but not limited to: stealing involving firearms, motor vehicles, controlled substances, credit cards, explosives, wills, or deeds; physically taking property from the person of the victim; or stealing property or services valued at more than $500 but less than $25,000.24  For the time being, it seems all of these crimes can now only be charged as misdemeanors, notwithstanding other applicable provisions of law.
             As frustrating as it may be that that the legislature compiles statutes with irreconcilable provisions, the judiciary should be extremely reluctant to resort to the absurd results canon in order to reach beyond the words of the statute, especially in criminal cases where the rule of lenity is the countervailing force actually weighing in favor of the plain text of the statute.  Here, the court held that the language was “clearly and unambiguously” chosen by the Missouri General Assembly and therefore not open to interpretation by the courts, compilesng in the 7.not even to produce a result that the legislature likely intended.25
            Although absent from the reasoning in the instant compilesng in the 7.decision, another consideration in favor of the holding is the rule of lenity, which weighs heavily against employing the absurd results doctrine, because the result urged by the State would subject defendants to punishment despite the clearly expressed language from the legislature.  On rare occasions, the absurd results canon might be utilized by courts to avoid punishment or hardship because the law is ambiguous, but here the State argued for the court to employ the doctrine in order to effectuate a punishment, even though the words of the statute stated otherwise.  In a circumstance such as this, the proper course for remedying a heedlessly drafted statute is not through the courts but through the legislature, whose job it is to make laws.  Our democratic system of government functions most efficiently when each branch is held responsible for carrying out its duties.  While the legislature cannot be expected to draft every statute with impeccable precision and omniscient foresight, it would be improper for courts to substitute their own notions of what the law ought to be when a person’s liberty is at stake and the words employed by lawmakers leave no room for deviation.

- EB Wiles

[1] State v. Bazell, 497 S.W.3d 263, 265 (Mo. 2016) (en banc) (per curiam), reh’g denied (Sept. 20, 2016), as modified (Sept. 20, 2016).
[2] See generally State v. Bazell, 471 S.W.3d 359 (Mo. Ct. App. 2015), withdrawn.
[3] Bazell, 497 S.W.3d at 265.
4 Id.
5 Id.
6 Bazell, 471 S.W.3d 359.
7 Id.
8 Id.
9 Mo. Ann. Stat. § 570.030.3(3)(d) (West 2016).
10 Bazell, 471 S.W.3d 359.
11 State v. Ross, 479 S.W.3d 140, 141–42 (Mo. Ct. App. 2015), reh’g and/or transfer denied (May 26, 2015), transfer denied (June 30, 2015).
12 State v. Bazell, 497 S.W.3d 263, 265 (Mo. 2016) (en banc) (per curiam), reh’g denied (Sept. 20, 2016), as modified (Sept. 20, 2016).
13 Id.
14 Id.
15 Mo. Ann. Stat. §§ 570.030.3(1), 570.030.3(3)(d) (West 2016).
16 Bazell, 497 S.W.3d at 266.
17 Id. at 266–67.
[4] Id. at 266–67.
19 Respondent’s Supplemental Brief at 7, State v. Bazell, 497 S.W.3d 263 (Mo. 2016) (No. SC95318), 2016 WL 3944121, at *7 (“Moreover, interpreting § 570.030.3 to not apply to the crime of stealing under § 570.030.1 would lead to an absurd and illogical result.”).
20 Id. at 8–10.
[5] State v. Passley, 389 S.W.3d 180, 184–85 (Mo. Ct. App. 2012) (“Any other reading of the clear and plain words used in the statute, as suggested by Defendant, leads to the absurd and illogical result that the legislature chose to amend the stealing statute to provide an enhanced punishment for some other offense or offenses but not for the offense mentioned in that very statute and would ignore and render meaningless the language in section 570.030.8 that specifically references other penalties ‘specified in this section.’  Defendant’s third point is denied.”), abrogated by Bazell, 497 S.W.3d 263.
[6] Bazell, 497 S.W.3d at 266–67.compilesng in the 7.
[7] Alan Burdziak, Voided Law Could Negate Many Stealing Convictions, Columbia Daily Trib. (Sept. 6, 2016), http://www.columbiatribune.com/news/crime/voided-law-could-negate-many-stealing-convictions/article_97e3d7cd-216d-599f-9a87-d422c28b1318.html.

24 Id.
25 Bazell, 497 S.W.3d at 267.