Tuesday, February 14, 2017

State ex rel. Tipler v. Gardner

Opinion handed down January 31, 2017
            In State ex rel. Tipler v. Gardner, the Supreme Court of Missouri held that article I, section 18(c) of the Missouri Constitution applies to all trials that occur after its enactment date, December 4, 2014, regardless of the date when the charged conduct occurred.[1]  The constitutional provision at issue, passed into law by Missouri voters in the 2014 general election, allows evidence of prior criminal acts, charged or uncharged, to be introduced at trial for crimes of a sexual nature involving a child.[2]  Tipler had argued that this provision operated as an ex post facto law because the alleged crime occurred before this constitutional amendment was passed into law by Missouri voters.[3]  The court’s holding is an affirmation of the long-held principle that laws that affect evidentiary rules only are not ex post facto because the “event” that they modify is the trial itself, not the conduct which gave rise to the trial.

I.  Facts and Holding
            Tipler was charged with one count of attempted statutory sodomy of a minor, arising out of conduct alleged to have occurred between September 1 and December 31, 2013.[4]  The State attempted to introduce evidence that Tipler had previously been convicted of endangering the welfare of a child in the first degree, which includes the language “by having sexual relations with the child.”[5]  Tipler contended that because the charged conduct is alleged to have occurred before the amendment was enacted, the provision could not be applied retrospectively to him.[6]
            While statutory and constitutional provisions that affect the criminality or punishment of the conduct being charged cannot be applied retrospectively, here, the court held that the amendment affects evidentiary rules only, and therefore applies to all trials occurring after its enactment.[7] 

II.  Legal Background
            On November 4, 2014, Missouri voters approved a constitutional amendment, enacting a new rule of evidence in criminal cases involving sexual abuse of a child.  The new rule of evidence is as follows:
Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age,           relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged.  The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.[8]
            Tipler’s first trial ended in a mistrial because the jury was unable to reach a unanimous decision, and a second trial was scheduled for May 2016.[9]  In February 2016, Tipler filed a Motion in Limine to Exclude Propensity Evidence of Prior Crimes and Prior Bad Acts, and the State subsequently filed a motion stating that it intended to offer evidence of Tipler’s previous acts under article I, section 18(c). [10]  The trial court denied Tipler’s motion.[11]  Tipler filed a motion to reconsider, which was overruled.[12]  Tipler was denied relief in the court of appeals for a writ of prohibition or mandamus.[13]  Tipler petitioned the Supreme Court of Missouri for a writ of prohibition to prohibit introduction of evidence of prior crimes.[14]
            The court issued a preliminary writ to consider the issue.[15]  While it is well settled that a defendant cannot challenge a pretrial evidentiary ruling by appeal[16] or by seeking an extraordinary writ,[17] the court perceived the issue presented by Tipler not as how the constitutional provision was applied to his motion, but as whether the trial court had any authority at all to apply the provision to his case.
III.  Instant Decision
            The issue before the court was whether article I, section 18(c) applies when the charged conduct is alleged to have occurred before the amendment took effect.  On one hand, Tipler is correct, but only to a point: constitutional or statutory provisions can only be applied prospectively.[18]  An exception exists for judicial decisions construing constitutional provisions, which can, in certain cases, be applied retroactively, when they concern new “watershed rules of criminal procedure.”[19]  But here, whether the provision was even being applied retroactively at all was the crux of the issue, therefore, Tipler’s argument failed.
            The court found that the key issue here was determining which “events” the new constitutional rule applied to.[20]  It could be either (1) the alleged criminal acts or (2) the trial arising out of such acts.[21]  Tipler’s argument was that the provision applies to the conduct underlying the charges, but he pointed to nothing in the language of the amendment to support this assertion.  There is nothing in the text that applies to criminality of the conduct: it does not make previously legal acts illegal, nor does it alter the punishment for certain crimes.[22]  What the provision does state is that in all “prosecutions for crimes of a sexual nature involving a victim under eighteen years of age,” certain evidence can be admitted, at the discretion of the court.[23]  In this way, the event that the provision applied to was the trial – not the underlying conduct.
            It has long been held that legislative changes to evidentiary rules are applied prospectively with regards to the date of the trial.  In State v. Thompson (Thompson I), Thompson’s murder conviction was overturned and the case was remanded by the court, because the trial court erred in admitting certain handwriting evidence.[24]  Before the new trial began, the legislature passed a law allowing such evidence to be admitted.[25]  The same evidence was admitted on retrial, and Thompson was convicted.[26]  In his second appeal, Thompson argued that the rules of evidence that were in force at the time the alleged crime occurred should govern.[27]  The court rejected this argument.[28]  Based on Judge Chase’s widely accepted classification of ex post facto laws stated in Calder v. Bull[29] and the U.S. Supreme Court’s reasoning in Hopt v. Utah (that “[s]uch regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged”),[30] the court in Thompson II held that the evidentiary rules enacted after the crime was allegedly committed are not ex post facto laws.[31]
            Here, the court held that because article I, section 18(c) only applies to the prosecution of the crime, not the conduct charged, it applies to all trials occurring after December 4, 2014, and therefore, Tipler’s petition was quashed.[32]  The court pointed out that it was not weighing in on whether or not the trial court properly applied article I, section 18(c) to the facts and circumstances of the case.[33]  As with any pretrial ruling, the trial court’s order is interlocutory and unreviewable.[34]  Tipler may object, and if convicted, appeal.[35]

IV.  Comment
            Article I, Section 9 of the U.S. Constitution states that “[n]o Bill of Attainder or ex post facto Law shall be passed” by Congress, and Article I, Section 10 applies the same limitation to state legislatures.[36]  The reasoning in the instant decision rests upon U.S. Supreme Court precedent spanning back over 220 years, so it is not surprising that an amendment which affects only an evidentiary rule can be applied to any trial occurring after the provision’s enactment, regardless of when the alleged crime occurred.  There are strong considerations in favor of applying evidentiary rules in this way, the primary reason being that it would be confusing and extremely problematic to expect the courts to apply the rules of evidence as they were in effect at the time of the alleged crime.  Yet despite the well-settled case law, there are some troubling implications that can arise in these situations.  Legislatures are free to enact new rules of evidence that affect a particular pending case – so long as it is not already in the trial phase – that broaden what is considered admissible evidence in order to secure a conviction.  In Carmell v. Texas, the U.S. Supreme Court reversed and remanded Carmell’s conviction for aggravated sexual assault against his stepdaughter on ex post facto grounds, because the Texas Legislature amended the evidentiary rules after the crime occurred but before trial.[37]  That case was different than the provision in Tipler in that the Court held that the Texas law involved lowering the evidentiary burden required to obtain a guilty conviction; whereas the Missouri provision only relates to “regulat[ing] [] the mode in which the facts constituting guilt may be placed before the jury.”[38] 
            The Court in Carmell went on to explain, in a footnote, that:
Ordinary rules of evidence . . . do not violate the Clause. . . . Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case.  More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.[39] 

Evidentiary rules, such as the Missouri provision, that allow propensity evidence to be admitted can hardly be called even-handed, and nobody would argue that that they may benefit either the State or the defense.  More importantly, while these rules may not directly lower the evidentiary burden for a conviction – such as the law passed in Carmell­­ – it is not improbable that they will, actually, “subvert the presumption of innocence,”[40] as propensity evidence of prior sex crimes involving children can have an overwhelming effect on this presumption.  Such rules could allow evidence to be admitted that will overcome the presumption of innocence to such an extent as to effectually lower the burden for a conviction, which would seem to place them within the gambit of ex post facto proscription.  Putting these concerns aside, Missouri courts have long held that defendants do not have any vested right in being afforded evidentiary rules from a certain point in time.[41]  So long as evidentiary rules do not offend the centuries-old Calder rules on what constitutes an ex post facto law, these rules will always be applied prospectively, as they relate to the trial, not the conduct.
- EB Wiles 

[1] State ex rel. Tipler v. Gardner, 506 S.W.3d 922, 924–28 (Mo. 2017) (en banc).
[2] Id. at 923.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 924.
[8] Mo. Const. art. I, § 18(c).
[9] Tipler, 506 S.W.3d at 923.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at 924.
[16] Id.
[17] Id.
[18] See State ex rel. Scott v. Dircks, 111 S.W. 1, 3 (Mo. 1908) (“The settled rule of construction in this state, applicable alike to the Constitutional and statutory provisions, is that . . . they are to be construed as having a prospective operation only.”). Handed down January 31, 2017.y, s to the trial, not the conduct.n what constitutes an ex post facto law, they will always be app
[19] See Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (noting that a “general bar on retroactivity” does not apply to decisions announcing new “substantive rules” or new “watershed rules of criminal procedure”); Tipler, 506 S.W.3d at 924.
[20] Tipler, 506 S.W.3d at 925.
[21] Id.
[22] Id.
[23] Mo. Const. art. I, § 18(c).
[24] State v. Thompson, 34 S.W. 31, 38 (Mo. 1896) [hereinafter Thompson I].
[25] State v. Thompson, 42 S.W. 949, 953 (Mo. 1897) [hereinafter Thompson II].
[26] Id. at 949–50.
[27] Id. at 951–52.
[28] Id. at 953.
[29] Calder v. Bull, 3 U.S. 386, 390–91 (1798) (noting that the following are ex post facto laws: (1) “[e]very law that makes an action[], done before the passing of the law, and which was innocent when done, criminal; and punishes such action”; (2) “[e]very law that aggravates a crime, or makes it greater than it was, when committed”; (3) “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed”; (4) “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender”).
[30] Hopt v. Utah, 110 U.S. 574, 589 (1884).
[31] Thompson II, 42 S.W. at 950.  See also State v. Kyle, 65 S.W. 763, 768 (Mo. 1901) (“[S]o far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. . . . [A]nd it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice . . . in existence when its facts arose.” (quoting In re Wright, 27 P. 565, 566 (Wyo. 1891))).
[32] State ex rel. Tipler v. Gardner, 506 S.W.3d 922, 928 (Mo. 2017) (en banc); see also Mo. Const. art. XII, § 2(b) (stating that article I, § 18(c) “shall take effect” thirty days after the voters approved it). 
[33] Tipler, 506 S.W.3d at 924.
[34] Id. at 928.
[35] Id.
[36] U.S. Const. art. I, § 9, cl. 3; id. § 10, cl. 1.
[37] Carmell v. Texas, 529 U.S. 513, 552–53 (2000).
[38] Tipler, 506 S.W.3d at 926 (quoting Hopt v. Utah, 110 U.S. 574, 589 (1884)).
[39] Carmell, 529 U.S. at 533 n.23 (citation omitted).
[40] Id.
[41] Tipler, 506 S.W.3d at 928.