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
[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.”).
[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.
[21] Id.
[22] Id.
[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”).
[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).
[34] Id. at 928.
[35] Id.
[39] Carmell, 529 U.S. at 533 n.23 (citation omitted).
[40] Id.
