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, not even to produce
a result that the legislature likely intended.25
Although
absent from the reasoning in the instant 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.
[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.
