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State ex rel. Tipler v. Gardner

Supreme Court of Missouri, En Banc

January 31, 2017

STATE EX REL. KENDRICK TIPLER, Relator,
v.
THE HONORABLE MICHAEL GARDNER, Respondent.

         ORIGINAL PROCEEDING IN PROHIBITION

          PAUL C. WILSON, JUDGE

         This Court issued a preliminary writ of prohibition to consider Relator Kendrick Tipler's claim that the new rule of evidence set forth in the 2014 amendment to article I, section 18(c) of the Missouri Constitution could not be applied in his upcoming trial because the crimes with which he is charged occurred before the effective date of that constitutional amendment. The Court now quashes its preliminary writ and holds that article I, section 18(c) applies to all trials occurring on or after the effective date of the amendment, regardless of when the crimes are alleged to have occurred. Claims that the trial court applied this new rule of evidence improperly, or that a proper application of this rule nevertheless violates the defendant's substantive rights under the state or federal constitutions, are not before the Court in this proceeding. Such objections must be properly raised and preserved during trial and properly presented on appeal if the defendant is convicted.

         Background

         Tipler is charged with one count of attempted statutory sodomy arising out of conduct alleged to have occurred on or between September 1 and December 31, 2013. Tipler's first trial on this charge ended in a mistrial because the jury was unable to reach a unanimous decision. A second trial was scheduled for May 2016.

         On February 19, 2016, Tipler filed a "Motion in Limine to Exclude Propensity Evidence, Evidence of Prior Crimes, and Evidence of Prior Bad Acts." On February 23, apparently in response to Tipler's motion, the state filed a motion stating that it intended to offer evidence of Tipler's prior criminal acts at trial under article I, section 18(c). On March 6, 2016, the trial court heard both motions and took them under advisement. Shortly thereafter, the trial court issued its order stating:

The Court grants the State's Motion to Produce "Prior Criminal Acts" in the State's Case-in-Chief Pursuant to Missouri Constitution Article 1 Section 18(c). The Court finds that the Defendant's certified prior conviction for Endangering the Welfare of a Child in the First Degree, which includes the language "by having sexual relations with the child, " is relevant and admissible for the purpose of corroborating the alleged victim's testimony or demonstrating the Defendant's alleged propensity to commit the crime with which he is presently charged. The Court finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Defendant's Motion … is denied.

         Tipler filed a motion to reconsider, which the trial court overruled. After being denied relief in the court of appeals for a writ of prohibition or mandamus, Tipler petitioned this Court for a writ of prohibition to prohibit the trial court from admitting evidence at trial concerning Tipler's prior conviction and related conduct.

         A defendant in a criminal case cannot challenge a pretrial evidentiary ruling by appeal, see State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992) ("motion in limine, in and of itself, preserves nothing for appeal"), or by seeking an extraordinary writ, see State ex rel. Westfall v. Gerhard, 642 S.W.2d 679, 681 (Mo. App. 1982) ("The state thus complains of anticipated error and our ruling on the merits would constitute an advisory opinion only."). Instead, the defendant's objections must be timely raised at trial, preserved for appeal, and - if the defendant is convicted - properly presented on appeal. Purlee, 839 S.W.2d at 592.

         But this Court perceives Tipler's claim to be quite different. Tipler is not challenging how the trial court applied article I, section 18(c) to the facts and circumstances of his particular case. Instead, he challenges the trial court's authority to apply it at all. Tipler claims that article I, section 18(c) cannot apply to any trial in which the charged conduct is alleged to have occurred prior to December 4, 2014, i.e., the date on which article I, section 18(c) took effect. The Court issued a preliminary writ of prohibition to consider this question.

         The Court rejects Tipler's claim and holds that the new rule of evidence adopted in article I, section 18(c) applies to all trials occurring on or after December 4, 2014, when this new provision took effect. The question of the way in which the trial court anticipates applying article I, section 18(c) to the facts and circumstances in Tipler's case, however, is premature. It is not before the Court in this proceeding, and the Court expresses no opinion on that question.

         Analysis

         On November 4, 2014, Missouri voters approved a constitutional amendment enacting a new rule of evidence in criminal cases. This amendment took effect December 4, 2014. See Mo. Const. art. XII, § 2(b) ("If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election."). This new rule of evidence states, in its entirety:

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 ...

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