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STATE of Missouri, EX REL. Jessica J. JONES, Gentry County Prosecuting Attorney, Relator, v. The Honorable Roger PROKES, Judge of the Circuit Court of Gentry County, Missouri, Division 1, Respondent.
Due to two earlier felony convictions, Michael E. Wood was placed on supervised probation. A condition of his probation was that he attend a substance-abuse treatment program. The State contends that Wood provided his probation officer with falsified attendance sheets from a treatment program. As a result, it charged him in the Circuit Court of Gentry County with sixteen felony counts of forgery, and with two felony counts of tampering with a judicial officer.
Wood filed a motion to exclude testimony from his probation officer, and the allegedly falsified attendance sheets themselves, on the basis that the evidence was privileged under §§ 549.500 and 559.125.1 The circuit court sustained the motion. Jessica J. Jones, the Gentry County Prosecuting Attorney, filed a Petition for Writ of Mandamus in this Court, contending that the circuit court erred in sustaining Wood's motion to exclude evidence. Jones argues that the privilege statutes should not be read to exclude evidence of Wood's alleged commission of crimes in the course of his interactions with his probation officer.
We issued a preliminary writ of mandamus. We conclude that §§ 549.500 and 559.125 do not prevent the admission of evidence establishing that Wood's communications with his probation officer themselves constituted crimes. We accordingly make our writ of mandamus permanent, and direct the circuit court to rescind its order excluding evidence.
On August 4, 2016, the Circuit Court of Gentry County sentenced Wood in Case No. 15GE-CR00003-01 to four years’ imprisonment, after Wood pleaded guilty to two felonies: driving while intoxicated; and driving while suspended or revoked. Pursuant to § 559.115.3, the circuit court recommended that Wood be placed in a 120-day institutional treatment program. After receiving a favorable report concerning Wood's conduct in the treatment program, the circuit court entered an order on November 15, 2016, placing Wood on five years’ supervised probation. One of the special conditions of Wood's probation was that he “shall attend an aftercare program focusing on substance abuse.”
On March 8 and March 28, 2018, Wood allegedly provided his probation officer with attendance sheets from Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”) programs, showing that he had attended AA and NA meetings on sixteen different occasions in 2017 and 2018.
On April 16, 2018, Wood was charged in the Circuit Court of Gentry County in Case No. 18GE-CR00038-02 with eighteen felony counts: sixteen counts of forgery, in violation of § 570.090; and two counts of tampering with a judicial officer, in violation of § 575.095. The State alleged in its felony complaint that Wood forged signatures and other endorsements on the AA and NA attendance sheets. The complaint also alleged that, by giving the forged attendance records to his probation officer, Wood committed the offense of tampering with a judicial officer, because he had attempted to influence his probation officer in the performance of her official duties by deception.
Trial was set to commence on November 16, 2020. On November 3, 2020, Wood filed a motion to exclude testimony from his probation officer at trial, as well as any other evidence derived from his interactions with her (including the allegedly falsified attendance sheets). Wood contended that the evidence was privileged from disclosure under §§ 549.500 and 559.125.
A hearing was held on Wood's motion on November 12, 2020. On November 13, 2020, the circuit court entered its order sustaining the motion and ordering that the State “be prohibited from eliciting testimony or evidence from [Wood's probation officer], regarding information obtained by her in her capacity as a Probation Officer, regarding AA/NA endorsements presented to her by Defendant.”
Jones filed her Petition for Writ of Mandamus in this Court on January 11, 2021.2 Respondent filed suggestions in opposition on January 25, 2021. On January 28, 2021, this Court entered its preliminary writ of mandamus, staying proceedings in the underlying case, and setting the writ proceeding for briefing and oral argument.3
Mandamus is a discretionary writ that is appropriate when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal. “Ordinarily, mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers.” However, if the respondent's actions are wrong as a matter of law, then she has abused any discretion she may have had, and mandamus is appropriate.
State ex rel. Lovelace v. Mennemeyer, 421 S.W.3d 555, 556 (Mo. App. E.D. 2014) (citing and quoting State ex rel. Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. 2012); other citation omitted). “A litigant asking relief by mandamus must allege and prove that she has a clear, unequivocal, specific right to a thing claimed.” State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. 2019) (citations and internal quotation marks omitted).
The application of privileges, and the interpretation of statutes, present questions of law. State ex rel. Behrendt v. Neill, 337 S.W.3d 727, 729 (Mo. App. E.D. 2011); Richard v. Mo. Dep't of Corr., 162 S.W.3d 35, 37 (Mo. App. W.D. 2005). If the circuit court's exclusion of the probation officer's testimony, and of the allegedly forged attendance sheets, misconstrues the privilege recognized by §§ 549.500 and 559.125.1, then that decision was “wrong as a matter of law,” and mandamus relief is appropriate.
The State has no adequate remedy by appeal. The State would not be entitled to appeal following a trial in which the challenged evidence was excluded and Wood was acquitted, because the State is prohibited from appealing from final judgments in criminal cases “in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant.” § 547.200.2. The State is barred by double jeopardy principles from obtaining a new trial based on the erroneous exclusion of evidence in a trial which resulted in a defendant's acquittal. See, e.g., Smalis v. Pa., 476 U.S. 140, 145-46, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); Az. v. Manypenny, 451 U.S. 232, 246, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) (“the constitutional ban against double jeopardy ․ bars an appeal by the prosecutor following a jury verdict of acquittal”).
The State also has no avenue for an interlocutory appeal of the circuit court's evidentiary ruling. Section 547.200.1(3) provides that “[a]n [interlocutory] appeal may be taken by the state ․ from any order or judgment the substantive effect of which results in ․ [s]uppressing evidence.” But the circuit court's ruling in this case did not involve “suppress[ion] [of] evidence” in the relevant sense. We have explained that
[t]he right to appeal under section 547.200(3) is “linked directly” to the five bases for filing a suppression motion set forth in section 542.296. Each ground for suppression under section 542.296.5 involves an illegal search and seizure. Consequently, the State's right to appeal under section 547.200 “has been consistently circumscribed to those cases where illegally obtained evidence is at issue.”
An order suppressing evidence is not the same as an order excluding evidence based on a rule of evidence. “Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained.” ․ “In essence, evidence that is excluded for procedural reasons or for violation of the rules of evidence or for any other reason not having its genesis in the argument that it was illegally obtained is not appealable by the State.”
State v. Woodworth, 413 S.W.3d 678, 682 (Mo. App. W.D. 2013); accord State v. Lilly, 410 S.W.3d 699, 701-03 (Mo. App. W.D. 2013); State v. Moad, 294 S.W.3d 83, 86-88 (Mo. App. W.D. 2009).
In this case, the circuit court entered an order excluding evidence of Wood's communications with his probation officer, not because the evidence had been illegally obtained, but because the court believed the evidence was subject to a statutory privilege. This writ does not concern the suppression of illegally obtained evidence. The State accordingly had no available remedy by appeal, and a petition for writ of mandamus was the appropriate method for the prosecution to seek our review of the circuit court's exclusion order.
Resolution of this case depends on the interpretation of §§ 549.500 and 559.125, and the interplay of those privilege statutes with the statutes criminalizing forgery and tampering with a judicial officer.
We begin by emphasizing certain fundamental canons of statutory interpretation that guide our analysis. Our “primary goal” in interpreting any statute “is to give effect to legislative intent as reflected in the plain language of the statute.” State ex rel. Bowman v. Inman, 516 S.W.3d 367, 369 (Mo. 2017) (citation and internal quotation marks omitted).
Where multiple statutes are implicated in particular factual circumstances, we must attempt to harmonize, and give effect to, all of the relevant statutes. “ ‘When two statutory provisions covering the same subject matter are unambiguous standing separately but are in conflict when examined together, a reviewing court must attempt to harmonize them and give them both effect.’ ” State ex rel. Hillman v. Beger, 566 S.W.3d 600, 605 (Mo. 2019) (quoting Earth Island Inst. v. Union Elec. Co., 456 S.W.3d 27, 33 (Mo. 2015)); accord Roesing v. Dir. of Revenue, 573 S.W.3d 634, 638-39 (Mo. 2019) (“Under the doctrine of in pari materia, statutes relating to the same subject matter should be construed to achieve a harmonious interpretation.” (citation omitted)). In particular, we should avoid interpretations of statutes which leave a criminal statute “incapable of being enforced,” Leiser v. City of Wildwood, 59 S.W.3d 597, 604 (Mo. App. E.D. 2001) (quoting City of Joplin v. Joplin Water Works Co., 386 S.W.2d 369, 373–74 (Mo. 1965)), or that “render some phrases mere surplusage.” Middleton v. Mo. Dep't of Corr., 278 S.W.3d 193, 196 (Mo. 2009).
The Missouri Supreme Court has emphasized that “[a] court will look beyond the plain meaning of the statute ․ when the language is ambiguous or would lead to an absurd or illogical result.” Akins v. Dir. of Revenue, 303 S.W.3d 563, 565 (Mo. 2010) (citing Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. 1998)). When engaging in statutory interpretation, “we are to presume a logical result, as opposed to an absurd or unreasonable one,” and “[w]e are always led to avoid statutory interpretations that are unjust, absurd, or unreasonable.” State v. Slavens, 375 S.W.3d 915, 919 (Mo. App. S.D. 2012) (citations and internal quotation marks omitted); see also West v. State, 605 S.W.3d 607, 612 (Mo. App. W.D. 2020).
With these principles in mind, we turn to the text of the relevant statutes. Section 549.500 provides:
All documents prepared or obtained in the discharge of official duties by any member or employee of the board of probation and parole shall be privileged and shall not be disclosed directly or indirectly to anyone other than members of the board and other authorized employees of the department․ The board may at its discretion permit the inspection of the report or parts thereof by the offender or his attorney or other persons having a proper interest therein.
And § 559.125.2 states:
Information and data obtained by a probation or parole officer shall be privileged information and shall not be receivable in any court. Such information shall not be disclosed directly or indirectly to anyone other than the members of a parole board and the judge entitled to receive reports, except the court or the board may in its discretion permit the inspection of the report, or parts of such report, by the defendant, or offender or his attorney, or other person having a proper interest therein.
This Court has explained that the purpose of § 559.125.2 (and presumably, of § 549.500) is to foster the relationship between a probation officer and an offender, by assuring the offender “that information learned by the probation officer will be held in confidence, subject only to specific exceptions.” Richardson v. Sherwood, 337 S.W.3d 58, 65 (Mo. App. W.D. 2011).
The privilege statutes are not the only statutes at issue in this case, however. Section 575.095.1, one of the statutes under which Wood was charged, provides that
[a] person commits the offense of tampering with a judicial officer if, with the purpose to harass, intimidate or influence a judicial officer in the performance of such officer's official duties, such person:
(1) Threatens or causes harm to such judicial officer or members of such judicial officer's family;
(2) Uses force, threats, or deception against or toward such judicial officer or members of such judicial officer's family;
(3) Offers, conveys or agrees to convey any benefit direct or indirect upon such judicial officer or such judicial officer's family; [or]
(4) Engages in conduct reasonably calculated to harass or alarm such judicial officer or such judicial officer's family, including stalking pursuant to section 565.225 or 565.227.
The statute specifically defines a protected “judicial officer” to include a “state probation or parole officer.” § 575.095.2. Similarly, § 570.090.1 defines forgery to include the act of “possess[ing] for the purpose of using as genuine, or transfer[ring] with the knowledge or belief that it will be used as genuine, any writing or other thing,” which has been made or altered “so that it purports to have been made by another ․ or by authority of one who did not give such authority,” “with the purpose to defraud.”
Like the statutes establishing the probation-officer privilege, the law prohibiting tampering with a judicial officer serves important purposes. It “seek[s] to assure the public that judges confine their decisions to the evidence and law applicable to a case rather than threats and intimidation.” State v. Cella, 32 S.W.3d 114, 118 (Mo. 2000). The purpose of the statute is to safeguard the “independence and decision-making ability” of judicial officers. State v. Hause, 371 S.W.3d 836, 840 (Mo. App. W.D. 2012). Consistent with free-speech rights, § 575.095.1 prohibits speech which “offends the State's legitimate interest in securing its judicial proceedings.” State v. McGirk, 999 S.W.2d 298, 303 (Mo. App. W.D. 1999).
To hold that §§ 549.500 and 559.125 create an absolute privilege surrounding all communications between a probation officer and an offender, and all information learned by a probation officer, would immunize from prosecution many acts which the legislature intended to prohibit when it enacted the forgery and tampering-with-a-judicial-officer statutes. Probation officers are specifically included within the definition of “judicial officers” who are protected from tampering by § 575.095. Many of the acts which could constitute illegal “tampering” would involve communications between an offender and their probation officer: issuing threats; using deception; offering or agreeing to provide a benefit; and many acts “calculated to harass or alarm such judicial officer.” § 575.095.1(4). Similarly, the crime of forgery very frequently involves an act by which an offender provides false or deceptive information to the victim. Yet according to Wood, the communications by which an offender would frequently commit the offenses of tampering or forgery against a probation officer would be immune from prosecution, since evidence of the illegal communications themselves would be inadmissible. It would be an absurd and unreasonable result to interpret the privilege statutes to give an offender license to attempt to deceive, harass, threaten, or bribe his or her probation officer with impunity.
The privilege recognized in §§ 549.500 and 559.125 can be harmonized with the forgery and tampering-with-a-judicial-officer statutes, and meaningful effect can be given to all of the relevant statutes, by excluding from the probation-officer privilege those communications or information which themselves constitute the commission of a criminal offense. We emphasize that the present case does not involve communications between Wood and his probation officer, or information provided by Wood to his probation officer, which allegedly constitutes evidence of a separate crime committed by Wood. Instead, this is the unusual case in which Wood's interactions with his probation officer constitute the crimes themselves. The privilege statutes cannot be read to make it impossible to enforce the forgery and tampering-with-a-judicial-officer statutes, in the infrequent circumstances where the two sets of statutes intersect in this way.
It is significant that the statutes creating the privilege for information possessed by probation officers (§§ 549.500 and 559.125), and the statute criminalizing tampering with a judicial officer (§ 575.090.1), were passed in the same legislative session by the same General Assembly, and became effective on the same day. The proposition that statutes were “intended to be consistent and harmonious ․ is particularly applicable when the two acts are passed at the same legislative session.” Rothschild v. State Tax Com'n, 762 S.W.2d 35, 37 (Mo. 1988); see also State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W.2d 835, 839 (Mo. 1934) (“It is not to be presumed that the same body of [legislators] would pass conflicting and incongruous acts.”).
We also note that, by its terms, the probation-officer privilege embodied in §§ 549.500 and 559.125.2 is not absolute. To the contrary, both statutes specify that “reports or parts thereof” which are subject to the privilege may be provided to “other persons having a proper interest therein.” See Webb v. State, 334 S.W.3d 126, 130-31 n.6 (Mo. 2011) (where defendant contends that he was incorrectly advised concerning the minimum prison term before pleading guilty, and State contends that the Sentencing Assessment Report (“SAR”) reviewed by the defendant accurately reflects the minimum term, “any appellate court considering the case below has ‘a proper interest therein’ to view the SAR”); State v. Townsel, 564 S.W.3d 731, 741 n.6 (Mo. App. W.D. 2018) (observing ex gratia that, “because Williams was on probation in Clay County, the prosecutor qualified as an ‘other person having a proper interest’ in Williams's probation violation reports under Section 559.125.2”).
Missouri's courts have recognized in other contexts that statutory privileges cannot be invoked to shield criminal activity from prosecution. “It is settled in Missouri that though a ‘privileged communication may be a shield of defense ․ it cannot be used as a sword or weapon of offense to enable persons to carry out improper conduct.’ ” State ex rel. Koster v. Cain, 383 S.W.3d 105, 121 (Mo. App. W.D. 2012) (citations omitted).
For example, State v. Heistand, 708 S.W.2d 125 (Mo. 1986), involved prosecution of a husband for robbery and assault. At the time, the spousal privilege statute, § 546.260, RSMo 1978, stated in absolute terms that “in no case shall husband or wife ․ be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.” Despite the seemingly unqualified nature of the statutory privilege, the Missouri Supreme Court held that the privilege did not require the exclusion of a letter written by the defendant-husband to his wife, in which he asked her to persuade a third party to provide perjured alibi testimony in the husband's case. The Court refused to read the spousal privilege to shield communications which themselves constituted a crime, or contemplated future criminal conduct.
The letter clearly suggests that the defendant's wife should procure one “Jack” to commit perjury at the defendant's trial, so as to provide an alibi. Subornation of perjury is a felony ․ in Missouri․ The defendant also enlists his wife as a co-conspirator in the subornation enterprise. We believe that, as a matter of public policy, the husband-wife privilege should not apply to communications relating to contemplated future crime. ․ The public interest in preventing crime far outweighs the possible harm to the marital relationship.
Id. at 126 (footnotes omitted). The Court recognized this exception to the spousal privilege, even though the statute defining the privilege did not itself contain exceptions for communications which constitute a crime, or which contemplate future crime.
The dissent points out that the marital privilege emanates from a statute, § 546.260, RSMo 1978, ․ and argues that this statute should be subject only to such exceptions as the legislature chooses to enact. The courts, however, have not applied this statute ․ in absolute terms, but rather have created a number of exceptions based on good cause and public policy, in the conviction that the legislature did not intend absolute reading․ The attorney-client privilege is also codified in Missouri ․ but our courts recognize the exception [involving contemplated future crime].
Id. at 126 (footnote omitted).
Following Heistand, this Court recognized that “[t]he [spousal privilege] statute's prohibitions against the disclosure of ‘confidential communications,’ ․ has not been construed to be absolute,” and that “threats of violence by one spouse against the other are not considered confidential communications within the meaning of § 546.260.” State v. Wolford, 754 S.W.2d 875, 882 (Mo. App. W.D. 1988); see also, e.g., State v. Applegate, 668 S.W.2d 624, 635 (Mo. App. S.D. 1984) (“The defendant's threats to do violence to his former spouse were not confidential communications within the meaning of § 546.260.”; citing State v. Johnson, 586 S.W.2d 437, 441 n.3 (Mo. App. E.D. 1979)); State v. Brydon, 626 S.W.2d 443, 452-53 (Mo. App. W.D. 1981) (marital privilege did not apply “to prevent the testimony of the wife against the husband for injury done or threatened to her person”).
Similarly, the Missouri Supreme Court “has not held that the attorney-client privilege is absolute, recognizing a crime-fraud exception to the attorney-client privilege for underlying criminal conduct.” State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 607 (Mo. 1993). The Court explained:
It is true that after a crime has been committed, the accused or guilty person may freely consult and even disclose his guilt to his attorney, in order to prepare his defense. Under such circumstances, the law puts the seal of secrecy upon such communications. But ․ a person [cannot] employ an attorney for the purpose of aiding and abetting him in the commission of a future crime or fraud, and thereby seal the lips of his lawyer to secrecy and thus prevent the exposure or detection of such crime or fraud․
Id. (quoting Gebhardt v. United Rys. Co., 220 S.W. 677, 679 (Mo. 1920)); accord Burger v. Crocker, 392 S.W.2d 640, 644-45 (Mo. App. 1965) (“privileged communication may be a shield of defense as to crimes already committed, but it cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society”; quoting Gebhardt, 220 S.W. at 679).4
The Missouri Supreme Court addressed an analogous issue in State v. Churchill, 454 S.W.3d 328 (Mo. 2015). In Churchill, the defendant contended that she could not be prosecuted for perjury based on testimony she gave at a protective-custody hearing for one of her children, because her testimony was taken in the earlier proceeding in violation of her constitutional privilege against self-incrimination. The Supreme Court disagreed:
[E]ven assuming that Churchill had (and properly asserted) a constitutional privilege against self-incrimination during the initial protective custody hearing, and even assuming that the judge violated this privilege by making Churchill testify, this privilege does not entitle her to commit perjury or prohibit the state from using her false testimony against her to prove that crime. The privilege applies only to a statement that constitutes an admission about a completed (or ongoing) crime, not a statement that constitutes a criminal act in itself, e.g., perjury.
Id. at 339.
Respondent emphasizes that the spousal privilege and the attorney-client privilege had their origins in common law, and that the caselaw interpreting them is accordingly distinguishable. But both privileges were codified in statute at the time of the decisions cited in the text. Moreover, in Heistand, 708 S.W.2d at 126, the Missouri Supreme Court rejected precisely the argument Respondent makes here: that the legislature intended the statutory privilege to be absolute, and that the courts had no authority to recognize exceptions not expressly set forth in the privilege statute itself.
Accordingly, we hold that the probation-officer privilege established by §§ 549.500 and 559.125 does not prevent the introduction into evidence of a communication with, or information provided to, a probation officer, where the communication or provision of information “constitutes a criminal act in itself.” Churchill, 454 S.W.3d at 339. The circuit court erred as a matter of law in excluding the probation officer's testimony, or the allegedly falsified documents Wood provided to her, on the basis of the privilege.
We issue our permanent writ in mandamus directing the circuit court to vacate its order sustaining Wood's motion to exclude testimony and evidence based on the privilege recognized in §§ 549.500 and 559.125, and to instead enter its order denying that motion.
1. Unless otherwise indicated, statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2017 Supplement.
2. The State filed a notice of appeal from the circuit court's exclusion order on November 13, 2020, which was docketed in this Court as No. WD84156. The appeal was dismissed for failure to prosecute on February 4, 2021, after we issued our preliminary writ of mandamus in this proceeding. As we explain in § I of the Discussion which follows, the circuit court's exclusion order was not appealable, and the prosecution's proper remedy was through the current writ proceeding.
3. Respondent has moved to strike Jones’ Exhibit B, which consists of the treatment program attendance sheets allegedly forged by Wood and provided to his probation officer. It appears that the attendance sheets were not submitted to Respondent in connection with his consideration of Wood's motion to exclude evidence. Because the attendance sheets were not part of the circuit court record, the motion to strike is granted. We observe that the actual content or appearance of the attendance sheets is not relevant to our disposition of Jones’ writ petition.
4. In Peabody Coal, the Court held that, to invoke this “crime-fraud exception” to the attorney-client privilege, (1) “the seeking party must make a prima facie showing that the privileged party has committed a crime or fraud”; and (2) “the seeking party must demonstrate that the privileged information bears a direct and contemporaneous relationship to the crime or fraud alleged.” 863 S.W.2d at 608 (citations omitted). Wood did not argue in the circuit court that the State had failed to make an adequate showing to invoke a similar crime-fraud exception to the probation-officer privilege. Instead, his argument was only that no such exception should be recognized.
Alok Ahuja, Judge
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Docket No: WD 84255
Decided: April 27, 2021
Court: Missouri Court of Appeals, Western District.
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