Opinion
No. WD 61714
July 15, 2003 Amended July 28, 2003
Appeal from the Circuit Court of Jackson County, Missouri, Honorable Edith L. Messina, Judge.
Jeremiah W. (Jay) Nixon, John M. Morris, III, and Breck K. Burgess, Jefferson City, MO, for Respondent.
Sarah W. Patel, Kansas City, MO, for Appellant.
Before Robert G. Ulrich, P.J., Victor C. Howard and Thomas H. Newton, JJ.
I.Factual and Procedural Background
Mr. John D. Couts was charged and convicted of second-degree felony murder pursuant to section 565.021 and armed criminal action pursuant to section 571.015. We view the evidence in the light most favorable to the verdict.
All statutory references are to RSMo 2000, unless otherwise indicated.
In November 1999, Mr. David Beck, the victim, lived in his home with his wife, Cathy Beck, and their three children: Kennyboy, Sissy, and Brandon. Mr. Joe Green, a friend of Kennyboy's, arrived at the house, and they agreed to go to Mr. Couts' house. Kennyboy, Sissy, and Sissy's friend, Agita Harris, followed Mr. Green in Sissy's car.
When they all arrived at Mr. Couts' home, Mr. Couts, John Camacho, Mr. Couts' father, and some other unidentified individuals were present. This group then sat around for about an hour-and-a-half, smoking marijuana and talking about boxing. Mr. Green and Mr. Camacho had both boxed in the past, and they were bragging about their boxing history and who was more skilled in the sport.
Eventually, when Kennyboy, Sissy, and Ms. Harris decided to leave Mr. Couts' residence, Mr. Green was still conversing with Mr. Camacho. About ten to fifteen minutes after they arrived home, Mr. Green appeared. Shortly thereafter, Mr. Couts and Mr. Camacho arrived in Mr. Camacho's blue Chevrolet Caprice. Individuals inside the home came out on the porch.
Mr. Green and Mr. Camacho began having an argument, which escalated into a physical fight. After a few minutes, Mr. Camacho got back into the Caprice with Mr. Couts, and the two individuals left the scene.
Mr. Couts then traveled to an unspecified location, picked up a gun, and he and Mr. Camacho returned to the Beck's home. Mr. Camacho was driving, and Mr. Couts was in the passenger seat. At that time, Kennyboy looked out a window of the home and saw that the two had returned. He then went to his parents' bedroom to inform them of this development. In light of this information, Mr. Beck went to the living room and looked out the window. At that time, Mr. Couts fired several shots toward the living room window. Mr. Beck was hit twice and died as a result of the gunshot wounds.
The Beck family helped the police identify Mr. Couts and Mr. Camacho, and both parties were eventually apprehended.
The State indicted Mr. Couts for felony murder in the second degree and armed criminal action (ACA).
Mr. Camacho pled guilty to voluntary manslaughter, pursuant to a plea agreement with the State. The plea agreement required Mr. Camacho to testify against Mr. Couts.
After the trial in this matter, the jury returned with guilty verdicts on both counts. The trial court sentenced Mr. Couts to consecutive sentences of life imprisonment on both counts. This appeal followed.
Mr. Couts brings two points on appeal. In Point I, Mr. Couts argues that the trial court plainly erred when it sentenced him to terms of imprisonment on both the second degree felony murder charge and the ACA charge "because it violated Mr. Couts's rights to due process of the law and to be free from double jeopardy . . . in violation of Section 571.015, RSMo 2000, (prevents convictions for both armed criminal action and unlawful use of a weapon for events stemming from a single action) . . . because the felony of unlawful use of a weapon is the gravamen of the felony murder conviction and double jeopardy precludes a conviction for armed criminal action based upon the offense of unlawful use of a weapon."
In Point II, Mr. Couts further alleges that the "trial court committed plain error when it presided over John Camacho's immunity hearing and John Couts' subsequent criminal trial, in violation of Section 491.205 . . . because the Court caused a structural defect when it failed to abide by Missouri's statutory requirement that the judge hearing the application for witness immunity may not preside over the subsequent criminal trial for which the immunity applies."
II. LEGAL ANALYSIS
A. Double Jeopardy: Felony Murder and Armed Criminal Action
Conceding that he has failed to preserve his first point for review, Mr. Couts requests that we review it for plain error. Rule 30.20 gives us the discretion to review "plain errors affecting substantial rights" when we find that "manifest injustice or miscarriage of justice has resulted therefrom." Although a defendant generally must raise a double jeopardy claim at the earliest opportunity or risk waiving his claim, we will exercise plain error review in an exceptional case such as this one, where "we can determine from the face of the record that the court had no power to enter the conviction." State v. Elliott, 987 S.W.2d 418, 421 (Mo.App.W.D. 1999).
Having examined the face of the record in this case, we conclude that the trial court had no power to enter the conviction against Mr. Couts for armed criminal action because doing so violated his right to be free from double jeopardy. The double jeopardy clause protects a defendant against multiple punishments for the same offense imposed in a single proceeding. Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322 (1989). The protection is limited to ensuring that the total punishment does not exceed that authorized by the legislature, in which lies the substantive power to define crimes and prescribe punishments. Id.
To understand why this case presents a double jeopardy problem, we must bear in mind the nature of the crimes brought against Mr. Couts: armed criminal action and felony murder. Both of these crimes require the existence of an underlying — or predicate — — offense. See sections 565.021.1(2) (felony murder) and 571.015.1 (armed criminal action).
In the case of armed criminal action, however, the General Assembly specifically has prohibited the State from relying upon the underlying crime of unlawful use of a weapon as the predicate offense for an armed criminal action charge. Ivy v. State, 81 S.W.3d 199, 206-07 (Mo.App. W.D. 2002). Accordingly, "[w]hen both the armed criminal action and unlawful use of a weapon convictions are based upon the 'same conduct,' cumulative sentences place the defendant in double jeopardy." Id. at 207.
Although the State relied upon felony murder as the predicate offense for the armed criminal action charge against Mr. Couts in this case, a double jeopardy problem still exists because the felony murder charge itself was predicated upon the unlawful use of a weapon. See Ivy, 81 S.W.3d at 207-08.
We addressed a substantially similar case in Ivy, where we vacated a defendant's conviction and sentence for armed criminal action after concluding that his convictions for armed criminal action and felony murder predicated upon the unlawful use of a weapon violated the double jeopardy clause. 81 S.W.3d at 208. We reasoned that where convictions arise from the same conduct, the State cannot charge a defendant with armed criminal action and felony murder based upon the unlawful use of a weapon, because felony murder in that case necessarily depends upon the very same predicate offense that the General Assembly excluded as a predicate offense for armed criminal action: the unlawful use of a weapon. Id. at 207. Rejecting the State's argument to the contrary, we said:
Here, the State argues that the armed criminal action charge was predicated upon felony murder and not unlawful use of a weapon. In this case, however, there is no felony murder charge without the act of unlawful use of a weapon. The intent to commit the underlying felony is the gravamen of the felony murder offense. . . . The underlying felony supplies the requisite mens rea for second-degree felony murder.
Id. (internal quotation marks and citations omitted).
We reaffirm our holding in Ivy. By explicitly prohibiting the State from predicating an armed criminal action charge upon the unlawful use of a weapon, the General Assembly also prohibited the State from predicating an armed criminal action charge upon the commission of felony murder where unlawful use of a weapon is the predicate for the felony murder charge. The General Assembly has recognized that certain conduct may not give rise to an armed criminal action charge. Such conduct includes the unlawful use of a weapon. See section 571.015.4. Because the same conduct is indispensable to the felony murder charge in this case, the State cannot rely upon felony murder to support the armed criminal action charge here.
We recognize that our decision in State v. Coleman, 949 S.W.2d 137, 149 (Mo.App.W.D. 1997), may have fostered confusion and uncertainty about this issue by suggesting that an armed criminal action charge is compatible with a felony murder charge in such circumstances. Therefore, to the extent that Coleman contradicts what we said about the double jeopardy issue in Ivy or what we have said about it in this case, Coleman is overruled.
This opinion has been reviewed and approved by the Court en banc.
Because the armed criminal action charge against Mr. Couts was based upon felony murder, it necessarily — and improperly — depended for its existence upon the underlying offense of unlawful use a weapon. Accordingly, we vacate Mr. Couts' conviction and sentence for armed criminal action.
B. Immunity pursuant to Section 491.205
In Point II, Mr. Couts alleges that the "trial court committed plain error when it presided over John Camacho's immunity hearing and John Couts's subsequent criminal trial, in violation of Section 491.205 . . . because the Court caused a structural defect when it failed to abide by Missouri's statutory requirement that the judge hearing the application for witness immunity may not preside over the subsequent criminal trial for which the immunity applies." Section 491.205 provides as follows:
1. In the case of any individual who has been or may be called to testify or provide other information at any proceeding ancillary to or before a circuit or associate circuit court or grand jury of the state of Missouri, the judge of the circuit in which the proceeding is or may be held may issue, in accordance with subsection 2 of this section, upon the written request of the prosecuting attorney an order requiring such individual to give testimony or provide other information which the individual refuses to give or provide on the basis of the individual's privilege against self-incrimination. When such an order is issued, the witness may not refuse to comply with the order on the basis of the witness's privilege against self-incrimination, but after complying with the order and giving the testimony or producing the evidence compelled by the order, no such person shall be criminally prosecuted or subjected to any criminal penalty for or on account of any act, transaction, matter or thing which is the subject matter of the inquiry in which the person testifies or produces evidence, except a prosecution for perjury, giving a false or misleading statement or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order.
2. A prosecuting attorney may be granted an order compelling a witness to testify and produce evidence upon the approval of a verified application for witness immunity heard by a judge of the circuit court. The judge hearing the application for witness immunity may not preside over a grand jury proceeding where such testimony is given, and may not hear the subsequent criminal trial or any ancillary proceeding for which the immunity applies. Such application shall offer proof that:
(1) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the individual's privilege against self-incrimination; and either:
(2) The testimony or other information to be provided by such individual is necessary to the investigation or prosecution and is otherwise unobtainable; or
(3) The testimony or other information to be provided by such individual is necessary for the prosecutor to prove a defendant's guilt beyond a reasonable doubt.
3. If a person refuses to testify on the basis of such person's privilege against self-incrimination after being given an order to testify under this section or produce evidence or other information, such person shall be adjudged in contempt and committed to the county jail until such time as the person purges himself or herself of this contempt by testifying or producing evidence and information as ordered, or the trial for which the person's testimony was requested has concluded. In no event shall the length of confinement exceed twelve months.
(emphasis added).
Mr. Couts contends that the mandates of section 491.205 were not followed as they pertained to the testimony of John Camacho. Specifically, it is argued that in light of the fact that the trial court granted Mr. Camacho "immunity," the trial court erred in failing to recuse itself from the subsequent trial of Mr. Couts pursuant to section 491.205.2 and, therefore, was a biased tribunal. Essential to Mr. Couts' argument here is that immunity under section 491.205 was granted to Mr. Camacho in order for him to testify in this case. But such was not the case.
Reading the plain words of section 491.205 makes it clear that immunity was not granted to Mr. Camacho pursuant to that statute. Section 491.205 states in no uncertain terms that immunity, pursuant to the statute, is to be granted "upon the written request of the prosecuting attorney [in] an order requiring such individual to give testimony" (emphasis added). Here, there is no dispute that such a written request was never made. Furthermore, there can be no doubt that no written order was issued by the trial court in this case, pursuant to that statute, which gave Mr. Camacho such immunity. Mr. Couts' argument that these facts are to be overlooked is unavailing ("Even though the prosecutor did not follow the application procedures provided by the witness immunity statute, Section 491.205, RSMo, the fact remains that Mr. Camacho was given immunity in exchange for his testimony.").
Initially, we disagree with Mr. Couts' suggestion that we should essentially ignore a requirement expressly made by the Legislature. "We interpret statutes by their plain and ordinary meaning, and when a statute's language is clear, we must give effect to that language." State v. Samuels, 88 S.W.3d 71, 81-82 (Mo.App.W.D. 2002). Here, the statute is unambiguous in stating that such a written request is required, and, therefore, we are compelled as a matter of law to follow that specific requirement. Id.
Moreover, the record refutes the assertion by Mr. Couts that Mr. Camacho was given full immunity pursuant to section 491.205. As previously stated, Mr. Camacho was given a sentencing concession in exchange for his testimony against Mr. Couts (the second-degree felony murder charge against him was reduced to a voluntary manslaughter charge, and the armed criminal action charge against him was dismissed). But at Mr. Couts' trial, Mr. Camacho became nervous and expressed a desire not to testify, specifically because he had not been given full immunity for the charges stemming from the incident in question. These proceedings were as follows at trial:
Mr. Ross: Your Honor, this is Dan Ross, and I represent Mr. Camacho. He had entered into a plea with the State of Missouri last week, which as part of the agreement was contingent on his testifying truthfully. It's our understanding, because he refused to participate and testify truthfully in a deposition within the last ten days, that he had dishonored his part; that is, broke the agreement with the State. And it's our understanding that under the original terms of that agreement, the State has the ability to and has indicated at one time their intent to force the withdrawal of the guilty plea and reinstitute second degree murder charges against Mr. Camacho. Because of that, my client believes he has a Fifth Amendment right not to testify, since the charges can be brought back against him, so long as those original charges can be reinstituted.
THE COURT: And the State's position?
MR. KRANTZ: Well —
MS. GREENSTREET: Well, Your Honor, it is the State's position that the defendant has waived his right to assert the Fifth Amendment rights not to testify by pleading guilty. And the State understands the defense's position that we would still have the option of withdrawing that guilty plea based on his noncompliance with the agreement.
However, it's the State's intention to leave that guilty plea agreement intact, despite the fact that the defendant has not lived up to his end of the bargain. The State is going to continue to maintain our end of the bargain. Therefore, because he did waive his right to the Fifth Amendment when he pled guilty at that guilty plea, he cannot assert the Fifth Amendment right in this hearing. And the State has some case law to support that position.
MR. ROSS: Additionally, Your Honor, my client did give inconsistent statements to the police, which we believe would subject him to at least violations of the Kansas City municipal ordinances for false information to the police, if not interfering with a felony investigations, which I believe could be a D felony under Missouri law. And I'm not necessarily directly talking about perjury.
* * *
THE COURT: Is it the State's intention to grant Mr. Camacho immunity as to any other offenses that might arise out of this set of circumstances?
MR. KRANTZ: Your Honor, I think — well, go ahead.
MS. GREENSTREET: It's the State's position that any of the offenses arising out of this transaction would be double jeopardy. I don't think that we have the ability to charge him with anything else, since we have charged him with something already related to these — these acts on this date at this time.
THE COURT: Is it the State's position that you could not charge him with some kind of obstruction of justice charge — I don't know what that would be under the State of Missouri — or could not charge him with filing false police report, anything of that nature?
MR. KRANTZ: We're not intending to file anything of that nature. Now if — he has no Fifth Amendment right against perjury.
MS. GREENSTREET: Right.
MR. KRANTZ: If he were to perjure himself, that might be a different matter. But as far as the — I don't think we are allowed to charge anything further out of the incidents that occurred. I think we make all charges out of those incidents at one time. We have no intention to bring any additional charges for the incidents of November the 30th.
* * *
MR. ROSS: Your Honor, I believe we're getting inconsistent positions from the State. Either they are or they are not going to honor the agreement. And I understand if they choose not to; that was the deal. But if there is any chance they won't, then my client clearly has a right to invoke the — his Fifth Amendment rights.
THE COURT: Well, as I understand Mr. Krantz's comments — in fact his — are you talking about the potential of Mr. Camacho perjuring himself?
MR. KRANTZ: Yes.
THE COURT: And —
MR. ROSS: That would be a future offense.
THE COURT: I agree with you.
MR. ROSS: And we're not talking about future offenses.
THE COURT: Okay.
MR. ROSS: We're talking about things that occurred prior to this moment.
MR. KRANTZ: Things that have occurred prior to this moment, we have no intention of bringing any additional charges, and we will not.
MR. ROSS: That's accepted. I agree that's a — I consider that, essentially, immunity.
THE COURT: All right. That being the case then, pursuant to Missouri case law, Mr. Camacho no longer has the right to assert his Fifth Amendment rights with regard to the circumstances of this offense.
When reading the trial transcript as it relates to this specific immunity granted to Mr. Camacho, one thing is certain: it was not given pursuant to section 491.205. At no time was this provision of law even mentioned as a means by the parties to afford Mr. Camacho such immunity. Accordingly, we cannot understand how this statute even plausibly relates, let alone controls, the current matter at hand. Mr. Camacho testified at Mr. Couts' trial, and, although he was not the most cooperative witness, his inculpatory statements against Mr. Couts were heard by the jury. As such, Mr. Camacho satisfied the ad-hoc negotiated plea agreement.
Based on all of the foregoing, we must reject Point II. The trial court did not err in choosing not to recuse itself for Mr. Couts' trial because section 491.205's prohibitions did not apply in light of the fact that Mr. Camacho was not given immunity pursuant to that provision of law.
III. CONCLUSION
After reviewing the parties' briefs and the record on appeal, we vacate Mr. Couts' conviction and sentence for armed criminal action. In all other respects, we affirm the trial court's judgment.
Robert G. Ulrich, P.J. and Victor C. Howard, J. concur.