State Ex Rel. Eggers v. Enright , 1980 Mo. LEXIS 428 ( 1980 )

RENDLEN, Judge.

Relator unsuccessfully sought prohibition in the Court of Appeals, Eastern District. He now petitions this Court to prevent respondent, the Honorable Richard Enright, Judge of the 21st Judicial Circuit, from proceeding further in the capital murder prosecution of relator, William Henry Eg-gers. Eggers contends that after a jury determines his case and if a guilty verdict is returned, he should be allowed under § 557.-036.2, RSMo 1978, to change the course of trial by waiving further service of the jury,¹ and require the judge alone to hear evidence in the second stage of the bifurcated capital murder procedure provided by § 565.006.2, RSMo 1978. Further, that the judge alone should assess punishment. To accomplish these ends, relator prays respondent be restrained (1) from denying his motion “for a jury-waived sentencing” and (2) “from denying . .. [his] motion in limine to prohibit the prosecuting attorney from conducting a voir dire examination regarding the death penalty in said cause.” For reasons hereinafter discussed, the extraordinary legal writ is inappropriate and the preliminary rule will be quashed.

The prime purpose of the writ is “to prevent usurpation of judicial power,” § 530.010, RSMo 1978, not to provide a remedy for all legal difficulties nor serve as a substitute for appeal, State ex rel. Berbiglia v. Randall, 423 S.W.2d 765, 770 (Mo. banc 1968). Though appeal must provide an adequate remedy, the essential function of prohibition is to confine judicial activities within limits of cognizable authority, preventing actions in want or in excess of the court’s jurisdiction. State ex rel. Allen v. Yeaman, 440 S.W.2d 138, 145 (Mo.App.1969). Further it has been held that prohibition will not be granted except when usurpation of jurisdiction or an act in excess of the same is “clearly evident.” State ex rel. McCarter v. Craig, 328 S.W.2d 589, 591 (Mo. banc 1959), and the writ should not be used for correction of an alleged or anticipated judicial error, State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, 67 (1956). Procedurally it is relator’s burden to establish that respondent has usurped or acted in excess of his jurisdiction. In this case it is readily apparent that respondent acted within the authority conferred by Chapter 565, RSMo, (enacted separately from the “New Criminal Code”)² entitled “offenses against the person” and more particularly the capital murder statutes,³ enacted in the laws of 1977 as House Bill 90 to become effective May 26, 1977. It was under these non-code sections, dealing exclusively with the crimes of the sort in question and the unique bifurcated hearing system established especially for such crimes, that respondent denied defendant-relator’s motions for court assessed punishment and to restrict the State’s conduct of voir dire. No serious claim can be made that the court exceeded its jurisdiction, for under § 565.006.2 it is provided that “[i]n capital murder cases in which the death penalty may be imposed by a jury or judge sitting without a jury, the additional procedure provided in § 565.012 shall be followed. The jury, or the judge in cases tried by a judge, shall fix a sentence within the limits prescribed by law.” (Emphasis added.) Under this explicit language it is the jury that shall fix the sentence if the jury has heard the case and determined guilt, as contrasted with cases “tried by a judge” in which the judge has determined guilt and in such instances it is he that shall fix the sentence. Relator has not waived a jury; to the contrary he expects a jury trial, yet insists that respondent disregard the cited provisions of § 565.006.2 and if a guilty verdict is returned, then discharge the jury, hear the additional evidence and fix the sentence. What relator asks is for the trial judge to act contrary to the clear mandate of § 565.006.2 and that we compel by the writ such conduct. As previously noted, for the writ to issue the usurpation or act in excess of jurisdiction must be clearly evident. The writ should not be used to correct or prevent the exercise of judicial power nor for the correction of alleged or anticipated judicial error. How can it be said the trial court’s adherence to the requirement of the statute is a “clearly evident” usurpation of jurisdiction? We hold that it is not.

Relator however relies on § 557.036.2,⁴ contending it overrides the clear language of § 565.006 and its related sections. The question is one of statutory construction.

Weighing the jurisdictional quality of respondent’s acts, we must be aware that the bifurcated hearing provided by our capital murder statute under mandate of the United States Supreme Court, see Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), was in place and effective at the time the new criminal code containing § 557.036.2 became effective on January 1, 1979. Nothing in the code expressly repealed any provision of the capital murder law. On the other hand, § 556.031.2 of the code provides, “[ojffenses defined outside of this code and not repealed shall remain in effect ...”⁵ Further it should be noted that chapter 557, the “general sentencing provisions” of the new criminal code (containing § 557.036 which defendant contends absolutely controls here) is prefaced by § 557.011 whose language again demonstrates a legislative awareness of the criminal statutes outside the code.⁶ Thus the legislative intent to leave undisturbed special statutes defining crimes outside the code finds expression in various code provisions. Hence, we must ask, did the legislature intend that § 557.-036.2 repeal by implication the provisions of § 565.006.2. In this connection it should be remembered the Missouri statutory provisions in capital cases were adopted pursuant to the requirements of the United States Supreme Court prescribed in Gregg, supra, and related cases. Significantly, the Court in Gregg stated at 190, 96 S.Ct. at 2933 “[jjury sentencing has been considered desirable in capital cases in order ‘to maintain a link between the contemporary community values and the penal system-a link without which the determination of punishment could hardly reflect the evolving standards of decency that mark the progress of the maturing society.’ ” Under Missouri law the jury’s role in the sentencing process has been preserved and enhanced in our system dealing with capital murder. Additionally, if respondent were to interpret the statute as requested by relator it would repeal by implication portions of the capital murder statutes, a process not favored in our law. Folk v. City of St. Louis, 250 Mo. 116, 157 S.W. 71 (1913). The capital murder statutes deal only and particularly with that non-code crime and its discrete trial and sentencing procedures. Nothing in our law contemplates that capital murder’s unique trial and sentencing mechanism be applicable to any other crime. In contrast, § 557.-036.2 addresses itself in broad terms to sentencing procedures in general. Pertinent to this problem of interpreting general as contrasted with particularized legislation is the following language of the Court in Folk, supra, 157 S.W. at 75:

A special statute . . . applicable to a particular [subject] is not repealed by a statute general in its terms and application, unless the intention of the Legislature to repeal or alter the special law is manifest, although the terms of the general act would, taken strictly and but for the special law, include the case or cases provided for by it.... Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repug-nancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and where the general act is later, the special will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication.

Recently this canon of statutory construction was stated this way:

A statute dealing with a subject generally will rarely have the effect of repealing by implication, either wholly or partially, an earlier statute which deals with a narrower subject in a particular way.

State ex rel. Miller v. Crist, 579 S.W.2d 837, 838 (Mo.App.1979). While we need not make a final determination of relator’s contention for “an absolute right to have the issue of punishment submitted to the Court . ..⁷ from the above analysis it cannot be said the trial court, acting under the capital murder statute, exceeded its jurisdiction. If the issue remains, it may be considered on appeal.

The preliminary writ in prohibition is quashed.

DONNELLY, MORGAN and HIGGINS, JJ., concur. WELLIVER, J., concurs in result. SEILER, J., dissents in separate dissenting opinion. BARDGETT, C. J., dissents and concurs in separate dissenting opinion of SEILER, J.

1 . Although nothing in the statutes so provides, apparently in appellant’s view the jury would then be discharged.

2 . The “New Criminal Code” containing § 557.-036.2 upon which relator bases his claim was enacted in the Laws of 1977 as Senate Bill 60 to become effective January 1, 1979.

3 . The special statutory sections of RSMo 1978 dealing with Missouri’s capital murder are:

565.001-Capital Murder Defined

565.006-Bifurcated Hearing Procedure Established for Trials for Capital Murder

565.008-Punishment Provisions for Capital Murder

565.012-Evidence to be Considered in Assessing Punishment in Capital Murder Cases

565.014-Supreme Court to Review All Death Sentences

4 . Section 557.036.2 provides:

The court shall instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as a part of their verdict, unless the defendant requests in writing that the court assess the punishment in case of a finding of guilt.... (Emphasis added.)

5 . Section 556.031, RSMo 1978, in pertinent part provides:

1. The provisions of this code shall govern the construction and punishment for any offense defined in this code and committed after January 1, 1979, as well as the construction and application of any defense to a prosecution for such an offense.

2. Offenses defined outside of this code and not repealed shall remain in effect, but unless otherwise expressly provided or unless the context otherwise requires, the provisions of this code shall govern the construction of any such offenses committed after January 1, 1979, as well as the construction and application of any defense to a prosecution for such offenses. (Emphasis added.)

6 .Pertinent portions of § 557.011.1, RSMo 1978, effective January 1, 1979, are as follows:

Every person found guilty of an offense shall be dealt with by the court in accordance with the provisions of this chapter, except that for offenses defined outside this code and not repealed, the term of imprisonment or the fine that may be imposed is that provided in the statute defining the offense; ...

7 . As a corollary to his claim of “absolute right” for judge assessed punishment, relator contends the jury need not be death qualified during voir dire under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He speculates, but offers no proof, that a With-erspoon qualified jury would be more conviction prone and a new trial as to punishment alone will not provide adequate relief. While loathe to resort to such conjecture, if we were to do so, a number of undesirable problems become immediately apparent.

Assuming the requested restrictions of voir dire were imposed, what rule should be followed? Will the array be advised they are not to be burdened with the sentencing responsibility, or will that go unsaid? If the former, an argument can be made that a jury knowingly so unburdened could more comfortably find guilt. However, if voir dire were restricted and the array not advised of their limited function, neither the court nor the parties could ascertain the veniremen’s predilections or harbored bias in this regard, thus hampering the exercise of challenge for cause and peremptory strikes so important in the jury selection process. In addition, how could the court be assured its order limiting the jury’s function would not receive public attention? Would the courtroom be closed and the record of such proceedings and orders be kept from public view? These are but a few of the difficulties springing from relator’s suggested interpretation of the statute and the change he would have us impose upon bifurcated capital murder proceedings.