State Ex Rel. Turner v. Kinder

DONNELLY, Judge.

This is prohibition.

On April 16, 1987, Relator Carl Turner appeared for arraignment intending to enter a plea of guilty to the charge of escape. He was taken to a conference room at the Missouri State Penitentiary that was designated as a courtroom of the Circuit Court of Cole County. This conference room was “hooked-up” to the Cole County Courthouse by use of electronic equipment involving video cameras, microphones, and monitors. Relator could see and hear the judge and activity in the courtroom. The judge and prosecutor could see and hear relator and defense counsel and activity occurring in the conference room. Employees of the Department of Corrections were present along with relator and defense counsel in the conference room. Relator’s request to plead in person before the court at the Cole County Courthouse was denied. Objecting to the electronic procedure, relator stood mute at his arraignment and the court entered a plea of not guilty on his behalf and set his case for trial.

On April 16, 1987, Relators Mark Arnold, et al., were arraigned on the charges of (respectively) offering violence to a corrections officer and possession of a weapon; assault and possession of a weapon; escape; offering violence to a corrections officer; possession of a weapon; possession of a weapon, offering violence to a corrections officer, and assault in the first degree. The arraignment procedure was similar to that followed in the Turner case with the same result.

On April 23, 1987, Relators Willie Jackson, et al., were given a preliminary examination on charges of (respectively) possession of a weapon; offering violence to a corrections officer; two counts of offering violence to a corrections officer; possession of a weapon; and assault. The preliminary examination was conducted via the video hookup between the Missouri State Penitentiary and the Cole County Courthouse as described in the Turner and Arnold cases.

Relators prayed that respondent-judges be prohibited from proceeding further. A preliminary order in prohibition was issued August 21, 1987. The cases were heard October 5, 1987.

Section 546.030, RSMo 1986, provides that no person “can * * * be allowed to enter a plea of guilty * * * unless he be personally present * *

Section 544.250, RSMo 1986, provides that no information shall be filed charging a person with a felony without first according such person “the right of a preliminary examination before some associate circuit judge in the county where the offense is alleged to have been committed in accordance with this chapter.”

Section 544.270, RSMo 1986, provides that “[t]he associate circuit judge before whom any such person shall be brought shall proceed, as soon as may be, to examine the complainant and witnesses produced in support of the prosecution, on oath, in the presence of the prisoner, in regard to the offense charged, and other matters connected with such charge which such associate circuit judge may deem pertinent.”

The question is whether, under such statutes, taking of pleas of guilty and conducting preliminary examinations via a video hookup between the courtroom in the *656Courthouse and a conference room in the Penitentiary is authorized. »

In State ex rel. Peach v. Bloom, 576 S.W.2d 744, 746 (Mo. banc 1979), this Court reaffirmed that “[t]he primary principle and the primary rule of construction is to ascertain the intention of the General Assembly from the words used in the statute in order to effectuate the true intent of the legislature.”

Relators argue that an accused is entitled to be physically and personally present in the courtroom in the Courthouse. Respondents argue that the audio-visual technology permits relators’ images and voices to be in the courtroom in the Courthouse for the purposes required by the statutes.

We must recognize, of course, that substantially similar antecedents of §§ 546.-030, 544.250 and 544.270 were enacted long before audio-visual technology existed or could have been contemplated. In this circumstance, we cannot ascertain the intention of the General Assembly from the words used in those particular statutes. However, “while prior or contemporary legislation is more often consulted in the interpretation of a particular statute, yet subsequent legislation sometimes may be.” State v. Thomas, 351 Mo. 804, 810, 174 S.W.2d 337, 340 (1943). And in 1981 the General Assembly enacted section 544.275, RSMo 1986, which reads as follows:

1. When a person committed to the department of corrections and human resources is a defendant at a preliminary hearing, or pretrial or posttrial motion or proceeding, or the movant in a postcon-viction proceeding, such proceeding may in the discretion of the judge be heard within a facility of the department of corrections and human resources.
2. Jury trials shall not be heard within a facility of the department of corrections and human resources.

It is fundamental in Missouri that “[t]he legislative department * * * represents it polity and its will * * *.” Hans v. Louisiana, 134 U.S. 1, 21, 10 S.Ct. 504, 509, 33 L.Ed. 842 (1890). We consider section 544.-275 a legislative statement that preliminary hearings and pretrial proceedings may be conducted in a conference room in the Penitentiary as well as in the courtroom at the Courthouse. We decline to presume to legislate public policy beyond that legislative statement.

The preliminary order in prohibition is made absolute.1

BILLINGS, C.J., and RENDLEN and HIGGINS, JJ., concur. BLACKMAR, J., concurs as to 69544 and 69546 and dissents as to 69545 in separate opinion filed. ROBERTSON, J., concurs in part and dissents in part in separate opinion filed. WELLIVER, J., dissents in separate opinion filed.

. If the General Assembly should see fit to authorize procedures embracing audio-visual technology, we will then address the constitutional issues. See, Mo. Const. art. I, § 18(a); Kansas City v. McCoy, 525 S.W.2d 336 (Mo. banc 1975).