June 24, 2014
Link to Supreme Court of Missouri Opinion
Bruce Pierce appealed his conviction for second-degree trafficking and resisting arrest, claiming that both charges should have been dismissed on the ground that the trial court lacked authority to retry him.[i] In addition, Pierce claimed that the trial court erred in refusing to instruct the jury regarding possession of a controlled substance as a lesser-included offense of second-degree trafficking.[ii] Finally, Pierce claimed the evidence was not sufficient to support his conviction for resisting arrest.[iii] The Court rejected the first claim finding that by choosing not to raise the deadline at his earliest opportunity, Pierce waived his claim under the retrial deadline in article I, section 19.[iv] The Court agreed with Pierce as to his second claim, finding that the trial court erred in refusing to instruct the jury on the lesser-included offense of possession of a controlled substance.[v] As to Pierce’s third claim, the Court found that the evidence was sufficient to support a conviction for resisting arrest.[vi]
I. Facts and Holding
On May 5, 2010, two police officers observed Bruce Pierce sitting on steps in front of a vacant building.[vii] After the officers identified themselves and asked Pierce how he was doing, Pierce began to run from the officers.[viii] The officers pursued Pierce and during the chase observed Pierce throw an object on the ground.[ix] One of the officers retrieved the object, which at the time he believed to be a bag containing narcotics.[x] After securing the bag, which was later found to contain more than 2 grams of narcotics, the officer continued to chase after Pierce, eventually catching him and restraining him in a nearby yard.[xi]
Pierce was charged with second-degree trafficking under section 195.223 and resisting arrest under section 575.150.1.[xii] Pierce’s first trial, beginning on November 9, 2010, ended in a mistrial after the jury was unable to reach a unanimous verdict on either of the charged counts.[xiii] The court set the retrial date for January 10, 2011, a date which was later continued seven times with no objection from Pierce.[xiv] As a result of the continuances, the retrial did not begin until November 30, 2011.[xv] On this date, Pierce moved to have his charges dismissed on the ground that his trial should have begun no later than the end of the term following the one in which the mistrial occurred, as required by article I, section 19 of the Missouri Constitution.[xvi] Pierce contended that this deadline had passed and therefore the trial court lacked authority to retry him.[xvii] The trial court overruled Pierce’s motion to dismiss, and the case proceeded to trial.[xviii]
During trial, the court announced it would give the state’s proposed instruction for drug trafficking in the second degree, but refused to honor Pierce’s request to instruct the jury on the lesser-included offense of possession of a controlled substance under section 195.202.1.[xix] In addition, the court overruled Pierce’s request for a directed verdict on the resisting arrest charge.[xx] Ultimately, the jury found Pierce guilty of resisting arrest and trafficking in the second degree, sentencing him to concurrent prison terms of seven and ten years, respectively.[xxi] Pierce appealed to the Supreme Court of Missouri.[xxii]
On appeal, Pierce again contended that the trial court lacked authority to retry him under article I, section 19.[xxiii] The Court conceded that the deadline in article 1, section 19 was not met, but reasoned that the holdings from Fassero still defeated Pierce’s contention.[xxiv] First, Fassero holds that a defendant must raise a claim based on the retrial deadline “at the first opportunity,” or the claim will be waived.[xxv] Second, Fassero holds that a trial court’s authority to retry a defendant is not affected by a failure to comply with a deadline if the defendant fails to raise the issue of the constitutional deadline in a timely manner.[xxvi] Based on the Fassero holdings, The Supreme Court of Missouri ultimately found that Pierce’s “first opportunity” to raise the constitutional retrial deadline was not in a motion to dismiss filed long after the court had an opportunity to correct the error.[xxvii] By choosing not to raise the deadline at his earliest opportunity, Pierce waived his claim under the retrial deadline in article I, section 19.[xxviii]
On appeal, Pierce also asserted that the trial court erred in not giving Pierce’s requested instruction on the lesser-included offense of possession of a controlled substance.[xxix] The Supreme Court of Missouri found the trial court to be in error with respect to its failure to give the lesser-included offense of possession of a controlled substance.[xxx] The Court reasoned that a trial court cannot refuse to give a lesser offense instruction merely because Pierce failed to introduce affirmative evidence contesting the differential element between the two charges and merely because the court concludes that the evidence is so overwhelming that all reasonable jurors must find the differential element beyond a reasonable doubt.[xxxi] The Court articulated that these determinations must be made the jury, despite being overwhelmingly obvious to the court, because the jury is the “sole arbiter of the facts.”[xxxii] Based on these determinations, the Court vacated Pierce’s conviction for second-degree trafficking and the case was remanded for further proceedings.[xxxiii]
Pierce’s final assertion on appeal was that the state did not present sufficient evidence to support his conviction for resisting arrest.[xxxiv] Pierce contended that because officers were not attempting to arrest him when he began running, his flight should not be classified as resisting arrest.[xxxv] The Court concluded that it does not matter whether the officers were attempting to arrest Pierce at the moment he started running.[xxxvi] What mattered to the Court is the fact that Pierce continued to run after the officer told Pierce to stop because he was under arrest.[xxxvii] The Court found the evidence to be sufficient for a reasonable jury to find Pierce guilty of the crime of resisting arrest beyond a reasonable doubt and therefore Pierce’s conviction for resisting arrest was confirmed.[xxxviii]
In the end, the Court rejected Pierce’s contentions that the trial court lacked authority to try him, affirmed his conviction for resisting arrest, and vacated his conviction for second-degree trafficking, remanding the case.[xxxix]
Judge Stith filed a separate opinion concurring in part and dissenting in part.[xl] While she agreed with the majority that Pierce waived his objections to retrial under article I, section 19, she disagreed with the majority’s rationale.[xli] She believed that Pierce’s retrial was not time barred because Pierce consented to the delays, and not because he waived his right by not alerting the court to the article I, section 19 issue before the deadline for retrial passed.[xlii] Judge Stith concurred in full with the majority’s opinion holding that the evidence was sufficient to support a resisting arrest conviction.[xliii] Judge Stith did not agree with the majority opinion that the trial court erred in refusing to submit the lesser-included offense instruction on possession of a controlled substance.[xliv] She argued that because the defense did not dispute the credibility or reliability of the evidence that at the time of arrest Pierce possessed more than two grams of a substance, no reasonable jury could conclude that Pierce possessed less than two grams, which is the standard for giving the lesser included offense of possession of a controlled substance.[xlv]
Judge Draper filed a separate dissenting opinion.[xlvi] He dissented with regard to the majority’s finding that the jury should have received an instruction on the lesser-included offense of possession of a controlled substance.[xlvii] Like Judge Stith, Judge Draper concluded that all of the evidence at trial demonstrated that the amount of narcotics in Pierce’s possession was more than two grams, supporting an instruction for second degree trafficking only and not an ancillary instruction for possession of a controlled substance.[xlviii]
II. Legal Background
A. Authority to Retry
In Missouri, article I, section 19 provides in part that, “if the jury fail to render a verdict the court may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the same or next term of court.”[xlix] The Court in Fassero discussed what a defendant must do if a retrial did not occur “at the same or next term of the court.”[l] The Court held that a defendant must raise a claim “at the first opportunity” and that if a defendant fails to raise the deadline issue in a timely fashion, the trial court’s authority to retry is not affected.[li] Furthermore, Safire provides that the trial court “must be given the opportunity to correct the error while it is still possible.”[lii]
B. Instruction on Lesser-included Offenses
The Court addressed instructions on lesser-included offenses in Jackson.[liii] The Court determined that if the evidence is sufficient to convict the defendant of the charged offense, there is always a basis in the evidence to convict the defendant of a ‘nested’ lesser offense.[liv] The Court went on to reason that if the only difference between the charged offense and the ‘nested’ lesser offense is an element on which the state bears the burden of proof, there is always a basis in the evidence to acquit the defendant of the charged offense because the jury is free to disbelieve all or any part of the evidence concerning that differential element.[lv] Furthermore, Celis-Garcia provides that the jury is the sole and final arbiter of the facts.[lvi]
C. Evidence Sufficient to Prove Resisting Arrest
According to Silvey, when a defendant asserts that the state does not present sufficient evidence to support a conviction for resisting arrest, the Court’s review is limited to a determination of whether the evidence admitted is sufficient for a reasonable jury to find the defendant guilty of the crime beyond a reasonable doubt.[lvii] Silvey also provides that the Court must consider the evidence supporting the jury’s verdict in a light most favorable to that verdict and must disregard inferences or evidence that are inconsistent with the jury’s verdict.[lviii]
The Supreme Court of Missouri made an incorrect ruling that the trial court erred in refusing to instruct the jury regarding possession as a lesser-included offense of second-degree trafficking.[lix] Judge Draper’s dissent highlights an important concern with this ruling.[lx] Judge Draper fears the decision will “open the floodgates of needless litigation and error.”[lxi]
The majority’s ruling mandating that a lesser-included instruction is required in every case for the sole rationale that the jury may disbelieve the evidence presented[lxii] will surely lead to excessive and needless litigation. If the record clearly shows a fact to be one way or another—black and white—why instruct the jury on it or even have them discuss it? While the jury is the sole and final arbiter of the facts[lxiii], they need not consider issues that have no basis in evidence. There was nothing in the record indicating Pierce possessed anything less than 2 grams of cocaine and therefore no reason to give the lesser-included offense of possession of a controlled substance, which requires an amount less than 2 grams.[lxiv] If possession and trafficking charges are identical but for the quantity of drug in issue, and all the undisputed evidence indicates that the Pierce possessed over 2 grams of substance, then why give an instruction that runs counter to all the evidence on that pivotal element?[lxv]
In addition to needless litigation, the majority’s ruling will likely cause significant error.[lxvi] Including the lesser-included offense in every case will confuse juries because they will be tasked with differentiating similar offenses and parsing through even more legalese, which could lead them to blend elements of different offenses. Juries may also see the lesser-included offense option as a way to take pity on a sympathetic defendant. Or just as bad, juries may decide that a defendant did not commit the principle crime, but did something, convicting the defendant of the lesser-included offense, even if they do not satisfy the elements of that lesser offense.[lxvii]
In the end, the Supreme Court should consider the implications of their decision if for no reason other than to eliminate confusion and free the courts of litigation over needless issues.[lxviii]
- Cole T. Cameron
[i] State v. Pierce, 433 S.W.3d 424, 426 (Mo. banc 2014).
[ii] Id. at 427.
[xix] Id. at 428.
[xxv] Id. at 429.
[xxvii] Id. at 430.
[xxx] Id. at 432.
[xxxi] Id. at 433.
[xxxii] Id. at. 432.
[xxxiii] Id. at 433.
[xxxv] Id. at 434.
[xl] State v. Pierce, 433 S.W.3d 424, 435 (Mo. 2014) (en banc) (Stith, J., dissenting in part, concurring in part).
[xlv] Id. at 445.
[xlvi] State v. Pierce, 433 S.W.3d 424, 446 (Mo. 2014) (en banc) (Draper, J., dissenting).
[xlviii] Id. at 447.
[xlix] Mo. Const. art. I, § 19.
[l] State v. Fassero, 256 S.W.3d 109 (Mo. 2008) (en banc).
[li] Id. at 117.
[lii] Douglass v. Safire, 712 S.W.2d 373, 374 (Mo. 1986) (en banc).
[liii] State v. Jackson, 433 S.W.3d 390 (Mo. 2014) (en banc).
[liv] Id. at 420.
[lv] Id. at 392.
[lvi] State v. Celis-Garcia, 344 S.W.3d 150 (Mo. 2011) (en banc).
[lvii] State v. Silvey, 894 S.W.2d 662, 673 (Mo. 1995) (en banc).
[lix] State v. Pierce, 433 S.W.3d 424 (Mo. 2014) (en banc).
[lx] State v. Pierce, 433 S.W.3d 424, 446 (Mo. 2014) (en banc) (Draper, J., dissenting).
[lxi] Id. at 448.
[lxii] See State v. Pierce, 433 S.W.3d 424 (Mo. 2014) (en banc).
[lxiii] See id.
[lxvi] See id.
[lxvii] See State v. Pierce, 433 S.W.3d 424, 446 (Mo. 2014) (en banc) (Draper, J., dissenting).
[lxviii] See id.