State v. McCoy

• Decision Date: 18 August 2015
• Docket Number: No. SC 94564,SC 94564
• Citation: 468 S.W.3d 892
• Parties: State of Missouri, Respondent, v. Santonio L. McCoy, Appellant.
• Court: Missouri Supreme Court

468 S.W.3d 892

State of Missouri, Respondent

v.Santonio L. McCoy, Appellant.

No. SC 94564

Supreme Court of Missouri, en banc .

Opinion issued August 18, 2015

McCoy was represented by Andrew E. Zleit of the public defender's office in St. Louis, (314) 340–7662.

The state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City, (573) 751–3321.

Opinion

PER CURIAM

Santonio McCoy appeals his conviction of unlawful possession of a firearm. Section 571.070.1(1).¹ He claims this “felon-in-possession law” violates the Missouri Constitution's protection of his right to bear arms.

While the appeal was pending, the Missouri Constitution's right to bear arms provision, article I, section 23, was amended to state that courts must apply “strict scrutiny” to laws restricting the right to bear arms. The prior version of article I, section 23 applies in this case because this Court applies the constitution as it was written at the time of the offense. Nevertheless, this Court recently held in Dotson v. Kander that “strict scrutiny would have applied under the Missouri constitution,” regardless of the recent amendment, to constitutional challenges that occurred during the time frame after the Supreme Court of the United States declared the right to bear arms fundamental to our scheme of ordered liberty and held the Second Amendment to the United States Constitution fully applicable to the states through the Fourteenth Amendment. Dotson, 464 S.W.3d 190, 197 n. 5 (Mo. banc 2015) ; McDonald v. City of Chicago, Illinois, 561 U.S. 742, 750, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ; id. at 805–06, 130 S.Ct. 3020 (Thomas, J., concurring in part, concurring in the judgment, and providing the necessary fifth vote). This Court holds that this felon-in-possession law passes strict scrutiny. The circuit court's judgment is affirmed.

Factual and Procedural History

McCoy was caught possessing a pistol on or about June 23, 2012. He had prior felony convictions at the time, specifically, stealing, burglary, tampering, unlawful use of a weapon, and resisting or interfering with arrest. As a result, McCoy was charged in August 2012 with one count of unlawful possession of a firearm. He filed a motion to dismiss the indictment, arguing § 571.070.1(1) violated the Missouri Constitution's prohibition against the passage of any law retrospective in its operation, article I, section 13, and his right to bear arms under article I, section 23 of the Missouri Constitution.² The circuit court overruled the motion. A jury found him guilty, and he was sentenced as a prior and persistent offender to seven years' imprisonment. McCoy then filed his appeal in the court of appeals. While the appeal was pending in that court, the amendment to article I, section 23 went into effect. The court of appeals then transferred the case to this Court prior to opinion. See Mo. Const. art. V, § 11.

Standard of Review

Rule 24.04(b)(1) permits a criminal defendant to raise “[a]ny defense or objection which is capable of determination without trial of the general issue ... before trial by motion.” This Court has exclusive jurisdiction over this appeal pursuant to article V, section 3 because it involves the constitutional validity of a statute. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999). “Statutes are presumed constitutional and will be found unconstitutional only if they clearly contravene a constitutional provision.”State v. Vaughn, 366 S.W.3d 513, 517 (Mo. banc 2012). Constitutional challenges are issues of law this Court reviews de novo. Estate of Overbey v. Chad Franklin Nat'l Auto Sales North, LLC, 361 S.W.3d 364, 372 (Mo. banc 2012).

Analysis

In his sole point on appeal, McCoy argues the circuit court erred by overruling his motion to dismiss the indictment because § 571.070.1(1) violates article I, section 23's protection of his right to bear arms. This Court holds that it does not.³

“A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and ... [s]uch person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony.” Section 571.070.1(1). Article I, section 23 was amended as follows while this appeal was pending:

That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.

Dotson, 464 S.W.3d at 205–06. McCoy argues that the amended version of article I, section 23 applies retroactively to this case. The State argues that the previous version of article I, section 23 applies because it was in effect at the time of McCoy's offense and, in the alternative, that § 571.070.1(1) survives even if the new version applies.

I. The Prior Version of Article I, Section 23 Applies

McCoy claims that the new version of article I, section 23 applies retroactively because this case was not yet final when the amendment went into effect, citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In Griffith, the Supreme Court of the United States held “that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” 479 U.S. at 328, 107 S.Ct. 708. Griffith does not govern the retroactivity of newly enacted state constitutional amendments, only newly stated procedural rules of federal constitutional law.

“The settled rule of construction in this state, applicable alike to the Constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only.” State ex rel. Scott v. Dircks, 211 Mo. 568, 111 S.W. 1, 3 (1908). This Court gives only prospective application to a constitutional amendment unless it finds “a contrary intent that is spelled out in clear, explicit and unequivocal detail so that retrospective application is called for ‘beyond [ ]a[ ] reasonable question.’ ” State ex rel. Hall v. Vaughn, 483 S.W.2d 396, 398–99 (Mo. banc 1972). The amended version of article I, section 23 does not have any text that suggests it was intended to be applied retroactively. Therefore, it applies prospectively only. Hall, 483 S.W.2d at 398–99 ; Scott, 111 S.W. at 3.

II. Strict Scrutiny Applies Under the Prior Version of Article I, Section 23

This Court recently held, while this case was pending, that strict scrutiny applies under the prior version of article I, section 23 to cases arising in the time frame after McDonald was decided, regardless of the recent amendment. Dotson, 464 S.W.3d at 197 n. 5. Previously, the Supreme Court of the United States held, in District of Columbia v. Heller, that the Second Amendment protects an individual's right to possess an operable handgun in the home for self-defense, without deciding what level of constitutional scrutiny applies: “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one's home and family would fail constitutional muster.” 554 U.S. 570, 628–29, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (internal citations, quotation marks, and footnote omitted). In 2010, the Supreme Court held that the right to bear arms recognized in Heller is a right fundamental to our scheme of ordered liberty and fully applicable to the states through the Fourteenth Amendment. McDonald, 561 U.S. at 750, 791, 130 S.Ct. 3020 ; id. at 805–06, 130 S.Ct. 3020 (Thomas, J., concurring in part, concurring in the judgment, and providing the necessary fifth vote). Following those decisions, McCoy was charged in August 2012 with unlawfully possessing a firearm on or about June 23, 2012, for which he was tried and convicted. After McCoy filed his appeal in the court of appeals, the amendment to article I, section 23 went into effect. This Court then assumed jurisdiction of the appeal.

Then came the Dotson case, which was filed in this Court and briefed, argued, and decided while McCoy's appeal was pending. Dotson was a challenge to the ballot summary of the constitutional amendment. 464 S.W.3d at 193. The challengers argued that the ballot language was inadequate to inform voters that strict scrutiny would apply to laws affecting the right to bear arms under the Missouri Constitution. Id. at 197. This Court held as follows:

Even though [the amendment] set out strict scrutiny as the standard, that standard would already have been applicable to cases where the legislation was challenged based on article I, section 23 of the Missouri Constitution after McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Although the Supreme Court of the United States did not announce a level of judicial scrutiny in Heller, it held in McDonald that the right to bear arms is a fundamental right that applies to the states. 561 U.S. at 791, 130 S.Ct. 3020. Because this Court reviews laws affecting fundamental rights under the strict scrutiny standard, Etling v. Westport Heating & Cooling Servs.,

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