State v. Merritt

• Decision Date: 18 August 2015
• Docket Number: No. SC 94096,SC 94096
• Citation: 467 S.W.3d 808
• Parties: State of Missouri, Appellant, v. Marcus Merritt, Respondent.
• Court: Missouri Supreme Court

467 S.W.3d 808

State of Missouri, Appellant

v.Marcus Merritt, Respondent.

No. SC 94096

Supreme Court of Missouri, en banc .

Opinion issued August 18, 2015

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

Merritt was represented by Matthew W. Huckeby of the public defender's office in St. Louis, (314) 340–7662.

Senator Kurt U. Schaefer, an attorney in Jefferson City, (573) 761–5008, filed a brief as a friend of the Court and represented himself.

Opinion

PER CURIAM

The State appeals the circuit court's judgment that Missouri's “felon-in-possession law” is unconstitutional. Marcus Merritt was charged with three counts of unlawful possession of a firearm, § 571.070.1(1),¹ among other offenses. He filed a motion to dismiss the unlawful possession charges, claiming the law violated the Missouri Constitution's protection of his right to bear arms. The circuit court sustained Merritt's motion, and the State appeals.

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, 209 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 reversed, and the case is remanded.

Factual and Procedural History

Merritt was convicted in 1986 of federal felony distribution of phencyclidine (PCP). He was charged in January 2013 with three counts of unlawful possession of a firearm, § 571.070.1(1), for knowingly possessing a revolver, a shotgun, and a .22 caliber rifle on or about November 7, 2012, while being a convicted felon. He was also charged with one count of possession of a controlled substance, § 195.202, and one count of unlawful use of drug paraphernalia, § 195.233, RSMo 2000.

Merritt filed a motion to dismiss the indictment, arguing § 571.070.1(1) violated his right to bear arms under the Missouri Constitution, article I, section 23, and the Missouri Constitution's prohibition against laws retrospective in their operation, article I, section 13. The circuit court sustained the motion and dismissed the three unlawful possession counts with prejudice. Merritt then pleaded guilty to the other charges. The State filed a notice of appeal in the court of appeals, which transferred the case to this Court prior to opinion.² 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.” The circuit court's judgment sustaining Merritt's motion to dismiss on constitutional grounds is a final judgment from which the State may appeal. State v. Honeycutt, 421 S.W.3d 410, 413 (Mo. banc 2013). This Court has not addressed the standard of review of a judgment sustaining a motion to dismiss a criminal indictment, but civil cases are instructive. “If a trial court fails to state a basis for its dismissal, this Court presumes the dismissal was based on the grounds stated in the motion to dismiss.” Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391 (Mo. banc 2001). “If the dismissal is justified on any ground alleged in the motion, ... the judgment will be affirmed.” Anderson v. Union Elec. Co., 463 S.W.3d 783, 786 (Mo. banc 2015).

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

The State argues the circuit court erred by dismissing the three counts of unlawful possession of a firearm because § 571.070.1(1) does not violate Merritt's right to bear arms, article I, section 23, or the prohibition against laws retrospective in their operation, article I, section 13. Merritt now concedes that the statute does not violate the ban on the passage of retrospective laws given this Court's recent holding that “article I, section 13's ban on the passage of any law retrospective in its operation does not apply to criminal laws.” State v. Honeycutt, 421 S.W.3d 410, 413 (Mo. banc 2013). The sole issue is whether § 571.070.1(1) violates article I, section 23's protection of Merritt's 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, 463 S.W.3d at 196. Both parties argue that the new version of article I, section 23 applies retroactively to this case. The State also argues, in the alternative, that the previous version of article I, section 23 applies because it was in effect at the time of McCoy's offense and that, regardless, § 571.070.1(1) survives under either version.⁴

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

The parties claim 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, 463 S.W.3d at 209 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...