State v. Pierce
| Decision Date | 26 February 2013 |
| Docket Number | No. ED98478,ED98478 |
| Parties | STATE OF MISSOURI, Plaintiff/Respondent, v. BRUCE PIERCE, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court
of the City of St. Louis
Honorable Thomas C. Grady
Introduction
Bruce Pierce (Appellant) appeals from the trial court's judgment entered upon a jury verdict convicting him of second-degree trafficking and resisting a felony arrest. We affirm.
Factual and Procedural Background
On May 5, 2010, the State charged Appellant with second-degree trafficking (Court I), alleging he possessed more than two grams of substance containing cocaine base, and resisting arrest for a felony (Count II), alleging Appellant resisted being arrested for second-degree trafficking by fleeing from the law enforcement officer making the arrest.
On November 9, 2010, the cause went to trial but ended when the jury became deadlocked and the court declared a mistrial. On November 30, 2011, the cause wasretried. The evidence adduced at trial, viewed in the light most favorable to the verdicts, is as follows.
On May 5, 2010, at approximately 7:00 p.m., officers Patrick Daut (Daut) and Nate Burkemper (Burkemper) were on patrol as part of an undercover unit. Daut was driving the unmarked vehicle. The officers were wearing plain clothes and vests which said "Police" on the front and back. The officers were parked at a curb in the 2900 block of James "Cool Papa" Bell Avenue when they saw Appellant walking across a vacant field toward a large group of vacant buildings. Appellant sat down on the steps in front of one of the vacant buildings. The officers decided to approach Appellant and conduct a field interview. Daut pulled the car up to Appellant at the curb and called out, Appellant got up and ran eastward along the sidewalk and then northbound through the gangway. The officers pursued Appellant in their vehicle in an attempt to cut him off. As they neared Appellant in the alley, Burkemper exited the vehicle and initiated a foot pursuit. Daut continued to follow them in the car.
Burkemper was initially 30 to 40 feet away from Appellant but closed the gap to 20 to 25 feet within a few seconds. While running through a vacant lot, Burkemper observed Appellant throw an object on the ground. Burkemper stooped down and grabbed the object, a clear plastic baggie containing an off-white substance which Burkemper believed to be narcotics. Burkemper secured the object in his pocket and continued running after Appellant. Burkemper identified himself as a police officer, advised Appellant that he was under arrest and ordered Appellant to stop. Appellant continued to run, eventually running into the rear yard of 1350 Garrison. Appellant ran up onto the deck, shoved a woman standing in the back doorway out of the way, and raninside the house. Burkemper followed Appellant into the residence where he saw Appellant removing his polo, revealing another shirt underneath. Burkemper again ordered Appellant to stop. Appellant complied and Burkemper arrested Appellant and escorted him outside.
Daut, having secured the front of the residence, met Burkemper outside and took custody of Appellant and the baggie. Daut advised Appellant of his Miranda1 rights which Appellant waived. Appellant stated,
The following day, lab tests performed on the substance inside the bag revealed the substance was 2.51 grams of cocaine base. The substance was reweighed in November 2010 at 2.20 grams. The substance was tested again before trial in November 2011 and was found to be 2.14 grams of cocaine base. Two criminalists with the St. Louis City Police Department testified that the successive drops in weight can be attributed primarily to moisture loss but also to small losses during sampling and testing.
The jury convicted Appellant on both counts. The court sentenced Appellant, as a prior and persistent drug offender, to concurrent terms of 10 years and 7 years. This appeal follows.
Points Relied On
In his first point on appeal, Appellant argues the trial court erred in denying his pretrial motion to dismiss and in retrying his case four terms after the first trial resulted in a mistrial due to a hung jury, because Article I, Section 19 of the Missouri Constitution limits the circuit court's authority and jurisdiction to retry such cases to within the next term of court.
In his second point on appeal, Appellant argues the trial court erred in denying his motion for judgment of acquittal on the resisting arrest count and in accepting the jury's guilty verdict because the State did not present sufficient evidence upon which a reasonable jury could have found Appellant guilty beyond a reasonable doubt, in that the State failed to prove that he fled for the purpose of preventing the arrest.
In his third point on appeal, Appellant agues the trial court erred in failing to submit his proffered instruction on the lesser-included offense of possession of a controlled substance because he was entitled to the instruction in that the jury could have accepted the lab technicians' testimony that Appellant possessed a substance containing cocaine base while rejecting the inconsistent testimony as to the substance's weight.
Discussion
Point I - Motion to Dismiss
Typically, this Court reviews the trial court's ruling on a motion to dismiss for an abuse of discretion. State v. Ferdinand, 371 S.W.3d 844, 850 (Mo. App. W.D. 2012). However, constitutional interpretation is an issue of law that this Court reviews de novo. Farmer v. Kinder, 89 S.W.3d 447, 449 (Mo. banc 2002). Here, the question is whether the trial court drew the proper legal conclusion from the uncontested facts and, therefore, because the decision below was based upon an interpretation of the Missouri Constitution, this Court's review is de novo. Missouri Prosecuting Attorneys v. Barton County, 311 S.W.3d 737, 740 (Mo. banc 2010).
"[The] [r]ules applicable to constitutional construction are the same as those applied to statutory construction, except that the former are given a broader construction, due to their more permanent character." Id. at 741. Non-technical words "must be giventheir plain or ordinary meaning unless such construction will defeat the manifest intent of the constitutional provision." Id. at 742. Every word is presumed to have meaning. Id.
Article I, Section 19 of the Missouri Constitution provides:
That no person shall be compelled to testify against himself in a criminal cause, nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury; but 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; and if judgment be arrested after a verdict of guilty on a defective indictment or information, or if judgment on a verdict of guilty be reversed for error in law, the prisoner may be tried anew on a proper indictment or information, or according to the law.
(Emphasis added.)
No local rule governs the terms of court in the City of St. Louis so the terms are governed by Section 478.205.2 See 22nd Judicial Circuit, Local Rule 2.2. Section 478.205 provides that, to the extent a term of court is required or specified by law, terms of each circuit court are considered to commence on the second Mondays in February, May, August and November of each year. Applying Section 478.205, the last term of court in the 22nd judicial circuit for 2010 commenced on November 8 and the terms of said court for 2011 would have commenced on February 14, May 9, August 8, and November 14.
Appellant's first trial ended in a mistrial on November 10, 2010. A trial setting was scheduled for January 10, 2011, the same term of court. On January 14, 2011, the case was continued due to attorney conflict until March 7, 2011, the next term or February term. On March 10, 2011, the case was continued due to attorney conflict until April 4, 2011, still in the February term of court. On April 6, 2011, the case was continued by the court's motion until May 23, 2011, now in the May term of court. OnMay 24, 2011, the case was continued until July 25, 2011, at the request of the prosecution due to a witness being unavailable. On July 27, 2011, the case was rescheduled due to illness of defense counsel until September 6, 2011, now in the August term of court. On August 24, 2011, the case was continued due to attorney conflict until October 24, 2011. On October 27, 2011, the case was continued due to attorney conflict until November 28, 2011, now in the November term of court.
On November 30, 2011, Appellant's case went to trial. That day, Appellant filed a Motion to Dismiss for Violation of State Constitutional Time Limit requesting the court dismiss the case with prejudice for failing to try Appellant within the same or next term of court as specified in Article I, Section 19 of the Missouri Constitution. The trial court denied the motion.
On appeal, Appellant argues the trial court erred in overruling his motion to dismiss because the court lacked either the jurisdiction or the authority to retry him because he was not retried within the same or the next term of court as provided by Article I, Section 19.
It cannot be said that the trial court lacked the jurisdiction to retry Appellant's case. The trial court had both personal jurisdiction, i.e., power over Appellant's person, and subject matter jurisdiction, i.e., the power to hear criminal cases. State v. Fassero, 256 S.W.3d 109, 117 (Mo. banc 2008); St. Louis County v. Berck, 322 S.W.3d 610, 615 (Mo. App. E.D. 2010).
Appellant argues the trial court lacked the authority to proceed and erred in overruling his motion to dismiss based upon the court's failure to abide by the...
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