State v. Pierce, No. SC 93321.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPAUL C. WILSON
Citation433 S.W.3d 424
PartiesSTATE of Missouri, Respondent, v. Bruce PIERCE, Appellant.
Docket NumberNo. SC 93321.
Decision Date24 June 2014

433 S.W.3d 424

STATE of Missouri, Respondent,
v.
Bruce PIERCE, Appellant.

No. SC 93321.

Supreme Court of Missouri,
En Banc.

June 24, 2014.


[433 S.W.3d 426]


Robert Lundt, Public Defender's office, St. Louis, for Pierce.

Karen Kramer, Attorney General's office, Jefferson City, for State.


PAUL C. WILSON, Judge.

Bruce Pierce appeals his convictions for second-degree trafficking and resisting arrest. He claims that both charges should have been dismissed under article I, section 19, of the Missouri Constitution because the trial court lacked authority to retry him after the end of the court term

[433 S.W.3d 427]

following the term in which his earlier trial ended in a mistrial. In addition, Pierce claims that the trial court erred in refusing his request that the jury be instructed regarding possession as a lesser included offense of second-degree trafficking. Finally, Pierce claims that the evidence was not sufficient to support his conviction for resisting arrest.

The Court rejects the first claim because Pierce failed to raise it at a time when the trial court could still comply with the constitutional deadline for retrials. On Pierce's second claim, the Court holds that the trial court erred in refusing to give the requested lesser included offense instruction. Finally, the Court rejects Pierce's third claim because the evidence was sufficient for his conviction for resisting arrest. Accordingly, the Court affirms Pierce's conviction for resisting arrest, but vacates his conviction for second-degree trafficking and remands the case for further proceedings.

I. Facts

On May 5, 2010, two police officers in a patrol car observed Pierce sitting on the front steps of a vacant building. Pierce began running from the officers when one of them shouted: “Hey, it's the police. How you doing?” The officers pursued Pierce in their cruiser. When Pierce left the road, one of the officers pursued him on foot. During the chase, this officer observed Pierce throw an object on the ground. The officer retrieved the item, saw it was a clear plastic bag containing a substance he believed to be narcotics, and continued to chase after Pierce. Trailing Pierce by about 20 feet, the officer again identified himself as a police officer, told Pierce that he was under arrest, and ordered him to stop. Pierce continued running through a yard and into a nearby residence, where the officer caught and restrained him.

Pierce was charged with second-degree trafficking under section 195.223 and resisting arrest under section 575.150.1.1 His first trial, which began on November 9, 2010, ended in a mistrial when the jury was unable to reach a unanimous verdict on either count. After declaring this mistrial, the trial court remanded Pierce into custody and set his case for retrial beginning January 10, 2011. This setting later was continued seven times, however, for a variety of reasons. Pierce did not object to any of these continuances. As a result, his retrial did not begin until November 30, 2011. On that day, for the first time, Pierce moved to have his charges dismissed on the ground that article I, section 19, requires that his trial begin no later than the end of the term following the term in which his earlier mistrial occurred. Because that deadline had passed, Pierce contended that the trial court lacked authority to retry him. The trial court overruled Pierce's motion to dismiss, and the case proceeded to trial.

During the instruction conference after the close of evidence, the trial court announced

[433 S.W.3d 428]

that it would give the state's proposed instruction for drug trafficking in the second degree. Pierce did not object to this instruction but requested the court also instruct the jury on the lesser included offense of possession of a controlled substance under section 195.202.1. The trial court refused this request, and the court also overruled Pierce's motion for a directed verdict on the resisting arrest charge, finding that the evidence was sufficient to support that charge. The jury found Pierce guilty of resisting arrest and trafficking in the second degree, and the trial court sentenced him to concurrent prison terms of seven and ten years, respectively. Pierce appealed, and this Court has jurisdiction under article V, section 10, of the Missouri Constitution.

II. The Trial Court did not Lack Authority to Retry Pierce

Pierce contends that that the trial court lacked authority to retry him under article I, section 19, of the Missouri Constitution. This section provides, in relevant part, that no person shall:

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.

Mo. Const. art I, § 19 (emphasis added).


Pierce's first trial began on November 10, 2010, i.e., during the November 2010 term of court.2 That trial ended in a mistrial when the jury was unable to reach a unanimous verdict. The trial court's next term (i.e., the February 2011 term) began on February 14, 2011, and ended on May 6, 2011. Because Pierce's retrial did not begin until November 2011, it is clear that the deadline in article I, section 19, was not met. Because the trial court failed to retry him during “the same or next term of court,” Pierce contends that the court lacked authority to retry him at all.

Pierce is not the first defendant to attempt to use the deadline in article I, section 19, to prevent a retrial after the first trial ended with a hung jury. In State v. Fassero, 256 S.W.3d 109 (Mo. banc 2008), this Court rejected the same argument under very similar circumstances.

Fassero argues that, under art. I, sec. 19, his second trial should have commenced before the end of June (“the same term”) or during the next term, from July–September 2004. Because his second trial did not begin until January 18, 2005, Fassero asserts that the trial court did not have jurisdiction. Fassero raises this issue for the first time on appeal.

Generally, a party on appeal “must stand or fall” by the theory on which he tried and submitted his case in the court below. Walker v. Owen, 79 Mo. 563, 568 (Mo.1883). Under this general rule, issues that are not raised in the trial court are waived. Id. Although Fassero acknowledges this general rule, he argues that article I, section 19 deprived the second trial court of jurisdiction. And “jurisdictional” issues, he contends, may

[433 S.W.3d 429]

be raised for the first time on appeal. Searcy v. State, 981 S.W.2d 597, 598 (Mo.App.1998).

Fassero's argument results from a misunderstanding of jurisdiction. Jurisdiction describes the power of a court over the person of the defendant (personal jurisdiction) and the authority of the court to hear the particular kind of case (subject matter jurisdiction). See generally,21 Am.Jur.2d Criminal Law section 503 (2007). The court had power over Fassero's person. It was empowered to hear criminal cases. The court, thus, had jurisdiction.

Fassero did not object in the circuit court to the timing of his second trial under art. I, sec. 19. His art. I, sec. 19 objection is a constitutional claim that, to be preserved for appellate review, must be made at the first opportunity. State v. Chambers, 891 S.W.2d 93, 103–4 (Mo. banc 1994). If not raised at the first opportunity in the circuit court, a constitutional claim is waived and cannot be raised here. Id.

Fassero, 256 S.W.3d at 117 (Mo. banc 2008) (footnote omitted).


Accordingly, Fassero sets forth two holdings that, taken together, defeat Pierce's claim. First, Fassero holds that a defendant must raise a claim based on the retrial deadline in article I, section 19, “at the first opportunity” and, if he does not do so, that claim is waived. Second, Fassero holds that, if a defendant fails to raise this constitutional deadline in a timely manner, the trial court's authority to retry the defendant is not affected by a failure to comply with that deadline.

Pierce seeks to distinguish Fassero by emphasizing that he raised his claim in a motion to dismiss the charges in the trial court, not on appeal as the defendant did in Fassero. But Fassero does not hold that a claim under the retrial deadline in article I, section 19, only needs to be raised in the trial court to be timely. It holds that such a claim “must be made at the first opportunity.Fassero, 256 S.W.3d at 117 (emphasis added). Pierce's “first opportunity” to raise the constitutional retrial deadline in article I, section 19, was not in a motion to dismiss filed long after that deadline had passed. The trial court initially set Pierce's retrial in time to meet the constitutional deadline of May 6, 2011, i.e., the end of the term following the term in which his first trial occurred. As a result, Pierce had multiple opportunities to raise that deadline when the trial court was considering whether to continue his retrial prior to (and, ultimately, beyond) that date. He chose not to do so. Under Fassero, therefore, Pierce waived his claim under the retrial deadline in article I, section 19, because he failed to raise it at his earliest opportunity.

Enforcing a waiver in these circumstances “is in accord with the usual rule that the trial court must be given the opportunity to correct error while correction is still possible. Douglass v. Safire, 712 S.W.2d 373, 374 (Mo. banc 1986) (emphasis added). The purpose of the constitutional deadline for timely retrials under article I, section 19, is not to create a trap for unwary trial judges or to produce a windfall (i.e., dismissal) for defendants who do not assert that...

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34 practice notes
  • State v. Jackson, No. SC93108.
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 2014
    ...474 (Mo. banc 2002). Contrary to this well-established understanding, the principal opinion here and the companion case State v. Pierce, 433 S.W.3d 424, 2014 WL 2866292 (Mo. banc 2014), hold that a court always must instruct down if requested. This holding undermines the trial court's exclu......
  • Sprofera v. State, WD 82443
    • United States
    • Court of Appeal of Missouri (US)
    • October 27, 2020
    ...in August 2012, prior to the Missouri Supreme Court's decisions in State v. Jackson , 433 S.W.3d 390 (Mo. 2014), and State v. Pierce , 433 S.W.3d 424 (Mo. 2014). Application of Jackson and Pierce might well alter the analysis as to whether Sprofera was entitled to a lesser-included-offense ......
  • McGhee v. Schreiber Foods, Inc., WD 78744
    • United States
    • Court of Appeal of Missouri (US)
    • August 9, 2016
    ...the facts and, in that role, the jury is entitled to believe or disbelieve all or any part of the evidence before it." State v. Pierce , 433 S.W.3d 424, 432 (Mo.banc 2014). Schreiber's only other argument is that McGhee "presented no direct evidence 502 S.W.3d 674of discriminatory statement......
  • Martin v. Norman, Case No. 4:18CV00427 ERW
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • July 18, 2019
    ...Movant relies heavily on the Missouri Supreme Court's holdings in State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014) and State v. Pierce, 433 S.W.3d 424 (Mo. banc 2014), for the proposition that the trial court was required to submit the instruction. However, the appropriate standard of revie......
  • Request a trial to view additional results
34 cases
  • State v. Jackson, No. SC93108.
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 2014
    ...474 (Mo. banc 2002). Contrary to this well-established understanding, the principal opinion here and the companion case State v. Pierce, 433 S.W.3d 424, 2014 WL 2866292 (Mo. banc 2014), hold that a court always must instruct down if requested. This holding undermines the trial court's exclu......
  • Sprofera v. State, WD 82443
    • United States
    • Court of Appeal of Missouri (US)
    • October 27, 2020
    ...in August 2012, prior to the Missouri Supreme Court's decisions in State v. Jackson , 433 S.W.3d 390 (Mo. 2014), and State v. Pierce , 433 S.W.3d 424 (Mo. 2014). Application of Jackson and Pierce might well alter the analysis as to whether Sprofera was entitled to a lesser-included-offense ......
  • McGhee v. Schreiber Foods, Inc., WD 78744
    • United States
    • Court of Appeal of Missouri (US)
    • August 9, 2016
    ...the facts and, in that role, the jury is entitled to believe or disbelieve all or any part of the evidence before it." State v. Pierce , 433 S.W.3d 424, 432 (Mo.banc 2014). Schreiber's only other argument is that McGhee "presented no direct evidence 502 S.W.3d 674of discriminatory statement......
  • Martin v. Norman, Case No. 4:18CV00427 ERW
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • July 18, 2019
    ...Movant relies heavily on the Missouri Supreme Court's holdings in State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014) and State v. Pierce, 433 S.W.3d 424 (Mo. banc 2014), for the proposition that the trial court was required to submit the instruction. However, the appropriate standard of revie......
  • Request a trial to view additional results

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