State v. Pierce

• Decision Date: 18 October 2016
• Docket Number: WD78739
• Parties: STATE OF MISSOURI, Respondent, v. BRYAN M. PIERCE, Appellant.
• Court: Missouri Court of Appeals

STATE OF MISSOURI, Respondent,
v.
BRYAN M. PIERCE, Appellant.

WD78739

MISSOURI COURT OF APPEAIS WESTERN DISTRICT

October 18, 2016

Appeal from the Circuit Court of Jackson County, Missouri
Honorable Wesley Brent Powell, Judge

Before Division One: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

Mr. Bryan M. Pierce appeals his conviction following a bench trial for the class B felony of possession of child pornography, for which he was sentenced as a prior and persistent offender to fifteen years in the Department of Corrections. He claims that his due process rights were violated because the trial court misunderstood the range of punishment in imposing sentence and that the court erred in overruling his motion to suppress evidence because he was incapable of consenting to a search of his premises and no exception applied to allow a warrantless search. We affirm in part, reverse in part, and remand for resentencing.

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Viewing the evidence in the light most favorable to the trial court's ruling on his motion to suppress,¹ Kansas City police officers were dispatched to Mr. Pierce's home in June 2013 to check on an emotionally disturbed person, following Mr. Pierce's call to a hotline about hearing voices, including his cat, telling him to stab himself. When the officers arrived, Mr. Pierce came out onto the front porch and repeated to Officers Robert Erpelding and Paul Russo that voices were telling him to stab himself in the heart and that his cat also wanted him to stab himself with a knife. Officer Erpelding offered to check the residence to make sure it was safe and confirmed with Mr. Pierce before officers entered that no one else lived in the home. He remained outside with Mr. Pierce, calling an ambulance, while Officer Russo and Sergeant Patrick Kelly, who had arrived at the home, went inside to "clear the residence" at Mr. Pierce's request. Mr. Pierce left in the ambulance, and Officer Erpelding was called inside to confirm whether still pictures, moving in a continuous "slide show" on the screen of a large computer monitor, depicted girls younger than age 17, some of whom were naked, posing in a sexually suggestive manner. The computer monitor was located in plain view in a first-floor room that also contained a mattress. Sergeant Kelly moved the computer mouse, and the images disappeared. Concerned whether the images were streaming from the Internet or were on the computer's hard drive, which could affect their preservation, Sergeant Kelly also opened a "My Pictures" computer-file folder and found similar images there. The officers removed the computer and its associated hardware for backing up and processing as evidence. A warrant was secured to search

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the computer, and Detective Kimberly Shirley-Williams took it to an FBI regional forensic computer lab for examination.

A July 2014 grand jury indictment charged Mr. Pierce with one count of the class B felony of possession of child pornography under section 573.037.² Mr. Pierce filed a motion to suppress in February 2015 arguing that the evidence was the fruit of a warrantless search and seizure in violation of his constitutional rights. The circuit court conducted a suppression hearing, and defense counsel argued that, as an emotionally disturbed person, Mr. Pierce was unable to consent to a search of his residence and if he had consented to anything it was to "clear the residence" which is not the same as a search, and that his rights were violated when the sergeant touched the computer mouse without a warrant and started to search the hard drive. The court sua sponte suggested that the issue was whether exigent circumstances might have justified the search, stating in this regard,

My thought too on this was - that it's almost not even a consent issue. It's really almost an exigent exchange situation, that they've got someone who is emotionally disturbed who's claiming there's voices and they may have to clear or look through the residence to make sure there's not - you know, there's not a safety issue in the house.

Invited to address this issue, defense counsel contended that the officers had no need to "clear the residence," because Mr. Pierce had told the officers he lived alone and an ambulance had already been called for him. "So I don't know why they would need to, for any other individual safety or for Mr. Pierce's safety, need to clear the residence when clearly Mr. Pierce was already going to be going to the hospital, Your Honor," counsel stated.

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In its order denying the motion to suppress, the circuit court agreed that Mr. Pierce, as an "emotionally disturbed party," could not voluntarily consent to a search of his residence. The court concluded that entry into the home was lawful, however, finding the officers "justified under this emergency situation [i.e., the defendant hearing voices telling him to harm himself,] to sweep or 'clear the residence' and determine if anyone was in the home." The court also ruled that the subsequent search and seizure of the computer was lawful "under the plain view and inevitable discovery doctrine."

The circuit court granted Mr. Pierce's motion to waive a jury trial. The bench trial began in April 2015 with the introduction of evidence that Mr. Pierce was a prior and persistent offender.³ Mr. Pierce again objected to the introduction of the State's evidence seized from the computer, and the court again denied the motion. He was granted a continuing objection, but further asserted objections to the seized evidence during trial. Finding that more than twenty specific images taken from the computer depicted underage girls engaging in sexually explicit conduct, the court found Mr. Pierce guilty as charged.

During the sentencing hearing, the circuit court stated, "having proven the defendant up as a prior and persistent offender, it's my understanding that the defendant, his range of punishment was, pursuant to statute, extended to ten to 30 years, is that correct, Mr. Horsman?" The prosecutor responded by stating, "We had agreed

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to a lid of 20, Your Honor," and the court then asked, "A lid of 20 in exchange for the waiver of a jury trial, is that correct?" The prosecutor and defense counsel verified that this was the agreement. After taking evidence, exhaustively reviewing the factors it had considered in determining the sentence, and hearing Mr. Pierce's plea for clemency based on his efforts to overcome his addictions and professed innocence, as well as the arguments of counsel, the court imposed a fifteen-year sentence of incarceration. Mr. Pierce timely filed this appeal.

Legal Analysis Sentencing Error

As to the first point, Mr. Pierce argues that, by stating that the enhanced range of punishment would be extended to ten to thirty years, the court had a "materially false understanding of the possible range of punishment" and, thus, violated his due process rights. Because no objection to the circuit court's statement about the range of punishment was made during the sentencing hearing, we must review the matter, if at all, for plain error. Rule 30.20.⁴ Plain-error review is a two-step process. State v. Sauerbry, 447 S.W.3d 780, 790 (Mo. App. W.D. 2014). We first "determine whether the claim of error 'facially establishes substantial grounds for believing that manifect injustice or miscarriage of justice has resulted.'" Id. (quoting State v. Martin, 103 S.W.3d 255, 262 (Mo. App. W.D. 2003)). And second, "if the error is obvious, this Court may consider whether a miscarriage of justice will occur if the error is left uncorrected." Id.

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Here, the circuit court erroneously stated that Mr. Pierce's enhanced range of punishment was ten to thirty years. Neither the prosecutor nor defense counsel corrected this erroneous statement, despite being asked if it was correct. Under section 558.011.1(2), the range of punishment for a class B felony is five to fifteen years. Although Mr. Pierce was convicted of a class B felony, because he was a prior and persistent offender, the total authorized maximum term of imprisonment was "any sentence authorized for a class A felony." § 558.016.7(2). The sentence authorized for a class A felony is ten to thirty years or life imprisonment. § 558.011.1(1). As this Court stated in State v. Cowan, 247 S.W.3d 617, 619 (Mo. App. W.D. 2008), the persistent-offender enhancement statute "only extends the maximum sentence but does not alter the minimum sentence." Because "[a] sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual outcome," we remanded in Cowan for resentencing. Id. (quoting Wraggs v. State, 549 S.W.2d 881, 884 (Mo. banc 1977)). As here, the circuit court in Cowan had recited the incorrect range of punishment—ten to thirty years, rather than five to thirty years. Id.

In Cowan, however, the appellant had properly preserved the error by raising it during the sentencing hearing. While the error here is obvious, because we are reviewing the matter for plain error, we must further determine whether a miscarriage of justice will occur if the error is not corrected. Mr. Pierce cites State v. Olney, 954 S.W.2d 698, 700-01 (Mo. App. W.D. 1997), and State v. Taylor, 67 S.W.3d 713, 716 (Mo. App. S.D. 2002), to support his argument that plain-error review and remand are

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appropriate when a court has a mistaken understanding about the applicable punishment. In both cases, the circuit courts had imposed consecutive sentences, mistakenly believing that they lacked discretion to do otherwise under the armed criminal action statute. In Olney, this Court was reluctant to impinge on the trial court's sentencing authority, even though it acknowledged that the State had made a persuasive case that...