250 So. 3d 493
Miss. Ct. App.2018Background
- Defendant Matthew Pierce, a licensed massage therapist, was videotaped by the victim S.A. undressing after a massage; S.A. discovered a one minute, fourteen second iPhone video recording and reported it. Pierce was arrested and indicted under Miss. Code Ann. § 97-29-63 for secretly photographing/filming a person in a state of undress.
- At trial the State moved to close the courtroom (or at least turn the TV) during the victim’s testimony because the video showed S.A. undressed; the court closed the courtroom for the entirety of S.A.’s testimony over defense objection.
- Defense requested an "accident" jury instruction (if jurors found the recording was accidental, they must acquit); the court denied the instruction but permitted argument that intent was an element addressed elsewhere in instructions.
- During deliberations the jury asked questions about the definition of "lewd, licentious or indecent intent," whether seeing the camera affected expectation of privacy, and whether accident equated to knowing intent; the jury later convicted Pierce.
- Pierce moved for a new trial/JNOV; denied. On appeal the court reversed and remanded, finding reversible error both for closing the courtroom during the victim’s entire testimony (public-trial right) and for refusing the accident jury instruction.
Issues
| Issue | State's Argument | Pierce's Argument | Held |
|---|---|---|---|
| Whether closing the courtroom during S.A.’s entire testimony violated defendant’s public-trial right | Closure was necessary to protect victim from embarrassment and logistics made narrower measures infeasible; trial court properly considered factors | Closure was broader than necessary; court could have turned TV away, delayed showing video, or closed only while video played | Reversed: closure for entire testimony was overly broad; right to public trial violated—closure may be limited to the time the video is played on remand |
| Whether the trial court adequately considered alternatives to full closure | Trial judge considered alternatives and found them not feasible; public exclusion appropriate given sensitivity | Trial judge failed to consider or adopt reasonable alternatives and the burden to protect public-trial rights rests with court | Court held Presley requires trial courts to consider alternatives; failure here requires reversal as structural error |
| Whether denial of an "accident" jury instruction was proper | Elements instruction (requiring lewd, licentious or indecent intent) sufficiently covered intent; counsel could argue accident in closing | Accident was sole defense theory; precedent requires giving an accident instruction when supported by evidence | Reversed: refusal to give accident instruction was reversible error because accident was the defense theory and supported by testimony |
| Sufficiency of evidence as to intent (implied from facts and jury questions) | Video showed victim undressed and prosecution emphasized setup and evidence of intent | Defense testified phone may have been turned on accidentally while timing and with oily fingers | Court did not rule on ultimate guilt here; errors required new trial so sufficiency not finally resolved |
Key Cases Cited
- Waller v. Georgia, 467 U.S. 39 (1984) (four-part test for courtroom closure: overriding interest, narrowness, consideration of alternatives, findings)
- Presley v. Georgia, 558 U.S. 209 (2010) (trial courts must consider alternatives to closure even if parties do not propose them)
- Neder v. United States, 527 U.S. 1 (1999) (denial of public trial is a structural constitutional error requiring automatic reversal)
- Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) (structural-error discussion; public-trial violations affect review)
- Gannett River States Publishing Co. v. Hand, 571 So.2d 941 (Miss. 1990) (adoption of Waller test under Mississippi law)
- Tillman v. State, 947 So.2d 993 (Miss. Ct. App. 2006) (upholding closure in sensitive sexual-abuse context where facts warranted exclusion)
- Lee v. State, 529 So.2d 181 (Miss. 1988) (public exclusion may be appropriate to avoid witness embarrassment)
- Brown v. State, 39 So.3d 890 (Miss. 2010) (defendant entitled to accident instruction when supported by evidence)
- Chinn v. State, 958 So.2d 1223 (Miss. 2007) (same principle — accident instruction required when theory of defense)
- Triplett v. State, 666 So.2d 1356 (Miss. 1995) (accident instruction precedent)
- McTiller v. State, 113 So.3d 1284 (Miss. Ct. App. 2013) (accident-instruction rule applied in non-homicide case)