MATTHEW EDWARD PIERCE A/K/A MATTHEW PIERCE A/K/A MATTHEW E. PIERCE APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 04/18/2016
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. LISA P.
ATTORNEYS FOR APPELLANT: ROBERT B. MCDUFF JACOB WAYNE HOWARD
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BARBARA WAKELAND BYRD
IRVING, P.J., FAIR AND WILSON, JJ.
Matthew Edward Pierce was convicted of photographing, taping,
or filming a person in violation of an expectation of privacy
pursuant to Mississippi Code Annotated section 97-29-63 (Rev.
2014) and sentenced to a term of five years in the custody of
the Mississippi Department of Corrections, with three years
suspended, leaving two years of incarceration, and three
years of supervised probation. Pierce was required to
register as a sex offender. He now appeals. Because we find
reversible error, we reverse and remand.
first began seeing Pierce, a licensed massage therapist, when
he worked for a chiropractor in Long Beach, Mississippi. When
Pierce opened his own practice, S.A. followed him. S.A. was a
client of Pierce's for a total of two and a half years.
On October 2, 2014, S.A. attended a scheduled appointment
with Pierce. When she arrived at the venue for her
appointment, Pierce left the room, and S.A. undressed from
the waist up, as she normally did for her massage
appointments. Pierce returned and performed S.A.'s
massage. Upon completion of the massage, Pierce again left
the room to give S.A. privacy to re-dress. As S.A. was
dressing, she noticed that Pierce's iPhone was propped up
against the backsplash of a counter opposite the table where
the massage had taken place. The phone's camera was
facing where she was standing and getting re-dressed.
Concerned that Pierce might have been videotaping her while
she undressed or re-dressed, S.A. picked up the phone and saw
that it had indeed been videotaping. S.A. stopped the
videotaping and sent the video to herself in a text message.
When Pierce returned to the room, S.A. confronted him about
the video. Pierce denied that he had intended to film her.
S.A. reported the incident to Detective Brad Gross with the
Long Beach Police Department, and Pierce was subsequently
arrested on October 3, 2014.
On January 20, 2015, a grand jury of the First Judicial
District of Harrison County indicted Pierce for secretly
videotaping S.A in violation of section 97-29-63.
Pierce's trial was held in Harrison County Circuit Court
on April 5 and 6, 2016. Three witnesses testified: S.A.,
Detective Gross, and Pierce. Prior to opening statements, the
State orally moved "to either close the courtroom to the
general public during the victim's testimony or in the
alternative, when we do play the video to at least turn the
TV away from the general audience, " because the video
depicted S.A. while she was undressed. The State maintained
that a surprisingly large number of people had shown up to
watch the trial who had not been present at previous
proceedings, and that it wished to "limit the number of
people that actually see this video and see her naked."
The defense objected. The trial court granted the State's
motion and closed the courtroom for the entirety of
S.A.'s testimony, noting that over thirty people had
shown up for the trial who had not been present at previous
proceedings, and that the majority of the audience was
sitting on the defense's side of the courtroom.
After all three of the witnesses testified, the trial court
issued its jury instructions. Pierce proposed Instruction
D-2a, which provided the following:
The [c]ourt instructs the jury that if you find that the
cell-phone video was created as the result of accident and
without unlawful intent, then you shall find the Defendant,
Matthew Pierce, Not Guilty of Secretly Photographing, Taping,
or Filming [S.A.], in a state of undress, without her
permission and in violation of her expectation of privacy as
charged in the indictment, and return your verdict as
follows: "We, the Jury, find the Defendant, Matthew
Pierce, Not guilty of Secretly Photographing, Taping, or
Filming a person, in a state of undress, without her
permission in violation of her expectation of privacy as
charged in the indictment, by reason of accident.
State objected and the trial court denied the instruction,
finding that the instruction did not properly state the
charge, nor did it properly state the form of the verdict.
Further, the trial judge stated, "I'm not aware that
accident is a defense, per se, . . . to this type of
charge"; however, the court provided: "If you guys
can find [an instruction] that has to do with accidents
specific to this type [of] charge, then I'm more than
happy to consider it." Further, the court held that the
exclusion of the defense's proposed instruction did not
prohibit defense counsel "from arguing that there was no
intent because that is in the elements instruction."
The jury began its deliberations, and soon after sent a note
(1) requesting the definition of "lewd, licentious or
indecent intent"; (2) asking, "If S.A. saw camera
[sic] does that change 'expectation of
privacy'[?]"; and (3) asking, "If it was by
accident[, ] is it same thing same [sic] as knowing or is it
lewd, licentious or indecent intent[?]" No further
instruction was given to the jury. The jury next sent a note
stating that it was deadlocked. After further deliberation,
the jury finally found Pierce guilty of the charge against
Pierce filed a motion for a new trial or a judgment
notwithstanding the verdict (JNOV), which the trial ...