Purvis v. State

215 S.W.3d 745, 2007 Mo. App. LEXIS 349, 2007 WL 602098
CourtMissouri Court of Appeals
DecidedFebruary 28, 2007
DocketNo. 27681
StatusPublished
Cited by3 cases

This text of 215 S.W.3d 745 (Purvis v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Purvis v. State, 215 S.W.3d 745, 2007 Mo. App. LEXIS 349, 2007 WL 602098 (Mo. Ct. App. 2007).

Opinion

DANIEL E. SCOTT, Judge.

A jury convicted Appellant Scott Purvis (“Movant”) of driving while intoxicated. He was placed on probation, but violated it, and was sent to prison. His Rule 29.15 post-conviction motion was denied after ev-identiary hearing. His appeal therefrom raises two points stemming from a jury note sent less than two hours into its deliberations, asking: “Do we have to be unanimous1 in our decision. If so this cannot be accomplished.” The trial court and counsel discussed how to respond:

THE COURT: Now, they have only been out since 3:20. They are going to have the same problem that the next jury’s going to have, and the next jury after that’s going to have, I think. Now, there is an instruction — well, there’s a hammer — no, I guess this is only if there was going to be sentencing. There’s only the hammer. I don’t know what this is; I have no idea what the split is. My intent is to tell them that— to — that, yes, you are bound by the instructions which tells you that it has to be unanimous and—
[PROSECUTOR]: You must come to a decision in the case.
THE COURT: Well, I’m not going to say you must come to — you need to follow the instructions and keep deliberating.
[PROSECUTOR]: Might be a little too early to hammer them.
THE COURT: Because that’s almost close to a hammer of saying you must come to a decision.
[PROSECUTOR]: Okay.
THE COURT: That’s why I was a little concerned about that language. But—
[PROSECUTOR]: I should have warned you that that case in Jackson County was a hung jury.
THE COURT: I probably also will send an announcement in and ask them about ordering dinner, to give them the understanding that we’re not leaving soon.
[DEFENSE COUNSEL]: Fair enough, Judge.
THE COURT: Okay. Here is what I’ve written in the answer: “You all have to agree on a verdict, and you are instructed to follow the instructions.” Anything, Mr. Crank, that you want to add or object to?
[PROSECUTOR]: No, Your Honor.
THE COURT: Mr. Collins?
[DEFENSE COUNSEL]: No, Your Honor.

Thereafter, the jury deliberated two more hours before reaching its verdict.

Jury Coercion

Movant claims the trial court’s reply coerced the jury; thus the trial court erred (Point I) and trial counsel was ineffective for failing to object (Point II). The motion court concluded otherwise, and Rule 29.15(k) limits us to deciding if that court’s conclusions are clearly erroneous. Thus, we begin with the motion court’s analysis of the coercion issue, which starts by observing the jury deliberated less than two hours before sending the note:

The Court declined to give the jury the hammer instruction at that point, believing apparently that they had not been out long enough to justify the instruction. (Tr. P. 250) He also properly re[747]*747fused to tell the jury that they had to come to a decision in the case as requested by the Prosecutor. (Tr. P. 250) Such a statement would have been close to the impermissibly coercive instructions given in State v. Hayes, 563 S.W.2d 11 (Mo.App.1978) and State v. Burns, 808 S.W.2d 1 (Mo.App. E.D.1991) cited by the Movant. The Court’s response took neither course, but simply stated:
“You all have to agree on a verdict, and you are instructed to follow the instructions.”
Taken in context, the response answers the direct question posed by the jurors and refers the jurors to the instructions which also direct that the verdict must be unanimous and agreed to by each juror. Neither Burns, nor Hayes are apropos of the facts of this case. In Bums, in addition to other major problems with the verdict, the Court told the jury it must reach a verdict; ten minutes later, after hours of deliberation, the jury returned a verdict as directed. In Hayes, the Court went so far as to tell the jury that it could only return one of three possible verdicts. Much closer to the facts in this case is State v. Campbell, 147 S.W.3d 195 (Mo.App. S.D.2004). In Campbell, the jury had been out for an hour and forty minutes when it indicated that it was deadlocked. The Court did not give a formal hammer instruction, but sent the jury back to deliberate further, indicating that he wanted them to return to the jury room and
... fill out the appropriate verdict forms to which you unanimously agree, to be obviously signed by the foreperson.
The jury then deliberated for an additional two hours and fifteen minutes. The jury in this case, after receiving the Court’s response, deliberated for an additional two hours. Missouri courts have found that further deliberations of as little as thirty minutes are an indication that the verdict was not coerced. See, e.g., State v. Johnson, 948 S.W.2d 161, 164 (Mo.App. E.D.1997); State v. Jackson, 896 S.W.2d 77, 80 (Mo.App. W.D.1995). The Campbell court, citing [State v.] Hinkle, [987 S.W.2d 11 (Mo. App. 1999)] noted that there is no error when the judge makes a comment not requiring the jury to find a verdict, but merely to continue its deliberations. (Campbell at 203) This Court did not even direct the jury to continue its deliberations, merely advised them that the verdict must be unanimous.
The situation in this case is somewhat akin to State v. Goudeau in which the Court’s comment, taken out of context, could be construed as coercive. However, under the totality of the circumstances, the Court of Appeals found that no pressure had, in fact, been placed on the jury to return a verdict or to return with a verdict within a particular span of time. Goudeau at p. 417) In State v. Jackson, op.cit., the Court set out the test for a coerced verdict:
The verdict is only considered coerced when under the totality of the circumstances it appears that the trial court was virtually directing that a verdict be reached and by implication indicated it would hold the jury until a verdict was reached. (Jackson, at p. 80)
That is not the case here and Point One is denied.

We apply Rule 29.15(k)’s clearly erroneous standard by considering the whole record to see if we are firmly and definitely convinced that a mistake was made. Harp v. State, 209 S.W.3d 560, 562 (Mo.App. 2007). To the contrary, we agree with the motion court’s conclusions. We particularly note the trial court’s reply “instructed” [748]*748the jurors “to follow the instructions,”2 and they deliberated two more hours thereafter.

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Cite This Page — Counsel Stack

Bluebook (online)
215 S.W.3d 745, 2007 Mo. App. LEXIS 349, 2007 WL 602098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/purvis-v-state-moctapp-2007.