Salkil v. State

736 S.W.2d 428
CourtMissouri Court of Appeals
DecidedJuly 7, 1987
DocketNo. WD 38306
StatusPublished
Cited by1 cases

This text of 736 S.W.2d 428 (Salkil 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
Salkil v. State, 736 S.W.2d 428 (Mo. Ct. App. 1987).

Opinion

PER CURIAM.

Following a jury trial, Salkil was found guilty of felonious restraint and rape and he was sentenced to consecutive terms of two and five years imprisonment, respectively. After an unsuccessful direct appeal, State v. Salkil, 659 S.W.2d 330 (Mo. App.1983), Salkil filed a Rule 27.26 motion. His motion was overruled following an evi-dentiary hearing and he now appeals. For the reasons set forth below, the judgment is reversed and the case remanded for a new trial.

The facts of the underlying crime are set forth in our earlier opinion, Salkil, supra at 331-32, and they need not be recounted here. On this appeal, Salkil challenges the motion court’s findings on three claims of ineffective assistance of counsel. Specifically, he reasserts that his case was prejudiced by counsel’s failure to investigate and subpoena certain character witnesses, to request that the jury be polled after a question arose concerning the validity of the verdict, and to file a written motion to permit questions regarding the character of the complaining witness.

Because we find the issue raised by Salk-il’s second point to be dispositive of this appeal, we proceed to consideration of that matter. Salkil’s claim is that his trial counsel was ineffective in failing to have the jury polled after a question arose concerning the validity of the verdict. The confusion over the verdict arose as a result of the verdict forms used in the case.

The verdict form dealing with the rape offense was as follows:

VERDICT FORM
(a) Guilty and assessing punishment.
As to Count II, we, the jury, find the defendant Steven Ray Salkil guilty of rape by forcible compulsion as submitted in Instruction No.--
We assess and declare the punishment at-
(b) Not Guilty.
As to Count II, we, the jury find the defendant Steven Ray Salkil not guilty.

[430]*430Foreman

The verdict form for felonious restraint was in the same format. When the verdict was returned, it was read by the clerk with the following results:

THE CLERK: “As to Count I, we, the jury, find the defendant, Steven Ray Salkil, guilty of felonious restraint as submitted in Instruction No. 5. We assess and declare the punishment at two years.”
“As to Count I, we, the jury, find the defendant, Steven Ray Salkil, not guilty.”
“As to Count II, we, the jury, find the defendant, Steven Ray Salkil, guilty of rape by forcible compulsion, as submitted in Instruction No. 7. We assess and declare the punishment at five years.”
“As to Count II, we, the jury, find the defendant, Steven Ray Salkil, not guilty.”
JUROR: We marked that wrong.
THE FOREMAN: We marked it wrong.
THE COURT: They didn’t mark that part of it.
THE CLERK: Okay.
THE COURT: Check the other one. You read that same thing on the other one.
THE CLERK: Okay. Just the “A”?
THE COURT: Just the “A” is what they—
THE CLERK: Okay.
THE COURT: And that is signed by the foreman?
THE CLERK: “A” is signed by the jury foreman.

When the verdict forms were returned, entries had been made in the blanks provided for the instruction number and the assessment of punishment and they had been signed by the foreman. No portion of the form had been stricken.

As indicated by the clerk’s reading of the verdict and the jurors’ statements that it had been marked incorrectly, the verdict forms submitted in this case were inherently confusing. Their ambiguity arose from the fact that the provision for a finding of either guilt or innocence was made on the same sheet of paper and further complicated by inclusion of only one signature line for the foreman applicable to either finding.

As demonstrated by the record, Salkil’s attorney stood silent in the face of such confusion. Salkil insists that his failure to have the jury polled constituted ineffective assistance. The motion court denied this claim, noting that there was no evidence that polling the jury would have made any difference and that the confusion in the form of the verdict did not prejudice mov-ant since the jury’s intent was apparent. The court concluded that the contention was, in any event, a matter for direct appeal.

In its final conclusion the motion court overlooks the nature of movant’s claim. The allegation of ineffectiveness was properly raised in the motion for post-conviction relief. We tend to agree, however, that polling the jury as a means of clarifying the verdict would not have necessarily resolved the inconsistency. See State v. Johnstun, 674 S.W.2d 86, 92 (Mo.App.1984) (holding that where inconsistent verdicts have been returned the better course is to return the jury for further deliberations to correct the problem). But see United States v. Howard, 507 F.2d 559, 563 (8th Cir.1974) (holding that any ambiguity in the verdicts was cured by polling).

The purpose of polling the jury is to ascertain for a certainty in open court whether each juror in fact concurs in the verdict as returned or whether his apparent assent was the result of mistake or coercion. Wharton’s Criminal Procedure t 586 (C. Torcia 12th ed. 1976); American Bar Association Standards for Criminal Justice 15-4.5 (2nd ed. 1986 Supp.); 23A C.J.S. Criminal Law § 1392 (1961). These sources uniformly agree that there is no generally prescribed mode of polling the jury although Wharton’s, swpra and C.J.S. note that the usual practice is to ask each juror simply, “Is this your verdict?” Id. The ABA Standards also leave the specific form of the question an open matter, stating that: “The precise procedures are within the discretion of the trial judge, and any procedure that makes clear each [431]*431juror’s position is sufficient.... The poll should be conducted so as to obtain an unequivocal expression from each juror.” ABA Standards, supra.

If a poll had been conducted in the case at bar immediately following the proceedings set forth above and by simply asking the question: “Is this your verdict?”, the poll would have clarified nothing. If, on the other hand, the judge or the clerk had restated the verdict by excluding the (b) portion and then conducted the poll, affirmative responses from the jurors would have clarified their intent to find Salkil guilty. The determination of the beneficial effect of polling the jury under the circumstances presented here is thus speculative. Accordingly, the trial court cannot be faulted in its conclusion that Salkil failed to establish any prejudice caused by his attorney’s failure to request that the jury be polled.

We do not, however, so readily dismiss the very real problem of the verdict inconsistencies.

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Related

Garrett v. State
778 S.W.2d 389 (Missouri Court of Appeals, 1989)

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Bluebook (online)
736 S.W.2d 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salkil-v-state-moctapp-1987.