State v. Sanders

552 S.W.2d 39, 1977 Mo. App. LEXIS 2573

• Court: Missouri Court of Appeals
• Decided: April 26, 1977
• Docket: 37420
• Status: Published

Opinions

CLEMENS, Presiding Judge.

A jury found defendant guilty of felonious assault and the trial court sentenced him to five years’ imprisonment. On appeal defendant raises a single point — that the trial court erred in giving the “hammer instruction” (MAI-CR 1.10) after it had learned the jurors were deadlocked at nine to three for conviction. The relevant proceedings:

After deliberating two hours the jury foreman sent the judge a note saying, “The Jury can’t agree on a verdict. There are 9 for guilty and 3 for not guilty.” Defense counsel moved for a mistrial. The jury was called into open court and answering the court’s question the foreman gave his “considered opinion” a verdict could not be reached and that there was no need for further deliberation. The court invited individual jurors to express a contrary view but none did. Defense counsel again moved for a mistrial. He then objected to the court having given the hammer instruction on the ground the court knew just how the jurors stood and that the instruction would coerce the three jurors holding out for acquittal. Over this precise objection the trial court gave MAI-CR 1.10. The jury retired and ten minutes later returned a unanimous guilty verdict. Judgment, sentence and appeal followed apace.

The novel issue here is the propriety of the hammer instruction when the jurors had told the court just how they were divided in their votes for conviction and acquittal.

A kindred but distinguishable issue arises when the court asks a deliberating jury about the status of their deliberations. The leading case is State v. Baker, 293 S.W.2d 900[4, 5] (Mo.1956).¹ There, the trial court asked the jurors “how you stand numerically but not how you stand,” and the jurors answered “ten to two.” In upholding the hammer instruction the court ruled: (Our emphasis).

“We have no doubt that it is common practice in this State, when the jury has deliberated for a considerable time, for the Judge to inquire how they stand numerically, without indicating what party or result they favor, for the purpose of ascertaining whether there is a reasonable probability of an agreement. Authorities differ as to the propriety of such an inquiry but we think the real question is whether there was any coercion of the jury in connection with it. See Annotation on Coercion, 85 A.L.R. 1420, 1450; 53 Am.Jur. 673, Secs. 954-955; 23 C.J.S., Criminal Law, § 1380, p. 1058. Such an inquiry has been barred in the federal courts by the decision of the United States Supreme Court in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, which held ‘that the inquiry itself should be regarded as ground for reversal’, saying that ‘in general its tendency is coercive.’ However, our view is that such an inquiry is not coercive per se but that it must be determined from the record of what is said and done at the time whether or not there is any indication of coercion.”

Basic principles of jury trials require jurors to perform their role free from extraneous factors. In the eyes of many jurors the trial judge can do no wrong; his word is law and jurors are sensitive to what he says and does. To this end, in State v. Taylor, 336 S.W.2d 495[6, 7] (Mo.1960), the court warned: “The practice of exchanging communications with a [deliberating] jury by the trial court is not commended.”

A host of cases concerns hammer instructions. (27 A Mo.Dig., Trial, ⅞=314, Urging or Coercing Agreement). None concerns the unusual factor here, i. e., giving the instruction when the judge knows “what party or result they favor” and the jurors know he knows. By MAI-CR 1.10 the court tells the jury it is desirable for them to bring in a unanimous verdict and that they should endeavor to reach such a verdict. Given to deliberating jurors who have not indicated which party they favor, the instruction is persuasive but not necessarily coercive. But here three jurors were for acquittal and each knew the judge was aware of their minority position. To them the judge’s expressed desire for a unanimous verdict could mean but one thing— that he felt the three jurors should reconsider their votes. We hold that under this particular circumstance the hammer instruction deprived those three jurors of the independence of thought to which all jurors — and the litigants — were entitled. We hold that giving MAI-CR 1.10 under the circumstances was error. We now consider its materiality.

In Anderson v. Bell, 303 S.W.2d 93 [8-10] (Mo.1957) the court held that the hammer instruction “should be given only on those infrequent occasions when it is reasonably certain that no coercion will be thereby exercised” and giving it may, under the circumstances of a given case, indicate that a verdict was the result of coercion.” The court added that it must determine whether coercion in fact occurred.

Having held that giving the hammer instruction was error, we look to its apparent coercive effect. This case was not uncomplicated; in two days of testimony the jurors had heard thirteen witnesses for the state and defendant. After deliberating two hours the jurors announced they stood nine to three for conviction and unanimously declared they were deadlocked. But after hearing the hammer instruction, the three jurors yielded to the nine — this in only ten minutes. We hold that the hammer instruction was in fact coercive and vitiated the guilty verdict.

Reversed and remanded.

DOWD, J., dissents. SMITH, J. concurs.

1 . Referred to as the “Missouri Rule” in Anderson v. Bell, 303 S.W.2d 93[9-12] (Mo.1957); State v. Smith, 431 S.W.2d 74[31, 32] (Mo.1968), and State v. Morris, 476 S.W.2d 485[4] (Mo.1971).