Cole v. State, 10906

• Decision Date: 29 September 1978
• Docket Number: No. 10906,10906
• Citation: 573 S.W.2d 397
• Parties: Delores COLE, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 397

573 S.W.2d 397

Delores COLE, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 10906.

Missouri Court of Appeals, Springfield District.

Sept. 29, 1978.

Motion for Rehearing and/or Transfer Denied Oct. 20, 1978.

Application to Transfer Denied Dec. 18, 1978.

Jack N. Bohm, Stoup & Bohm, Kansas City, for movant-appellant.

John Ashcroft, Atty. Gen., Eric Martin, Asst. Atty. Gen., Jefferson City, for respondent.

Before TITUS, P. J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Movant Delores Cole appeals from a denial of her Rule 27.26 ¹ motion to set aside a judgment and sentence for murder in the second degree. On movant's direct appeal from her conviction this court affirmed the judgment. State v. Cole, 547 S.W.2d 494 (Mo.App.1977). After holding an evidentiary hearing on the motion, the trial court, in denying it, made findings of fact and conclusions of law as required by Rule 27.26(i).

Movant's first "point relied on" is that a series of incidents, each taking place after the jury had commenced its deliberations, was "so coercive as to deny movant her constitutional right to trial by jury," and that the trial court erred in finding otherwise. The incidents of which complaint is made involved actions on the part of the trial judge in dealing with the jury. They are: (1) giving MAI-CR 1.10, the "hammer" instruction, (2) eliciting the information that the jury was split 10 to 2, (3) refusing to excuse juror Beard for health reasons, (4) giving a "second informal hammer instruction," and (5) making this statement to the jury: "Gentlemen, the court, in view of a 10 to 2 split, at this time is going to ask you to return tomorrow morning for further deliberations."

Rule 27.26(b)(3) reads: "A proceeding under this Rule ordinarily cannot be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal."

The distinction between "mere trial errors" and "trial errors affecting constitutional rights" is sometimes difficult to make. Both classes of errors may involve the same general field of the law. The magnitude of the error, as distinguished from its type, may be the factor which controls its classification. ²

Each of the five incidents of which movant complains was mentioned and four were challenged in her motion for new trial. All were abandoned on her original appeal. Unless it may properly be said that the challenged incidents were "trial errors affecting constitutional rights," movant's first point may not be raised in this proceeding. Covington v. State, 467 S.W.2d 929, 930(1, 2) (Mo.1971). Whether or not movant is properly entitled to raise her first point in this proceeding, a question which is left unresolved, this court has reviewed the challenged incidents and has concluded that there was no error of either class and that movant's first point has no merit.

Each of the five incidents occurred near the close of the first day of the two-day trial. Having commenced its deliberations at 2:32 p. m., the jury returned to the courtroom, without reaching a verdict, at 5:02 p. m. Incident 1 then took place. The jury retired for further deliberations at 5:08 p. m. and returned to the courtroom at 5:25 p. m. Incidents 2, 3, 4 and 5 then took place. At 5:35 p. m. the court recessed the trial until the following morning. On that day deliberations were resumed at 9:00 a. m. and the verdict was returned at 10:13 a. m The giving of MAI-CR 1.10 is discretionary with the trial court. State v. Carroll, 562 S.W.2d 772, 773(4) (Mo.App.1978). Here it was given after the jury had deliberated two hours and thirty minutes without reaching a verdict. The giving of MAI-CR 1.10 has been approved after a jury has deliberated a longer period of time, State v. Cook, 512 S.W.2d 907, 910(6) (Mo.App.1974), and a shorter period of time, State v. Doepke, 536 S.W.2d 950, 951(6) (Mo.App.1976).

The jury foreman informed the court that four or five ballots had been taken, that some changes had occurred in the balloting, and that the last two ballots were the same. The following then occurred:

"THE COURT: Do you believe that further discussions at this point would assist you?

MR. JOHNSTON: You mean from

THE COURT: Those among yourselves?

MR. JOHNSTON: No, sir."

Thereupon the court gave MAI-CR 1.10. The verdict was not returned until the following day and after additional deliberations, in two steps, of one hour and thirty minutes. Under these circumstances the record does not demonstrate an abuse of discretion on the part of the trial court in the giving of MAI-CR 1.10. State v. Letourneau, 515 S.W.2d 838, 844(9) (Mo.App.1974) and authorities there cited.

It was not "coercive per se" for the trial judge to elicit the information that the jury was split 10 to 2. State v. Talbert, 454 S.W.2d 1, 4(7) (Mo.1970); State v. Smith, 431 S.W.2d 74, 86(31) (Mo.1968). Unlike the situation in State v. Sanders, 552 S.W.2d 39 (Mo.App.1977), upon which movant principally relies, the trial court here elicited only the numerical aspect of the split and did not know the issue on which the jury was split nor how the majority stood.

When the jury returned to the courtroom at 5:25 p. m. the court told juror Beard that the court had been advised that Beard "may have a health problem." A colloquy between the court and Beard ensued. At the outset Beard told the court, "I would rather request to get out on account I don't feel good." The court said, "Well, I can't release you at this point." Movant challenges the propriety of the latter remark. A reasonable construction of the statement, however, in context with the rest of the colloquy is that the court meant that he was going to ask Beard several questions before reaching a decision on the matter of excusing him.

Although the specific nature of Beard's illness, if such it was, is not disclosed by the record, Beard told the court that he felt his health would be endangered "by further deliberation at this time." That statement doubtless figured in the court's decision to grant a recess until the following day. The court inquired of Beard whether or not his health "would permit further deliberations tomorrow morning"; Beard replied that he did not know. The court expressed solicitude for Beard's condition and stated he would not allow the proceeding to have any ill effect upon Beard's health. It was in conjunction with that statement that the court made the remark which movant labels "a second hammer instruction." The remark was, "It is always advantageous to give a verdict in a given case." Viewing the latter remark in its context, this court finds, as did the trial court, that it does not possess the quality of coerciveness which movant attributes to it.

Further questioning by the court with regard to Beard's ability to deliberate the following morning elicited this response from Beard: "I wouldn't say about that because it depends on how I get to feeling."

In recessing the trial until the following day the court said to the jury: "Gentlemen, the court, in view of the 10 to 2 split, at this time is going to ask you to return tomorrow morning for further deliberations." The foreman had previously informed the court that the jury was so split.

The trial court did not abuse its discretion in refraining from excusing juror Beard immediately upon receiving his request and in questioning Beard concerning his ability to resume deliberations on the following day. There is nothing in the record to show that Beard's indisposition, whatever it was, was one of an emergency nature. Beard's request to be excused was short of being an insistent one, and Beard himself agreed with the trial court that his ability to resume deliberations the following day could better be gauged when that day came. The record of the proceedings on the second day makes no reference to Beard or his condition. During the following the colloquy between the court and Beard, counsel for movant made no objection to the incident and requested no relief of any nature.

Although this court has access to the conversation between Beard and the trial court, the latter had the opportunity to observe Beard's condition and the degree of fervor of his complaints. Clearly the trial court was in a superior position to evaluate the situation and determine the necessity for excusing Beard. The record does not demonstrate that the trial court abused its discretion in the handling of the Beard incident. In this proceeding the trial court found that such handling was "not coercive." This court holds the finding to be not "clearly erroneous." Rule 27.26(j).

The trial court found that, viewed in context, the passing reference to the 10 to 2 split, made by the court in recessing the trial, was not tantamount to coercion. This court agrees with that finding and holds that it was not "clearly erroneous." Rule 27.26(j).

Movant's second "point relied on" is that movant was deprived of effective assistance of counsel at the murder trial in that her trial attorneys, Claude T. Wood and Dale H. Close, were derelict in six particulars. Four of the charges of dereliction pertain to counsel's conduct in the trial court and two pertain to counsel's conduct in this court.

Counsel's alleged derelictions in the trial court are set forth in these sub-points:

1. Failure to make an adequate investigation.

2. Failure to adduce evidence of movant's good character.

3. Failure to "offer to the trial court a plain statement of the reasons for the admissibility" of certain evidence because of counsel's "lack of preparation or unfamiliarity with the rules of evidence."

4. Failure to cross-examine the state's witnesses concerning certain conditions existing in the tavern at the time of the offense.

"The burden of proof to establish the charge...