State v. Conway, 52473

• Citation: 740 S.W.2d 320
• Decision Date: 06 October 1987
• Docket Number: No. 52473,52473
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gerald CONWAY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 320

740 S.W.2d 320 STATE of Missouri, Plaintiff-Respondent,
v.
Gerald CONWAY, Defendant-Appellant. No. 52473. Missouri Court of Appeals,
Eastern District,
Division Four. Oct. 6, 1987.
Motion for Rehearing and/or Transfer Denied Nov. 6, 1987.
Application to Transfer Granted Dec. 15, 1987.

Page 322

Dave Hemingway, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

CRANDALL, Judge.

Defendant, Gerald Conway, was charged with burglary in the first degree, Count I; stealing a firearm, Count II; and resisting arrest, Count III. The trial court accepted jury verdicts of guilty on Counts I and II and not guilty on Count III. Defendant was sentenced as a persistent offender to twenty-five years' imprisonment on Count I and a concurrent term of fifteen years' imprisonment on Count II. Defendant appeals, claiming seven points of trial court error. We affirm the conviction arising out of Count I and reverse and remand the conviction arising out of Count II.

Because defendant does not challenge the sufficiency of the evidence, we briefly review the evidence in the light most favorable to the verdict. On August 29, 1984, Mary Roemerman and her husband attended a concert. They returned home about 12:30 a.m. The Roemermans have two sons, Mike and Danny, who share a bedroom. At about 1:30 a.m., Mary went to her sons' bedroom to see whether Mike was home. As she entered the room she noticed that Danny's rifle case was on his bed, and that the bedroom door would not open completely. The bedroom light was on. Mary looked behind the door and saw a black man wearing blue jeans and no shirt. She described him as having "wild hair" and a beard and mustache. She stared at him for approximately one minute, then ran to wake her husband and Danny, who called the police. The man disappeared.

Officer Daniel Reeder testified that after the police were called he received a description of the burglar from another officer. Subsequently, he observed defendant driving in an erratic manner. Based on defendant's driving, the vicinity of defendant's location to the Roemerman home, and the burglar's description Reeder earlier had received, he pursued defendant. When defendant eventually stopped, Reeder observed him drop a rifle from the driver's window. After a brief struggle, Reeder arrested defendant. Within one hour after calling the police Ms. Roemerman was taken to the arrest site where she identified defendant as the man who had been in her sons' bedroom.

Defendant first claims the trial court erred in accepting the guilty verdict on Count II because the verdict resulted from judicial coercion of a juror.

After some deliberation, the jury indicated that it had reached a verdict. The foreman tendered the completed verdict forms finding defendant guilty of Count I, burglary in the first degree, and Count II, stealing a firearm, and not guilty of Count III, resisting arrest. Defendant then requested that the jury be polled as to the guilty verdicts. The following excerpts from that poll form the basis for defendant's claim of error:

BAILIFF ENRIGHT: Toni Montgomery, is that your verdict?

JUROR MONTGOMERY: On all three?

BAILIFF ENRIGHT: On the first two? On Count I and II.

JUROR MONTGOMERY: Half.

BAILIFF ENRIGHT: Martha Vonderheid--

THE COURT: Wait a minute. Is that your verdict as to--on the Burglary Count, Count I, is that your verdict?

JUROR MONTGOMERY: Yes.

Page 323

THE COURT: And on the Stealing count, Count II, is that your verdict?

JUROR MONTGOMERY: I said not guilty. I don't understand. We all had to agree on the final--is that correct?

THE COURT: Yes ma'am.

JUROR MONTGOMERY: Okay. I agreed. On the first two counts. Yes.

THE COURT: Is that your verdict on the Stealing count, Count II, is that your verdict?

JUROR MONTGOMERY: No.

[PROSECUTOR]: Judge, may we approach the bench?

THE COURT: You may.

At that time, defendant's attorney requested a mistrial, but the trial judge did not rule on it. He said he would finish polling the jury, then decide whether to allow the jury to deliberate further or declare a mistrial. He also indicated that Juror Montgomery had a clear grasp of the question he had asked her.

THE COURT: I'm going to finish polling the jury, and we'll reach the question about what I'm going to do as to Count II as to whether or not I'm going to let the jury deliberate further on Count II or declare a mistrial.

* * *

* * *

THE COURT: I think the record shows that she's clear on what I'm asking.

When polling was completed, the trial judge stated he would not accept the verdict as the verdict of the jury, then inexplicably chose to question Juror Montgomery once more in open court.

[PROSECUTOR]: Judge, I'm simply asking that you try and clear it up with her. I mean, we can do it in chambers if you want so as to--

THE COURT: No, I don't think so. That's going to ask this woman to deliberate out in open court, outside the, outside the presence of the others, and I'm not going to do that. I'm not going to accept this verdict as the verdict of the jury. I'm either going to declare a mistrial or direct that they deliberate further.

* * *

* * *

THE COURT: I'll give her one more time. (Bench conference ended, and the following was asked out loud within the presence and hearing of the jury:)

THE COURT: Miss Montgomery, I'm not picking on you, but I want to clarify the record. Under Count I, the burglary count, is your verdict the verdict of guilty?

JUROR MONTGOMERY: Yes.

THE COURT: And what is--was your verdict of guilty or not guilty under Count II, the stealing count?

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