State v. Cooper

• Court: Missouri Court of Appeals
• Writing for the Court: LOWENSTEIN
• Citation: State v. Cooper, 648 S.W.2d 137 (Mo. App. 1983)
• Decision Date: 11 January 1983
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Randy W. COOPER, Appellant. 32982.

Page 137

648 S.W.2d 137

STATE of Missouri, Respondent, v. Randy W. COOPER, Appellant.

No. WD 32982.

Missouri Court of Appeals Western District.

Jan. 11, 1983.

As Modified March 1, 1983.

Vance C. Preman, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

Defendant was jury convicted of leaving the scene of an accident, § 577.060, RSMO 1978¹, resulting in a sentence by the court of two years, and under § 565.005 of manslaughter, sentence of five years, the sentences to run consecutively. Defendant does not question sufficiency of the evidence which showed him driving a motorcycle in a careless manner and at a high rate of speed in Swope Park, Kansas City, Missouri striking and killing a pedestrian. The defendant stopped to help the victim--then left the scene to allegedly go for help, but he never returned.

Defendant alleges two points on appeal, ineffective assistance of counsel at trial and separation of the jury following submission.

Defendant's point on ineffective assistance of counsel is denied. His bare allegations that trial counsel 1) did not challenge any of the jurors for cause; 2) only asked six questions of two persons on voir dire; 3) made no opening statement, and 4) that he presented no evidence nor offered instructions, all without any explanation and without any showing of prejudice to the defendant, preserve nothing for review. In any event, such allegations are not ordinarily reviewable on direct appeal and are best left to a Rule 27.26 proceeding where the issue can be more fully explored. State v. Mitchell, 620 S.W.2d 347, 348 (Mo. banc 1981). The record here on appeal is not sufficient for any meaningful review of the adequate assistance of counsel issue. State v. Hobbs, 612 S.W.2d 387, 388 (Mo.App.1981).

With regard to the issue of separation, § 547.020(2) provides a court may grant a new trial "[w]hen the jury has been separated without leave of the court, after retiring to deliberate on their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case." Sections 546.230 ² and 546.240 ³ detail the situations when a jury separation is allowed.

Following the submission of the case the court announced to the attorneys it had received a note from the jury stating that they were aware of a unanimous vote being needed for a verdict but wanting to know whether a majority vote for the punishment was allowable. The judge then told the attorneys:

"However, there is something that has since come up within the last few minutes and that is that one of the jurors, Cynthia Perkins, came down the stairway from the jury room and indicated that she wanted to leave. But she was agreeable, according to the bailiff, to talk to me privately.

So she did come in and I talked to her privately and she did make reference to the question that the jury has sent down and I said I did propose to answer that and was there going to be any problem with her staying. And she said, well, she didn't want to go back there.

So I said, 'Well, I am going to have the jury called down,' and I wanted to talk to the jury as a group and I would be answering the question and had in mind to give them some information. So the gist of what she said was that, well, there wasn't any point in her staying around if it had to be unanimous in agreeing on a verdict.

I didn't specifically mention anything about giving her Instruction 4.50 whereby the punishment could be left up to the Court. But the Court does have in mind to give that instruction. Hopefully, if the Court does give that instruction to the jury, that she would go back and continue the deliberations with the jury."

The court advised the jury that pursuant to Instruction 4.50 the court could assess punishment. The jury then returned a verdict of guilty after which they were all polled. The court then apprised attorneys as follows:

THE COURT: I would like to state with reference to your motion, that since we made the record the last time when the jury was excused after giving them additional instruction, that Miss Perkins did not wish to go upstairs to the jury room. I talked with her privately in my chambers as to --briefly as to why she didn't want to go up there and her only point was that, well, she wasn't going to be changing her mind about anything.

And so I urged her to just participate in on the --in on the discussion to see if any type of verdict could be arrived at and she did then consent to meet with them here in the jury box in the courtroom so everyone else was excluded from the courtroom and the rest of the jury was brought down and so the twelve jurors did have their remaining discussion together in private here in the courtroom. [Emphasis added.]

The defendant's attorney moved for a mistrial because of juror separation, which was denied. His motion for new trial, which included the separation of juror Perkins was overruled, apparently without a hearing, with the court noting that "Although juror Cynthia Perkins was for a few minutes separated from the rest of the jurors during the period of deliberation, she was at all times during such period under the surveillance of the bailiff and the Judge and such separation was in no way prejudicial to the rights of the defendant."

It is clear from the above excerpts from the transcript that during the course of juror Perkins separation from the jury she had occasion to communicate with both the bailiff and Judge Smith privately and the judge urged her to rejoin her fellow jurors to see if they could reach a verdict. Thus in the instant case not only is there an issue of separation but there is also a question as to the propriety of the court's private communication with the juror.

Missouri courts have long recognized the purpose of statutes governing juror separation is to prevent any opportunity for misconduct by the juror or any suspicions of improper influences upon them, see e.g., State v. Daegele, 302 S.W.2d 20, 25 (Mo.1957); State v. Shawley, 334 Mo. 352, 380, 67 S.W.2d 74, 88 (1933); State v. Asbury, 327 Mo. 180, 182, 36 S.W.2d 919, 920 (1931). Missouri case law recognizes that if juror separation or misconduct occur during the progress of the trial, but before submission the verdict will be set aside as per § 547.020 "unless the state affirmatively shows that the jurors were not subject to improper influences." State v. Edmondson, 461 S.W.2d 713, 723 (Mo.1971).

"But if after the case has been submitted to the jury for its deliberation, and before a verdict has been reached, there is an opportunity that improper influence can be used on any juror that alone will require a new trial even though it be shown that improper influence was not exercised." Edmondson, supra, at 723-24 (emphasis added). ⁴

Thus, no matter what may have actually been said to the juror, the mere opportunity for improper influence after the matter is submitted to the jury requires a new trial.

In State v. Jones, 363 Mo. 998, 1007, 255 S.W.2d 801, 806 (Mo.1953) the separation and communication occurred after the close of evidence while instructions were being prepared. Jones, involved a juror talking to the sheriff in the hall. The issue was preserved for defendant's motion for new trial, where, as here, no evidentiary hearing was held on the allegation of misconduct or improper communication. In quoting from Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921 (1892), the supreme court said in Jones as well as in State v. Quinn, 405 S.W.2d 895, 896 (Mo.1966) "private communication, possibly prejudicial, between jurors and third persons or witnesses, or the officer in charge, are absolutely forbidden and invalidate the verdict unless their harmlessness be made to appear." Jones stands for the proposition that the state must affirmatively show that jurors were not subjected to improper influence.

The state says that the facts here do not amount to a separation because the juror was at all times under the surveillance of the bailiff and the judge thus avoiding the triggering of the rationale of Jones. According to the state, if no separation occurs or the facts do not arise to the level of a meaningful separation there is case authority that the defendant need not be granted a new trial. ⁵ Also, the state relying on State v. Shawley, 334 Mo. 352, 67 S.W.2d 74 (1933) asserts that defendant proved no prejudice because of the actions of juror Perkins, thus negating the need for a new trial under § 547.020(2). Shawley directly refutes the allegation of prejudice being needed after the jury retires. The statutes in force, during Shawley were the same as in this case, the court declaring a separation without leave of court after deliberation made mandatory the granting of a new trial, "regardless of whether actual prejudice to the defendant be shown." Id. 67 S.W.2d at 88.

With nothing more in the record than exists here, this court cannot say there was no opportunity for improper influence. ⁶ The comments of the judge make a prima facie case of juror separation and of a communication by an officer (bailiff) to a juror without order of the court (§ 546.240). Without an evidentiary hearing as to whether the opportunity for improper...