State v. Hayes, 59735
| Decision Date | 13 March 1978 |
| Docket Number | No. 59735,59735 |
| Citation | 563 S.W.2d 11 |
| Parties | STATE of Missouri, Respondent, v. Larry Allen HAYES, Appellant. |
| Court | Missouri Supreme Court |
Jerry L. Wilkerson, Salem, for appellant.
John D. Ashcroft, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, for respondent.
A jury convicted appellant of possessing barbiturates (a controlled substance) and the court sentenced him to a seven year prison term. After appeal, we sustained an application to transfer from the Court of Appeals and now consider the same as on "original appeal." Rule 83.09.
We have decided that the issues involved call for rejection of the attack on appellant's brief. Mills v. Keasler, 395 S.W.2d 111(1) (Mo.1965).
There being no challenge to the sufficiency of the evidence, a brief outline thereof should suffice.
On October 20, 1973, appellant lived in West Plains and planned a trip to Moberly that he might visit some friends in the Medium Security Prison. He was accompanied by one Robert Watts and was operating an automobile borrowed from a girl friend. They stopped at the intersection of Highway 63 and Interstate 44 in Rolla to await Robert's brother and two others from Springfield that they might complete the trip together. After being parked at 2:15 A.M. for some fifteen minutes in the parking area for the Manor Inn Motel, two troopers of the highway patrol observed that the automobile had one old license and one new (the other new license being in the back seat). When asked to exhibit the vehicle's registration certificate, appellant opened the glove compartment and out fell a plastic bag containing a pill bottle with 195 capsules. Arrest and trial followed.
First, after deliberating for one hour and thirty minutes, the jury returned to the courtroom and the following proceedings were had:
THE COURT: Let the record show that at 3 o'clock the jury has been returned to the court room by the Deputy Sheriff and the Court has been handed a communication as follows: "We the jury cannot agree, 6 6, signed W. J. Vance, Foreman."
Mr. Foreman, the communique which I've read of course, cannot be accepted by this Court as a verdict. I'm going to send you back to the Jury room with the admonishment that you are to read all of the instructions which have been given to you and that you deliberate further and thereafter return one of three verdicts. We, the jury, find the defendant, Larry Allen Hayes not guilty or We, the jury, find the defendant, Larry Allen Hayes, guilty as charged and assess his punishment and there you have two alternatives in accordance with the verdict which I have previously referred to or return a verdict that you've agreed upon the guilt but cannot agree upon the punishment.
I admonish this jury to bring back one of those verdicts and will ask you to deliberate further and to notify the Deputy when you have further communication to this Court.
Mr. Sheriff, again take this jury to the jury room with the instructions. I'm going to ask that you deliberate further. It's the opinion of this Court that twelve other jurors could not be found in this county who could do this any better than you twelve and the State is entitled to a verdict in this case as is the defendant entitled to a verdict and I don't think that we should ask twelve other jurors deliberate this matter. I am of the opinion that you twelve can do as well as any other twelve. So I'm going to ask that you go back and deliberate further.
The record reflects that the jury was so instructed orally by the court.
On the date of trial, 18 July 1974, MAI-Cr No. 1.10, 1 (captioned: "Instructions After Extended Deliberation by the Jury") was the designated and approved so-called "hammer" instruction. Paragraph No. 2 of the Notes on Use thereunder dictates that: Non-compliance with the directions noted is obvious.
Rule 20.02(e) (captioned: "Violation of Rule Effect") provides: "Giving or failing to give an instruction or verdict form in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined."
The instruction as given constituted error and we think could have had a prejudicial effect on appellant's right to a fair trial. The giving of a hammer instruction in any case can be justified only if it points up (as MAI-Cr No. 1.10 does) that ". . . no juror should ever agree to a verdict that violates the instructions of the Court, nor find as a fact that which under the evidence and his conscience he believes to be untrue." Such a caution is the crux of the instruction and its absence tends to detract from the basic duty of a juror and the fundamental concept of a fair trial.
Second, the verdict directing instruction failed to require a finding by the jury that appellant "knowingly"...
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State v. Carson
...that vary by drug. Section 195.223.2 provides: conscious possession. See State v. Barber, 635 S.W.2d 342, 343 (Mo. banc 1982); State v. Hayes, 563 S.W.2d 11, 13 (Mo. banc 1978); State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975); State v. Burns, 457 S.W.2d 721, 725 A person commits the cri......
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State v. Scott
...where the trial court followed the Notes on Use and gave only the approved instruction, the risk of coercion was minimized. See State v. Hayes, 563 S.W.2d 11, 12 (Mo. banc 1978) (noting the importance of the cautionary language in the then-current approved instruction that “no juror should ......
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State v. Campbell
...this supposed hammer instruction, without the safeguards, is reversible error. In support of this contention, Appellant discusses State v. Hayes, 563 S.W.2d 11 (Mo. banc 1978). In Hayes, the Supreme Court found that the trial court committed reversible error when it instructed the jury that......
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State v. Burns, No. 54657
...duty of a juror and the fundamental concept of a fair trial." State v. Broadux, 618 S.W.2d 649, 652 (Mo. banc 1981) (quoting State v. Hayes, 563 S.W.2d 11, 12 (Mo. banc 1978)). In Hayes the court reversed a judgment because the trial court omitted this caveat from its instruction to the jur......