State v. Hernandez
| Decision Date | 11 December 2020 |
| Docket Number | No. SD 36382,SD 36382 |
| Citation | 613 S.W.3d 909 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gustavo Venzez HERNANDEZ, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Kevin L. Schriener of Clayton, MO.
Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., and Michel A. Trapasso, Asst. Atty. Gen., of Jefferson City, MO
Following a jury trial, Gustavo Hernandez (Defendant) appealed from his conviction of the class C felony of second-degree domestic assault. See § 565.073.1 Defendant contends the trial court plainly erred in three respects: (1) by failing to submit to the jury a proper verdict form to find Defendant guilty of second-degree domestic assault; (2) by failing to accept the jury's verdict that Defendant was not guilty of second-degree domestic assault; and (3) by failing to sustain Defendant's objection to the State asking a detective whether Defendant "should know where [his] brother is" because "the question improperly shifted the burden of proof to [Defendant] to provide his brother's testimony in his own prosecution." Finding no merit in any of these points, we affirm.
Defendant was originally charged by amended information with the class A felony of first-degree domestic assault. The charge stemmed from events occurring in January 2016. The information alleged that Defendant knowingly caused serious physical injury to his girlfriend, T.L.M. (Victim), by stabbing her. Victim was stabbed in the eye, cheek, neck, and breast.
The case was tried to a jury in August 2018. In addition to submitting first-degree domestic assault, the State requested a lesser-included instruction on second-degree domestic assault. After Defendant was found guilty of the lesser-included offense, he was sentenced to seven years’ imprisonment. This appeal followed. Additional facts will be included below as we address Defendant's three points on appeal.
Defendant recognizes that none of his points were preserved and requests plain error review pursuant to Rule 30.20. "[A]ll errors – whether statutory, constitutional, structural, or based in some other source – are subject to the same treatment under this Court's plain error framework." State v. Brandolese , 601 S.W.3d 519, 529 (Mo. banc 2020) ; see Rule 30.20. The threshold issue in plain error review is whether the trial court's error was facially "evident, obvious, and clear." State v. Wood , 580 S.W.3d 566, 579 (Mo. banc 2019) (citation omitted). If there was evident error, only then will this Court consider whether that error "resulted in a manifest injustice or miscarriage of justice." Id . To obtain a new trial on direct appeal based on a claim of plain error, the defendant must show that the error was "outcome determinative[.]" State v. Baxter , 204 S.W.3d 650, 652 (Mo. banc 2006) ; Wood , 580 S.W.3d at 579. An appellate court should not engage in plain error review pursuant to Rule 30.20, unless the defendant meets his or her burden of establishing facially substantial grounds for believing that the alleged error resulted in a manifest injustice or miscarriage of justice. Brandolese , 601 S.W.3d at 525-26 ; State v. Pulliam , 606 S.W.3d 243, 245 (Mo. App. 2020).
Defendant's first two points contend the trial court plainly erred in failing to: "submit to the jury the proper verdict form" to find Defendant guilty of second-degree domestic assault (Point 1); and "accept the jury's verdict" that Defendant was not guilty of second-degree domestic assault (Point 2). The following facts are relevant to these points.
At the instruction conference, the State submitted the lesser-included instruction on second-degree domestic assault, and defense counsel did not object. The trial court informed the parties it was going to need a different verdict form that would allow the jury to return a verdict of not guilty of both first and second-degree domestic assault. The trial court explained it needed a standard verdict form that says "we, the jury, find the defendant not guilty." The court further explained: "Because we have a lesser included submission ... you can only return one verdict, so we have to have just a generic not guilty for the charge." The trial court then drafted a general not-guilty verdict form. Neither party objected to the use of this verdict form, which stated:
VERDICT FORM
We, the jury, find [Defendant] not guilty.
This verdict form was provided to the jury for use in its deliberations.
In addition, the trial court provided a verdict form for finding Defendant guilty of first-degree domestic assault, which stated:
This verdict form was provided to the jury.
Finally, the trial court drafted a correct verdict form for finding Defendant guilty of domestic assault in the second degree, but that verdict form was inadvertently not provided to the jury. Instead, the trial court mistakenly provided the jury with a verdict form to find Defendant not guilty of that offense. It stated:
This was the only verdict form signed by the jury.
When the jury returned its decision, the trial court realized there was a "problem as to the verdict forms." At a bench conference with the prosecutor and defense counsel, the court stated, "I don't know what the verdict of the jury is." The court explained that, instead of "two guiltys" of either first or second-degree domestic assault, and "one not guilty" of both, the court submitted the opposite (only one guilty and two not guiltys):
Back in open court with the jury, the court spoke to the jury foreperson (Foreperson). The court explained its error in giving the jury the verdict form of "not guilty" of second-degree domestic assault because the court already gave "a not guilty form for both charges." The trial court told Foreperson:
I realize that I made an error, I submitted to you three verdict forms. One says we, the jury, find [Defendant] not guilty. That was a correct form. Then I should have submitted two verdict forms to allow you to find him guilty of either domestic assault in the first degree or guilty of domestic assault in the second degree. The verdict form I incorrectly submitted to you that you signed is we, the jury find [Defendant] not guilty of domestic assault in the second degree. That is the verdict form signed by [Foreperson]. I can tell you that I should not have provided you with that copy because I already gave you a not guilty form for both charges.
The trial court asked Foreperson what the jury's verdict was as to first-degree domestic assault, and he stated "not guilty." The other jurors nodded in agreement when the trial court inquired whether that was a unanimous verdict. The trial court next inquired what the jury's verdict was as to second-degree domestic assault, and Foreperson stated the verdict was "guilty." The other jurors all said "yes" when the trial court inquired whether that was a unanimous verdict.
After inquiring of Foreperson what the jury's verdict was, the trial court called the prosecutor and defense counsel to the bench and asked how they would like to proceed. Both stated they were "comfortable" with the court further inquiring of Foreperson, and polling the jurors as to their verdict, on the record. Back in open court, the trial court inquired of Foreperson and polled each juror as to their decision. Each juror informed the court that the jury had found Defendant not guilty of the original charge of domestic assault in the first degree, but guilty of the lesser-included offense of domestic assault in the second degree. Following this inquiry, the trial court concluded that the "true verdict" of the jury was "guilty of domestic assault in the second degree, as submitted in Instruction Number 6." The court pronounced that it "accepts the guilty verdict of the jury as to that charge." When the court acknowledged its mistake, defense counsel informed the court that she was "satisfied that the court cured any potential defect relative to that matter."2
Point 1 contends the trial court plainly erred in failing to submit the proper verdict form to find Defendant guilty of second-degree domestic assault, and in submitting to the jury the verdict form to find him not guilty of second-degree domestic assault. According to Defendant, this error "resulted in the trial court not accepting the jury's verdict finding [Defendant] not guilty of second-degree domestic assault resulting in a manifest...
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