State v. Hicks, SD 34005

• Decision Date: 22 November 2016
• Docket Number: No. SD 34005,SD 34005
• Citation: 501 S.W.3d 914
• Parties: State of Missouri, Plaintiff–Respondent, v. Dustin M. Hicks, Defendant–Appellant.
• Court: Missouri Court of Appeals

501 S.W.3d 914

State of Missouri, Plaintiff–Respondent,

v.Dustin M. Hicks, Defendant–Appellant.

No. SD 34005

Missouri Court of Appeals, Southern District, Division Two.

Filed: November 22, 2016

Attorney for Appellant—Samuel Buffaloe of Columbia, MO

Attorney for Respondent—Chris Koster(Attorney General), Gregory L. Barnes of Jefferson City, MO

Nancy Steffen Rahmeyer, J.

A jury found Dustin M. Hicks("Defendant") guilty of three crimes: attempted rape in the first degree, assault in the second degree, and armed criminal action.All three crimes arose out of Defendant's conduct during an arranged meeting with a prostitute.The trial court sentenced Defendant as a prior and persistent offender to imprisonment for ten years for attempted rape, twelve years for assault and three years for armed criminal action with the ten and twelve-year sentences to run consecutive to one another and the three-year sentence to run concurrently with the other sentences.Defendant appeals raising two points of asserted trial court error: (1)the trial court abused its discretion in denying Defendant's motion for mistrial based on the jury's knowledge that the jury would have been permitted to ask witnesses questions but for defense counsel's objection to that procedure, and (2)the trial court plainly erred in not declaring a mistrial sua sponte when a question from the jury indicated the jury's deliberations had become contentious following a poll of the jury in which a juror stated guilty verdicts returned by the jury were not the juror's verdicts.We reject Defendant's points, and affirm the trial court's judgment.

Standard of Review

"A mistrial is a drastic remedy to be exercised only in those extraordinary circumstances in which the prejudice to the defendant cannot otherwise be removed."State v. Harris , 477 S.W.3d 131, 138(Mo.App.E.D.2015).We review the refusal to grant a mistrial for abuse of discretion because the trial court, unlike a reviewing court, "has observed the complained of incident and is in a better position ... to determine what prejudicial effect, if any, the alleged error had on the jury."State v. McClendon , 477 S.W.3d 206, 215(Mo.App.W.D.2015)."An abuse of discretion is found when the trial court's ruling is clearly against the logic of the circumstances then before it and when the ruling is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration."Id .

State v. Roberson , No. WD 78191, 501 S.W.3d 465, 469–71, 2016 WL 3960989, at *4(Mo.App. W.D.July 19, 2016)."[P]lain errors affecting substantial rights may be considered in the discretion of the [appellate] court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."Rule 30.20.¹

Analysis

Point I—Denial of Request for Mistrial Based on Trial Court's Conduct Relating to Juror Questions

In his first point, Defendant argues that "[t]he trial court abused its discretion in denying [Defendant's]motion for mistrial" because (1) the jury "would hold it against"Defendant that the jury would not be permitted to ask questions during the trial because defense counsel objected to questions by jurors, and (2)the trial court's "procedure ..., as well as ... comments ... before and after the request for the mistrial, were of such a nature as would reasonably tend to prejudice the minds of the jury against"Defendant.

Immediately after the jury was sworn at Defendant's trial, the following occurred:

[THE COURT:] Now, I'm going to read the instructions, but part of the second instruction is not in your notebooks.The first one is not in there at all.What we call InstructionNo. 1 is in there except for the last part.And here's why it's not in there yet.I've been doing this for about 18 years.Right after I went on the bench, I went to the National Judicial College for three weeks and learned about judging and what other states do.I did not know in all my years of practice, because I hadn't paid attention to other states, that about half the states in the United States do things like let you take notes, let you ask questions of the witnesses, which was a novel concept for Missouri.So when I came back, I started letting jurors in civil cases ask questions.And then I was on the civil jury study committee that actually formulated the instruction for them.I've been hesitant to ever do it in criminal cases because people tell me it might get reversed.I don't think we are, but I've decided it's time to let you guys ask questions, and there's an instruction in here that tells you how you get to do that.

[DEFENSE COUNSEL]: Judge, I think we need to approach.

THE COURT: No, you don't.I'll read the instruction; then you can approach.You should have brought this up before they came up.

[DEFENSE COUNSEL]: It wasn't brought to my attention that this was going to happen today, Judge.

THE COURT: Okay.We'll be back.

At that point, counsel approached the bench out of the hearing of the jury.The trial court explained to defense counsel that the trial court believed it had given defense counsel's office notice of its intention to permit jurors to ask questions in criminal cases, and also recently had mentioned its intention in the courtroom.Defense counsel told the trial court that defense counsel had not received notice from her office of the trial court's intention to permit juror questions, and did not hear the trial court announce its intention in the courtroom.The trial court then returned the trial to the hearing of the jury, and took a short recess.

Following the recess and before the jury returned to the courtroom, defense counsel requested a mistrial because the jury "will hold it against us that we're not letting any questions be asked in this case."Following a discussion between the trial court and defense counsel with respect to the trial court's intended procedure for juror questions in future criminal cases, the trial court stated that it would not permit juror questions in Defendant's case.The following exchange then occurred:

THE COURT: Anything else before I bring the jury?Oh, I'm overruling your motion for mistrial.

[DEFENSE COUNSEL]: But you are granting my request for a clarifying instruction?

THE COURT: I'm going to tell them.

[DEFENSE COUNSEL]: Okay.

When the jury returned to the courtroom, the trial court instructed the jury: "Please be seated.Okay.You are not going to be allowed to ask questions of witnesses.The next trial we will, but not this one."Defense counsel did not object to the trial court's instruction to the jury.

The trial court then read to the jury initial jury instructions for the trial.These instructions included the following statements:

It is the court's duty to enforce [established rules for those who participate in a jury trial] and to instruct you upon the law applicable to the case.It is your duty to follow the law as the court gives it to you.

However, no statement, ruling, or remark that I may make during the trial is intended to indicate my opinion of what the facts are.It is your duty to determine the facts and to determine them only from the evidence and the reasonable inferences to be drawn from the evidence.

....

From time to time the attorneys may make objections.They have a right to do so and are only doing their duty as they see it.You should draw no inference from the fact that an objection has been made.

As described in State v. Jackson , 836 S.W.2d 1, 6–7(Mo.App. E.D.1992), long settled law in Missouri is that:

The standard of review for examining the conduct of a trial judge is whether the trial court's conduct is such as to prejudice the minds of the jury against the defendant thereby depriving the defendant of a fair and impartial trial.State v. Koonce , 731 S.W.2d 431, 441(Mo.App.E.D.1987), quotingState v. Puckett , 611 S.W.2d 242, 244(Mo.App.E.D.1980).Whether there was prejudice depends on the context and words in each case.State v. Koonce , 731 S.W.2d at 441.The trial court must maintain a position of absolute impartiality, avoid any conduct which might be construed as indicating a belief on the part of the judge as to the guilt of the defendant.Id .Moreover, a judge must maintain a neutral attitude and avoid any demonstrated hostility which might impair the appearance of impartiality.State v. Clay , 763 S.W.2d 265, 268(Mo.App.E.D.1988).

This does not mean, however, that the trial judge may not correct counsel, when necessary, as long as it is not done in a contemptuous manner, or that he may not summarize evidence in explaining a ruling, as long as it is not a statement of facts as a matter of law.State v. Thomas , 791 S.W.2d [861,] 863[ (Mo.App.E.D.1990) ].Moreover, a trial judge may question witnesses in order to clarify testimony.State v. Clay , 763 S.W.2d at 268.The judge, in so doing, must not indicate a belief in either the guilt or innocence of the accused.State v. Koonce , 731 S.W.2d at 441, quotingState v. Montgomery , 363 Mo. 459, 251 S.W.2d 654(1952).Nor may the judge let such belief be reflected or even conjectured by the jury in his treatment of either counsel.State v. Koonce , 731 S.W.2d at 441.The factors used to determine the propriety of any comment include whether the trial judge volunteered the comment, whether the comment was made in response to an objection as part of the court's ruling, whether the comment was made in the jury's presence and whether the jury could have construed the comment to prejudice the defendant.Id .

There is no error as long as the trial judge does not express an opinion as to the nature, content or truthfulness of evidence.State v. Thomas , 791 S.W.2d at 863.Finally, the propriety of a trial judge's comments depend[s] largely upon his tone of voice, facial expressions and other similar factors which give content to the trial episodes and the rulings thereon.Id .Since those factors are not reflected in the record on appeal, we must largely defer to the

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