State v. Hunter

• Citation: 586 S.W.2d 345
• Decision Date: 11 September 1979
• Docket Number: No. 61207,61207
• Parties: STATE of Missouri, Respondent, v. Wilbert HUNTER, Appellant.
• Court: United States State Supreme Court of Missouri

Page 345

586 S.W.2d 345

STATE of Missouri, Respondent, v. Wilbert HUNTER, Appellant.

No. 61207.

Supreme Court of Missouri, En Banc.

Sept. 11, 1979.

Rehearing Denied Oct. 10, 1979.

Blair K. Drazic, Asst. Public Defender, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Charged as a second offender, ¹ appellant was tried to a jury and found guilty of stealing property of a value of $50 or more, § 560.156, RSMo 1969 and § 560.161, RSMo Cum.Supp.1975, and the court assessed punishment at five years imprisonment. On appeal, the Eastern District of the Court of Appeals affirmed in an opinion authored by Stephan, J.; and, although we agreed with the opinion as written and the result reached therein, transfer of the cause to this court was ordered for reasons which hereinafter become readily apparent.

The only contested factual issue before the jury was whether or not the property stolen had a value of less than $50 or $50 or more, I. e., the distinction between a misdemeanor and a felony under those portions of the "stealing" statutes relevant to this case. Note 4 of the "Notes on Use" to MAI-CR 7.70 provided that:

If the offense is submitted as a felony for the stealing of property of the value of at least $50 and if there is any doubt that the value exceeds that amount, the stealing of property of the value of less than $50 can be submitted as a misdemeanor and as a lesser included offense.

In compliance therewith, separate instructions ² were given with each containing the statutory range of permissible punishments. The jury obviously resolved that the property stolen had a value of at least $50 and found appellant guilty of a felony for which it set punishment at confinement for one year in the St. Louis Medium Security Institution. Thereafter, the trial court, acting under the Second Offender Act, assessed the five year sentence noted a result not unanticipated by the Committee on Criminal Pattern Instructions or this court as Note 3(d) to MAI-CR 2.04 specifically addresses a situation in which a defendant subject to the Second Offender Act may be found guilty of either a felony or misdemeanor and provides, in part, that:

The verdict directing instructions for the state will include all ranges and types of punishment permitted as to each defendant and each offense. If the jury convicts of any felony and assesses the punishment, Its assessment will be considered as surplusage or merely advisory, and the court will proceed to fix the punishment. If the jury convicts of the misdemeanor, its assessment of the punishment will stand.

(Emphasis added.)

Appellant contends that inclusion of the range of punishment in the felony instruction misled the jury to believe he would serve only the time it assessed; and, that such "deception" denied him the right to a trial by jury on the issue of guilt under the sixth and fourteenth amendments to the United States Constitution and Article I, §§ 18(a) and 22(a) of the Missouri Constitution.

The court of appeals, after first observing that the trial court had adhered strictly to the "clear" directive of Note 3(d) to MAI-CR 2.04, rejected appellant's argument by holding that:

In this case, the jury's assessment of punishment at one year confinement was, at best, "merely advisory," and no constitutional right of defendant was violated by the fact that the trial court determined the sentence as mandated by § 556.280. The constitutional right to trial by jury in a felony case does not extend to the issue of punishment. State v. Daugherty, 484 S.W.2d 236 (Mo.1972); State v. Morton, 338 S.W.2d 858 (Mo.1960); Payne v. Nash, 327 F.2d 197 (8th Cir. 1964). However, defendant argues further that the inclusion of the permissible range of punishment in the instruction which submitted the felony somehow misled the jury and prejudiced defendant's rights. We see no logic in this argument. On the contrary, it would seem far more likely to induce confusion in the minds of jurors to instruct them as to the permissible punishment range for the misdemeanor but fail to mention it in connection with the felony. Furthermore, the question of punishment is, under the terms of MAI-CR 7.70, addressed by the jury only after a determination of guilt is reached. We, therefore, fail to see how a jury's view of its role in deciding the former question could be said to hinder or bias its determination of the latter. See State v. Wade, (306 Mo. 457,) 268 S.W. 52, 56 (1924), where it was held that, because punishment under the statute in question was at the discretion of the trial court, "It made no difference what the jury was told concerning the range of punishment or what punishment it fixed in its verdict finding defendant guilty." See also State v. Volz, 269 Mo. 194, 190 S.W. 307 (1916).

Because the appellant, by a supplemental brief filed in this court, has focused his arguments now more on a true "concept of jury nullification," we consider the same further, even though he concedes that he has no constitutional right to have a jury assess his punishment. He claims that the jury in this case likely believed that it did not need to "stand up to the court" with a verdict contrary to the law since it could control the harshness of the sentence within the range set forth in the instruction. The extension of appellant's argument is that the jury might have acquitted him on the felony count had the members known the judge could increase the sentence.

Jury nullification is at best a collateral consideration in this case. It is enough to say that while courts recognize that jury nullification may occur from time to time, the practice is not encouraged in either Missouri or federal courts. This state uses pattern instructions in criminal and civil cases. No instruction on jury nullification exists, and no case can be found in Missouri where such an instruction was sanctioned. The issue was settled by the United States Supreme Court in Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), which affirmed the right and duty of the judge to instruct on the law. Moreover, only two states still allow the jury to be told that it can disregard the law as given it by the court. ³ See also United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113 (D.C.Cir.1972); United States v. Spock, 416 F.2d 165 (1st Cir. 1969); and United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), Cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). ⁴ Because no constitutional basis exists for nullification, none can be found in appellant's claim here that he was denied his right to trial by jury.

That the jury could have been misled by the felony instruction as to its power to assess punishment is difficult to deny. The harmful effect of the instruction, however, is subject to greater debate. Under the facts of this case, no prejudice to appellant is found. The question of guilt was to be determined first, under the terms of MAI-CR 7.70. Punishment was to be determined only if appellant were found guilty beyond a reasonable doubt. While it may be within reason that a jury might consider the punishment concurrently with guilt, such reasoning does not compel the conclusion that a jury would decide to convict on a felony submission, not on the basis of guilt, but on the basis that it could control the assessment of punishment. The jury in the instant case not only had the options of finding appellant guilty or not guilty of two separate crimes, it also had a variety of punishments from which to choose. Had the jury found appellant guilty of the misdemeanor, it could have assessed a punishment identical to the one it assessed for the felony charge. However, a jury is presumed to have followed the court's instructions, State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65 (1938), and in this case it would appear that the jury did just that. There is no reason to believe other than that the jury was convinced beyond a reasonable doubt that appellant was guilty of stealing property of a value of at least $50. This belief is bolstered by the fact that the jury had the other options which it is presumed to have eliminated in arriving at the verdict. Having reached this verdict, punishment was assessed. This court cannot find prejudice to this appellant on the basis of speculation, as appellant has urged, as to the jury's inclination toward nullification. To do so would have us believe that the jury not only ignored the instructions but focused on punishment rather than guilt.

In affirming this conviction, it is appropriate to note that an analogous sentencing procedure has been established under the new criminal code, §§ 558.016 and 558.021, RSMo 1978, and the new criminal instructions, tentatively approved by this court on January 1, 1979. See E. g., MAI-CR2d 24.02.1 Stealing: Without Consent One Transaction. Under this new scheme, as before, the court decides the duration of the sentence. The jury's role is to set the maximum sentence within the range statutorily permitted. The only circumstances in which a judge can increase the jury's sentence are when the term fixed by the jury is less than the lowest authorized term and when the defendant is found to be a persistent or dangerous offender.

Although no prejudice to appellant occurred in this case and no prejudice is easily foreseeable from the giving of this type of instruction in other cases, amendment of the new instructions may be in order to avoid any confusion. The sole argument, suggested by the parties to justify the current wording of instructions which tell a jury that it assesses the punishment when it doesn't, is the idea that the absence thereof would be distractive. Perhaps the jury should be informed that its role in sentencing, under some circumstances, is merely advisory. The Committee on Pattern Criminal Charges and...