State v. Hyzer, 14472

• Decision Date: 06 April 1987
• Docket Number: No. 14472,14472
• Citation: 729 S.W.2d 576
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald F. HYZER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 576

729 S.W.2d 576

STATE of Missouri, Plaintiff-Respondent, v. Donald F. HYZER, Defendant-Appellant.

No. 14472.

Missouri Court of Appeals,

Southern District,

Division Two.

April 6, 1987.

Motion for Rehearing and/or Transfer Denied

April 24, 1987.

Application to Transfer Denied

June 16, 1987.

Holly G. Simons, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

A jury has found defendant Donald F. Hyzer guilty of the sale of marihuana in violation of § 195.020, RSMo Supp.1984. His punishment has been assessed at imprisonment for a term of 5 years. Defendant appeals. We reverse and remand.

On August 11, 1984, defendant was working as a bartender in a Joplin bar. After the defendant had finished his shift, one Mike Kime, a volunteer "undercover" agent for the Joplin Police Department, arranged to purchase marihuana from the defendant. The defendant offered to sell Kime one-fourth ounce of marihuana for $30. Kime told the defendant he would have to obtain funds. Kime then left the bar and contacted Joplin detective James Dacy.

Dacy met Kime at a parking lot, gave him $30, and "checked to make sure the wire ¹ was working." Dacy also searched Kime to determine that Kime had no drugs on his person. Dacy was parked some distance from the place where the purchase was made, and could hear, but could not see, the transaction taking place. Kime and the defendant went outside the bar to the defendant's automobile. Defendant then sold Kime the marihuana, packaged in a "sandwich baggie, a cellophane wrapper type." Kime marked the container with his initials. He identified the cellophane bag--introduced as State's Exhibit 2--at the trial. There was evidence that the bag sold to Kime by the defendant contained 5 1/2 grams of plant material. A chemist with considerable experience identified the material in the cellophane bag as marihuana.

In this court, the defendant has briefed four assignments of error. One of the points raised is that the trial court erred in denying defendant's motion to quash the jury panel because the jury-selection procedures followed were not in compliance with the controlling statutes, §§ 495.040-495.100, RSMo 1978. Identical issues were raised in State v. Stephens, 699 S.W.2d 106 (Mo.App.1985), and ruled against the defendant in that case, which was also tried in Jasper County. The point has no more merit in this case than it had in Stephens.

A further point advanced is that the trial court erred in giving and reading MAI-Cr.2d 2.20, "because that instruction violated [defendant's] rights to due process in that the instruction defines proof beyond a reasonable doubt as proof that leaves jurors 'firmly convinced,' thereby diminishing the meaning of proof beyond a reasonable doubt."

This court has also recently addressed the contention that the definition of "reasonable doubt" contained in MAI-Cr.2d 2.20 is constitutionally infirm. State v. Pendergrass, 726 S.W.2d 831 (Mo.App.1987). In general, the court reached the conclusion that there is neither any standard definition of the phrase "reasonable doubt" which must be used nor any particular ritual which must be followed in explaining the order of doubt which is "reasonable." See: Friedman v. United States, 381 F.2d 155, 160 (8th Cir.1967); 2 C. Wright, Federal Practice and Procedure, Criminal 2d § 500 (1982). We reaffirm what was said in Pendergrass.

A further point made by the defendant is that the trial court erred in giving MAI-Cr.2d 1.10 "after an hour and fifteen minutes of deliberation in that the jury foreman had expressed the firm conviction that no verdict could be reached and 1.10 unduly pressured the jurors who were in favor of acquittal to go along with the majority because through [the instruction] the judge indicated his desire that a verdict be reached."

This cause was submitted to the jury at 2:33 p.m. At 3:40, the jury sent a note to the court reading: " 'We have a hung jury. What do we do?' " The court asked for suggestions by counsel. The defendant's attorney suggested the note be ignored. Counsel for the State suggested that ignoring the note would probably prompt the jury to "sit and wait." Both counsel suggested the court might give the jury the "hammer" instruction--MAI-Cr.2d 1.10.

The jury was called before the court. Directing its questions to the foreman, the court inquired:

"THE COURT: So, now I'll ask you, has the jury arrived at a verdict?

MR. SCHULTE: No, sir.

THE COURT: How does the jury stand numerically?

MR. SCHULTE: Ten and two.

THE COURT: Mr. Schulte, do you feel that if the jury was allowed more time to deliberate that they could arrive at a verdict?

* * *

* * *

MR. SCHULTE: No, sir.

THE COURT: Do other members of the jury feel that if the jury was allowed more time to deliberate they could arrive at a verdict? You can shake your heads or give me some indication. I don't see much indication of any type. All right. I'm going to read you another instruction. Instruction Number 11."

The court thereupon read MAI-Cr.2d 1.10 to the jury and each member of the jury was given a copy of the instruction. As soon as their deliberation had been resumed, the jury asked to listen to the tape made by Dacy--from Kime's transmitter--while the marihuana was being sold, or to listen to a transcript of the tape. This request was denied by the trial court. At 4:46 the jury returned with its verdict.

Whether MAI-Cr.2d 1.10 should be read to the jury is a matter within the sound discretion of the trial court. State v. Anderson, 698 S.W.2d 849, 853 (Mo. banc 1985). As far as the request to hear the tape is concerned, there...