State v. Mason

• Decision Date: 09 October 1979
• Docket Number: No. 39522,39522
• Citation: State v. Mason, 588 S.W.2d 731 (Mo. App. 1979)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Floyd Ray MASON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 731

588 S.W.2d 731

STATE of Missouri, Plaintiff-Respondent, v.Floyd Ray MASON, Defendant-Appellant.

No. 39522.

Missouri Court of Appeals, Eastern District, Division Two.

Oct. 9, 1979.

Forriss D. Elliott, M. Barry Forman, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

STEPHAN, Presiding Judge.

DefendantFloyd Ray Mason appeals from a conviction of second degree burglary and sentence of two years in prison.He presents seven points on appeal.Finding one to have merit, we reverse and remand and discuss such others as are likely to arise on retrial.

On March 2, 1977, Paul Pugh left his combination residence-furniture store at 4301 North Twentieth Street in the City of St. Louis about 7:30 p. m. and returned about 10:00 p. m. to discover it had been burglarized.A window in the door to the residence on the second floor had been broken and items of value such as tape decks, stereos and television sets had been removed from both the residence and Mr. Pugh's store on the first floor.The burglary was witnessed by three young brothers Floyd, James and Isaac Chaney.Floyd, age 12 at the time of trial, and James, age 10, testified.The state elected not to attempt to qualify Isaac, age 8.The testimony of Floyd and James, while not identical on all points, was in substantial agreement: At about 9:00 p. m. on the night in question they were walking from their home the short distance to their grandmother's home, a route that took them past the Pugh residence and store.They heard glass breaking.Investigating, they ran to the rear of the building where they saw a tall, thin black man breaking the window of the second floor door.He entered the building and then opened the front door of the store for a short, fat black man, whom they identified as the defendant.The boys watched the two men turn on the inside lights and make several trips carrying items such as those later reported missing by Mr. Pugh to a yellow pickup truck which had on it splotches of brown paint and racks made of pipe.The men then departed in the truck.

Defendant, a building contractor, had been doing some work at a residence near the site of the burglary.During the evening following the crime, Mr. Pugh saw the defendant and another man near a truck such as that described by the boys parked in an alley behind the Pugh residence.He approached them to inquire whether they knew anything of the burglary.Before he could engage them in conversation, the defendant seized his companion by the arm and said, "Don't talk to him; he knows what is going on."Apparently, there then ensued an incident of flourishing a deadly weapon (all discussion of which occurred out of the hearing of the jury), for which defendant and the companion were subsequently arrested on March 5, 1977, and taken into custody.That evening Mr. and Mrs. Pugh identified defendant and the other man as the persons involved in the flourishing incident; the three Chaney boys also viewed the eight-man lineup, and Floyd and James identified defendant as a participant in the burglary.At the conclusion of the lineup, defendant and the second man were advised that they were also under arrest for burglary and advised of their rights.

The defendant presented a defense of alibi.He claimed that he was drinking at one of two bars on the night in question.The owner of one of those bars, Charles Rieves, testified that he remembered the defendant's presence in his bar from 8:00 p. m. to 1:30 a. m. on the night of the burglary; a date which he recalled with certainty because on March 2he sponsored his first "happy hour."Rieves testified that defendant was a loyal patron and close friend and that he knew defendant was present at his bar on March 2 because the defendant was about the only person to whom he talked while tending bar.

Lorine Johnson gave the only other testimony in defendant's case.Lorine, the sixteen-year-old daughter of a neighbor of the Pughs, testified that the defendant had performed contracting work for her mother on the day of the burglary as well as for several days thereafter.Lorine spent the evening of the burglary a few doors down from the Pughs' on her aunt's porch but she saw neither the defendant nor his truck.She stated, however, that she had seen a man named Lawrence who resembled the defendant in the neighborhood around the day of the burglary.

We advert first to defendant's meritorious assignment of error to the effect that the verdict was the product of undue coercion by the trial court.After the jury had deliberated for six hours, the trial court recalled the jury to ask how they stood numerically without inquiring "how many votes for this proposition, or how many for that."After the foreman informed the court that the count was eleven to one, the court read MAI-CR 1.10, the so-called "hammer instruction."One hour and fifteen minutes later, the court again summoned the jury and inquired as to their progress.In response to a question from the court, the foreman stated that the vote was still eleven to one.The following interchange between the court and the jury occurred:

"THE COURT: As the foreman of the jury, do you feel that if we were to, say go another fifteen minutes, that a verdict could be reached?Do you think that reasonable, or does it seem unlikely?

THE FOREMAN: It is possible.

THE COURT: Do you think it is probable?Consider it's been seven hours and fifteen minutes now since the jury got this case.Do you think

THE FOREMAN: I think if we talk over perhaps one more time, after reading Instruction 11 ¹ and you feel that a verdict should come out.

THE COURT: Do you think if you had another fifteen minutes you might reach a verdict?Is that correct?

THE FOREMAN: It is possible.

THE COURT: All right.Sheriff, would you take the jury back upstairs, and we will try it another fifteen minutes."

Fifteen minutes later the jury returned with a verdict of guilty and assessed the minimum punishment of two years.Although defendant did not object to the colloquy between the trial court and the foreman at the time it occurred, the point was presented in the motion for new trial and briefed on appeal.We review it under the plain error doctrine, Rule 27.20(c), because the extra-MAI statements "go to the heart of the judge-jury relationship as it affects the fundamental right to a fair and impartial trial."Burroughs v. United States, 365 F.2d 431, 434(6)(10th Cir.1966).

While it is clearly proper to give MAI-CR 1.10 "when appropriate, after extended deliberation by the jury,"Rule 20.02(a), we believe that the totality of the circumstances under which the verdict here was reached mandates reversal and remand for a new trial.In Burroughs v. United States, supra, the court reversed a conviction in a case in which an "Allen " instruction ² was properly given but the trial court urged the jury to arrive at its verdict within another thirty-five minutes of deliberation.There, the Tenth Circuit said, "it is one thing to recall the jury to beseech them to reason together, and it is quite another to entreat them to strive toward a verdict by a certain time."Id., 434.Moreover, the setting of the fifteen minute "deadline" in the instant case was exacerbated by the atmosphere created by the colloquy between the trial judge and the foreman.After the court asked whether a verdict was "probable" and pointed out that the jury had been out for seven hours and fifteen minutes, the foreman responded with the words, "I think if we talk over perhaps one more time, after reading Instruction 11 and You feel that a verdict should come out."The emphasized portion of the foregoing clearly indicates the foreman understood that the court was requiring that the case be decided.The court did nothing to dispel that understanding, and its lack of action in this regard commended that understanding to the entire jury.Thus, although MAI-CR 1.10 was properly given, the imposition of a fifteen minute time limit, and the trial court's virtual directive that a verdict be reached, cumulatively mandate reversal and remand.Accord, United States v. Amaya, 509 F.2d 8, 10-11(5th Cir.1975);Goff v. United States, 446 F.2d 623, 626-627(10th Cir.1971).

Defendant asserts that the trial court erred in not suppressing the evidence concerning both the out-of-court and in-court identification by the Chaney brothers because: (a) requiring defendant to appear in the second lineup was tantamount to arresting him without probable cause or, in the alternative, deprived him of Fourteenth Amendment rights to a determination by a neutral magistrate that a "well grounded suspicion" existed that he had committed the burglary; (b) conducting the second lineup without the benefit of counsel violated defendant's right to the assistance of counsel; and, (c) the second lineup was unnecessarily suggestive.We find no merit in any of these arguments.

Defendant's first argument must fail for the reason that, as he admits in his brief, he was in lawful custody on the flourishing charge at the time the lineup occurred.State v. Radford, 559 S.W.2d 751, 752(Mo.App.1977).The basic concept of an arrest is the taking into custody; it would be superfluous to require another arrest of one already in custody before placing him in a lineup.Rigney v. Hendrick, 355 F.2d 710, 713(3rd Cir.1965), cert. denied384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685(1966).We also reject defendant's alternative argument that he was entitled to a determination by a neutral magistrate that a "well grounded suspicion" existed that he committed the burglary before he could be required to participate in the lineup viewed by the Chaney brothers.Defendant's argument in this regard is based on State v. Foy, 146 N.J.Super. 378, 369 A.2d 995(1976), which imposed such a requirement with respect to unconvicted pretrial...