State v. Peters

• Decision Date: 25 May 1993
• Docket Number: No. 75036,75036
• Citation: 855 S.W.2d 345
• Parties: STATE of Missouri, Respondent, v. William M. PETERS, Appellant.
• Court: Missouri Supreme Court

Page 345

855 S.W.2d 345

STATE of Missouri, Respondent, v. William M. PETERS, Appellant.

No. 75036.

Supreme Court of Missouri En Banc.

May 25, 1993.

As Modified on Denial of Rehearing June 29, 1993.

Susan L. Hogan, Appellant Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Ronald L. Jurgeson, Philip M. Koppe, Asst. Attys. Gen., Kansas City, for respondent.

THOMAS, Judge.

William M. Peters, appellant, was charged by indictment with one count of assault and one count of armed criminal action. The events leading to these charges occurred in January 1990. The victim was married to, but separated from, Peters at the time of the incident. They had been separated for about a year. Apparently, the victim had agreed to see Peters over the weekend of January 12, 1990, so that Peters could spend some time with his two young sons. On a trip to the park to shoot off firecrackers, Peters began to brutally beat the victim. In the course of the day, Peters repeatedly struck the victim with his fists, hit her in the back of the head with a bottle, beat her with a tire iron, and tied her up, stuffing clods of dirt into her mouth and abandoning her in a field before returning to collect her. The victim suffered severe injuries as a result of this ruthless and brutal beating. Peters did all of these things while the two young boys were present.

Following the presentation of the evidence, instructions on assault in the first degree, assault in the second degree, armed criminal action with assault in the first degree as the underlying felony, and armed criminal action with assault in the second degree as the underlying felony were submitted to the jury. To find armed criminal action in connection with either assault charge, the instructions explicitly required a finding of guilt on one or the other assault charges as a condition precedent to a finding of guilt of armed criminal action. ¹

After deliberating for a little over 2 1/2 hours, the jury returned a verdict of not guilty of assault but returned a verdict of guilty of armed criminal action with assault in the second degree as the underlying felony. The trial judge refused to accept the jury's verdict. The basis of the refusal was that, as the instructions expressly indicated, a defendant may not be found guilty of armed criminal action if the defendant is not also found guilty of the underlying felony. The trial judge then directed the jury to return to the jury room and stated: "All right ladies and gentlemen, you have not followed the court's instructions in the verdict forms that you have handed me. I'll have to ask you to go back to the jury room and read the instructions carefully and let us know when you've got it figured out."

The jury deliberated for another 1/2 hour that evening before asking to be excused for the night. The next morning the jury returned verdicts of guilty of assault in the second degree and guilty of armed criminal action with assault in the second degree as the underlying charge. The jury recommended a one year sentence in the county jail on the assault conviction and ten years imprisonment in the Missouri Department of Corrections on the armed criminal action conviction. The trial judge accepted the jury's verdict. Peters was sentenced according to the recommendation of the jury.

On appeal, Peters asserts that the finding of "not guilty" of assault by the jury acquitted him of all charges of assault and armed criminal action despite their verdict of guilty on armed criminal action. Moreover, Peters contends that the trial court subjected him to double jeopardy, in violation of the Fifth Amendment of the United States Constitution and article I, section 19, of the Missouri Constitution, by sending the matter back to the jury for further deliberations.

We hold that the first two verdicts the jury attempted to return were inconsistent because if the defendant was not guilty of assault, he cannot be guilty of armed criminal action based on assault. The court acted properly in sending the matter back to the jury for further consideration. In addition, we hold that the action of the court did not subject Peters to double jeopardy. The judgment below is affirmed.

Peters would like this Court to follow the analysis in State v. Watson, 816 S.W.2d 683 (Mo.App.1991), a case similar to the one presented here. In Watson the jury returned verdicts of not guilty of kidnapping, the underlying felony, but guilty of armed criminal action. The Court of Appeals, Eastern District, held that because "the initial verdict of not guilty of kidnapping was clear on its face and was in proper form," the trial court should have accepted the verdict of not guilty of kidnapping and should have rejected the verdict of guilty of armed criminal action. See also State ex rel. Pruitt v. Adams, 500 S.W.2d 742 (Mo.App.1973). The problem with the analysis in Watson is that in many situations in which there are inconsistent verdicts, each verdict will be consistent on its face; it is only when you consider them together that the inconsistency becomes apparent. Even when the inconsistency appears on the face of a single verdict, it may be necessary to ask the jury which aspect of the verdict is correct. In the final analysis, the verdict is just a communication from the jury to the judge. If the verdict is ambiguous, the best way to clarify the message is to ask the sender of the message (the jury) what was meant. Whenever possible, the jury should be allowed to resolve the inconsistency.

Many times it is impossible to have any idea which verdict is correct and which is incorrect. State v. Cline, 447 S.W.2d 538 (Mo. banc 1969), cert. denied, 398 U.S. 910, 90 S.Ct. 1706, 26 L.Ed.2d 71 (1970) (jury originally returned a verdict finding defendant guilty of felonious and burglarious stealing but the jury made no finding on the charge of burglary which is the underlying charge for burglarious stealing; held the trial court should not have accepted the verdict because the verdict returned was "incomplete and sufficiently ambiguous and confusing as to be insufficient to support either a judgment of conviction or acquittal"); State v. Hurley, 602 S.W.2d 838 (Mo.App.1980) (verdict assessed a punishment not authorized by law; proper to send back to jury for correction); State v. Jones, 583 S.W.2d 561 (Mo.App.1979) (jury foreman signed both guilty and not guilty verdict forms for each count; resubmission to the jury for correction proper).

Did the trial court err in refusing to accept the inconsistent verdicts? In State v. Lashley, 667 S.W.2d 712 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984), we said:

The law is clear that when a jury returns a verdict in improper form, it is the duty of the trial court to refuse to accept the same and require further deliberations until a verdict in proper form is returned. The jury's verdict is not binding until it is accepted by the court and the jury is discharged.

Id. at 715 (citations omitted). The trial court was correct in not accepting the inconsistent verdicts. We overrule State v. Watson, 816 S.W.2d 683 (Mo.App.1991), and State ex rel. Pruitt v. Adams, 500 S.W.2d 742 (Mo.App.1973), and any other cases using the analysis used in these cases.

In a situation such as in the present case or in Watson in which one of the verdict directors incorporates the elements of another charge by requiring a finding of guilty on the underlying charge, an argument can be made that since the verdict directors in effect require the jury to resolve the underlying charge first, it is safe to assume this is the correct verdict and that the second verdict is the incorrect one. Apparently this was the rationale followed in Watson. While this contention is not without merit, the assumption that the first count decided (the underlying felony) is correct is not necessarily valid. For example, the error may arise simply in the process of filling out the verdict forms, in which event either verdict could be the one intended by the jury. Since the jury is still present and the trial judge and attorneys are aware of the inconsistency and the inconsistent verdicts have not been accepted, the safest and most accurate way to resolve the ambiguity is to resubmit both counts to the jury and find out for sure which verdict is the one the jury intends.

It needs to be recognized that the circumstances in this case are entirely different from most cases that have dealt with the issue of inconsistent verdicts. None of the cases cited by the dissent involve situations where the trial judge refused to accept inconsistent verdicts from the jury. The cases relied on by the dissent concern whether inconsistent verdicts, which have been accepted by the trial judge and the jury has been discharged, should be enforced. In this case, the trial judge, to his credit, was alert and observed that the two verdicts the jury was attempting to return were inconsistent, and the judge refused to accept them. The dissent apparently agrees that when a single verdict is returned that has an inconsistency on its face, such as between the penalty and the guilt finding, the preferred procedure is to refuse to accept the verdict, supply the jurors with a new form and instruct them that the previous verdict was inconsistent and they should reread the instructions. On the other hand, in this case where the inconsistency appears in two different counts, the dissent insists that the trial court should have accepted the not guilty verdict even though the verdicts the jurors attempted to return clearly demonstrate that the instructions were not followed. We believe the trial judge did the proper thing in returning the verdict and asking the jury to reconsider the instructions. Only the jurors know what their intended verdicts were, and, because they are in the courtroom and available, we should afford them the opportunity to correct...