State v. Snider

Decision Date30 November 1993
Docket NumberNos. 61111,s. 61111
CourtMissouri Court of Appeals
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Debbie SNIDER, Defendant-Appellant. Debbie SNIDER, Movant, v. STATE of Missouri, Respondent. & 63134.

Arthur S. Margulis, David R. Crosby, Margulis & Grant, P.C., Clayton, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Judge.

Defendant, Debbie Snider, appeals from her conviction of six counts of felony stealing. The evidence showed, over the course of two years, defendant misappropriated over $60,000 from Rizzo's Top of the Tower restaurant where she was employed as a cashier. Defendant evaded detection by voiding over one thousand guest checks on the cash register receipt to compensate for the money she pocketed. Her peculations were finally discovered when a customer called the restaurant to discuss the service she received. The owner of the restaurant was unable to locate her guest check to determine which waitress had served her. He saw, however, that the caller's name was listed in the reservation book. He then checked the restaurant records and noticed the immense number of entries which had been voided while defendant was working as a cashier and the corresponding absence of guest checks for persons whose names were noted in the restaurant's reservation book. When the owner of the restaurant accused defendant of stealing money for years, defendant responded "(Y)ears? I've only been doing it for two."

The state brought the following charges against her, listed in chronological order: Count V alleges defendant stole over $150 on or about November 20, 1987; Count VI, on or about November 27, 1987; Count IV, between January 1 and December 31, 1988; Count III, between January 1 and March 28, 1989; Count II, on or about March 29, 1989; Count I, between March 30 and April 12, 1989. Counts V and VI are each based on a single act of stealing in which defendant stole over $150. Since the amount taken by way of one void fell within the felony statute, the state charged defendant separately for Counts V and VI. Counts I-IV, however, were based on thefts occurring over a span of two years. Because none of these voids involved stealing more than $150 the state employed § 570.050 RSMo 1986 to aggregate the amounts stolen into four time periods. Each of these periods included a sufficient number of voids to fall within the $150 requisite amount for a felony conviction. Counts I-IV each included multiple voids defendant made during thirteen, one, eighty-nine, and four hundred and sixty-six days respectively. Defendant was charged, convicted and sentenced on all six of these felony counts. Defendant filed, and the court denied, a 29.15 motion. Although she originally appealed this denial, she has taken no further actions on this motion and at oral argument asked that it be dismissed.

I.

We first address defendant's argument that under the totality of the circumstances the trial court coerced a verdict. Defendant raises this issue for the first time on appeal and requests plain error review. She cites State v. Burns, 808 S.W.2d 1 (Mo.App.1991), for the proposition that "By definition coercion of a verdict is a matter affecting substantial rights and involves issues of manifest injustice or miscarriage of justice." Id. at 2, Rule 30.20.

The relevant facts are as follows. After a five day trial, at 10:38 a.m. on the Friday of the three-day-Labor-Day weekend, the jury began its deliberations on the six-count charge against defendant.

At 3:25 p.m. the jury sent the court a note reading: "If we do not reach unanimous decision by 5:00 p.m., what [sic]." The court responded with the following comment: "there's nothing significant about 5:00 p.m....."

At 4:10 p.m., after deliberating over five hours, the jury sent the court a note stating they could not reach a unanimous verdict and that their decision was split. The court asked for the numerical division of the jury without disclosing whether the jury was leaning towards a finding of guilt. The jury foreman informed the judge that the division was: Count I, six and six; Count II, eight and four; Count III, six and six; Count IV, six and six, Count V, nine and three; Count VI, eight and four. The court then read the hammer instruction (MAI-CR3d 312.10) and sent the jury back for further deliberations.

At 5:25 p.m. the jury forwarded the following letter to the court:

Your Honor,

We are at an impasse--Further deliberations will not change the vote of anyone. We have truly tried in earnest to reach a verdict and have been unable to. I am sorry.

/s/ Pat McWard (foreman)

Vote is 9-3 on every count.

The transcript is devoid of any judicial response to this note.

Then at 6:00 p.m. the jury sent the court a note reading:

Your Honor,

Further deliberation is futile--our views are so firm that anymore deliberations will not change our opinions. We have in all earnesty [sic] tried to reach a verdict but it will not happen with this jury.

/s/ Pat McWard

In response to this note, the court sent written inquiries as suggested in Notes on Use 4 MAI-CR3d 312.02. 1 The court records do not indicate whether the interrogatories were returned.

At 7:58 p.m. the jury returned a verdict of guilty and recommended two months in jail and a fine on each of the six counts.

The length of time which a jury is allowed to deliberate and the determination of whether to read the "hammer instruction" or to administer the interrogatories are within the sound discretion of the trial court and neither of these factors conclusively establish coercion. State v. Bell, 798 S.W.2d 481, 485 (Mo.App.S.D.1990). The trial court does not have to accept the jury's claim that it is deadlocked. State v. Anderson, 698 S.W.2d 849, 853 (Mo. banc 1985), State v. El Dorado Management Corp., 801 S.W.2d 401, 411 (Mo.App.E.D.1990). Generally, "[b]eing told by a juror that further deliberations would not be helpful in resolving a deadlock does not preclude the trial judge from reading the hammer instruction and certainly does not prevent the trial judge from attempting to facilitate a verdict by giving no additional instruction and allowing further time for deliberation." Anderson, 698 S.W.2d at 853 (citations omitted). The verdict is only considered coerced when under the totality of the circumstances it appears that "the trial court [was] virtually [directing] that a verdict be reached and by implication indicated it would hold the jury until a verdict was reached." State v. McNail, 767 S.W.2d 84, 87 (Mo.App.E.D.1989).

Defendant cites State v. McNail, Id., for support for her contention that the verdict was coerced. We find that her reliance on McNail is misplaced. In McNail the defendant was charged with raping his daughter on two separate occasions. The jury started deliberations at 1:05 p.m. on a Saturday of a three-day state holiday. At 5:30 p.m. the jury submitted a note reading: "What happens when we do not agree 100%? Ten of us have voted guilty on two counts of rape; two have voted not guilty." Over objection the court instructed the jury to continue deliberations. At 7:45 the jury submitted another note to the court reading: "I'm sorry but it seems we cannot agree. The two persons differing feel they cannot in good conscience compromise their opinions. How long must we deliberate before a 'hung jury' is declared?" Again, the court instructed the jury to continue deliberations. At 8:07 the court gave the jury the hammer instruction and an hour later sent the deputy sheriff into the jury room to obtain a list of juror's relatives and friends who would be able to bring a change of clothes and toiletries in anticipation of the jury spending a night at the hotel. Ten minutes after the deputy sheriff left the room, the jury returned a verdict acquitting the defendant on one count and convicting him on the second count.

The trial court, in McNail, was aware of the jury's position on the question of guilt, as well as its numerical division. The appellate court noted that, in light of these facts, forcing the jury to continue deliberations could constitute coercion. The court also implied that the prosecution's evidence was weak and that the fact that the jury acquitted the defendant on one count and convicted him on the other count while only imposing a minimum sentence for an abhorrent crime indicated that the jury's verdict may have been a compromise. In the case at hand, although the judge knew the jury's numerical breakdown, he was not aware of its disposition when he sent the jury back for further deliberations and submitted the interrogatories. Furthermore, the jury convicted defendant on all counts rather than convicting on some and acquitting on others which could be interpreted to be a compromised verdict. Finally, in McNail, the jury had already deliberated through the first day of the three-day holiday weekend and was put under the impression that they would be spending the night at a hotel and then deliberating through the second day of the holiday weekend. The opinion does not indicate whether inquiries had been made during voir dire or during deliberations as to whether any of the jurors had plans for the holiday weekend. Whereas, in the present case, the attorneys informed the jury during voir dire that there was a possibility of the case lasting through Friday and ensured that there were no jurors who had conflicting plans. Although the jury reached a verdict on Friday at 7:58 p.m., there would have been ample time for the jury to continue deliberations without being held overnight.

This court's research reveals that defendant's situation is similar to that which can be found in State v. Anderson, 698 S.W.2d at 849. In Anderson, after four hours of deliberations, the jury reached a verdict on one count and...

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