State v. Starks

• Decision Date: 15 October 1991
• Docket Number: No. 54629,54629
• Parties: STATE of Missouri, Respondent, v. Frederick STARKS, Appellant.
• Court: Missouri Court of Appeals

Page 527

820 S.W.2d 527

STATE of Missouri, Respondent, v. Frederick STARKS, Appellant.

No. 54629.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 15, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Nov. 18, 1991.

Application to Transfer Denied Jan. 28, 1992.

David C. Hemingway, St. Louis, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

Defendant appeals his conviction on four counts of first degree robbery and one count of attempted first degree robbery. We affirm.

On Sunday morning, April 19, 1987, at about 6:40 a.m. defendant's co-defendant, Kevin Williams, entered the Eat-Rite Diner. When asked by Ms. Bachelor, the grill cook and only employee on the premises, if she could help him, he pulled a sawed-off shotgun from under his shirt and demanded that Ms. Bachelor and then the four customers, Mr. Chott, Mr. Power, Mr. Burmeister, and Mr. Buechlein, give him all their money and jewelry. Ms. Bachelor put the money from the register and rolls of change from underneath the counter into a brown paper bag. The customers added their money and property to the bag. Williams slapped Mr. Burmeister after he insisted he had no money. Williams grabbed the brown bag, ordered everyone in the diner not to move or he would shoot, backed out the door and started running north. Mr. Buechlein, got part of the license plate number of the car which Williams entered, and Ms. Bachelor jotted it down. He also saw Williams hold the shotgun as he entered the car. Ms. Bachelor called the police, who arrived a few minutes later.

Officer Robinson, on his way home from his shift, passed the diner and saw Williams standing inside with a sawed off shotgun facing the counter. He drove to the rear of the diner and saw defendant sitting in the driver's seat of a car with the front passenger door open, eating a hamburger. He observed Williams leave the diner and enter the car while holding the gun and the bag. The car took off, and Officer Robinson followed it. At one point he lost sight of the car for no more than two minutes. He found it again parked in front of an apartment, later identified as that of defendant's girlfriend, and saw defendant coming out of the building. Officer Robinson arrested Williams and defendant with the assistance of another officer. The officers found a brown bag in the car with the money and property stolen at the diner but never found the sawed off shotgun.

A joint trial of Kevin Williams and defendant began on January 25, 1988. On January 29, 1988 the jury found defendant guilty of four counts of first degree robbery and one count of attempted robbery. On March 25, 1988, the trial judge sentenced defendant as a prior offender to the same punishment as co-defendant Kevin Williams, a life term on Count I, probation denied, thirty years on Count II to run consecutively to sentence on Count I, thirty years each on Counts III and IV, and fifteen years on Count V. Sentences imposed on Counts III, IV, and V are to run concurrently with that of Count II. Defendant filed a timely appeal. The trial court denied his 29.15 motion for post-conviction relief on January 30, 1989.

I. Hammer Instruction

In his first point, defendant contends the trial court erred by failing to declare a mistrial, because the jury declared itself deadlocked and the court coerced the jury by reading MAI-CR3d 312.10 (1987), the hammer instruction. The court denied defendant's motion for a mistrial.

A court should declare a mistrial, a drastic remedy, only under extraordinary circumstances. State v. Young, 701 S.W.2d 429, 434 (Mo. banc 1985) cert. denied 476 U.S. 1109, 106 S.Ct. 1959, 90 L.Ed.2d 367 (1986). The trial court is in the best position to determine if a mistrial is appropriate. State v. Anderson, 698 S.W.2d 849, 852 (Mo. banc 1985). To find an abuse of discretion, the appellate court must find the jury was coerced, based on what was said and done at the time of trial. Id. at 853. A jury verdict achieved by coercion, judged by the totality of the circumstances, must be set aside. State v. McNail, 767 S.W.2d 84, 86 (Mo.App.1989). Whether and when to read the hammer instruction also rests with the trial court's discretion. State v. Broadux, 618 S.W.2d 649, 651 (Mo. banc 1981); State v. Anderson, supra, 698 S.W.2d at 853.

Defendant asserts that, under the circumstances of this trial, reading the hammer instruction coerced the jury. The jury began its deliberations at 3:36 p.m. on Friday, January 29, 1988. After consultation with the attorneys, the court granted the jury request to have exhibits sent to the jurors and dinner. Sandwiches were delivered about 6:00 p.m. At 7:00 p.m. the jury sent a message stating The jury is split eleven to one on Mr. Starks. We all agree that no decision can be reached. We have a verdict on Mr. Williams, but would like to know what we should do about our split?

At 7:30, after defendant made a motion to declare the jury hung, the court sent the following message: "The Court requests the Jury to continue to deliberate and to follow the instructions as given." At 8:00 p.m., the judge informed the attorneys that he intended to bring the jury into the courtroom, and if the jury remained eleven to one, to read MAI-CR3d 312.10 and "send them into some additional deliberations." Defendant moved for a mistrial, and if that was overruled, moved the court to declare a mistrial after polling the jury and before reading the hammer instruction. After the jury returned to the courtroom, the following exchange occurred:

COURT: ... I would ask you to listen carefully to the question that's proposed without indicating the direction in which the Jury is voting.... [H]as there been any change now numerically or is the number the same as indicated earlier?

FOREPERSON: It's the same.

COURT: Do you believe you would benefit by some further deliberations?

FOREPERSON: I do not believe so, your Honor.

COURT: What the Court is going to do is give you an additional instruction. I am going to read it at this time, and I invite your careful attention to the reading. [The court read MAI-CR3d 312.10 at 8:08 p.m.]

COURT: I ask that the Jury continue to deliberate. We will be in temporary recess for that purpose.

At 8:40 the Jury sent a message to the court requesting it to define the word " 'aided' as stated in 'aided or encouraged Kevin Williams in committing that offense.' " The court responded that "[t]he jury must be guided by the instructions as given." At 8:55 p.m. the jury delivered guilty verdicts on all counts.

Having been told that the jury is deadlocked does not preclude the trial court from reading the hammer instruction and requiring the jury to continue deliberations. Anderson, at 853.

Factors that appellate courts have considered when determining whether the trial court coerced the jury include the amount of time that the jury deliberates before the hammer instruction is read, the amount of time that elapses between the reading of the hammer instruction and the verdict, whether the trial judge knows numerically how the jury is split and the position of the majority, and whether the giving of the instruction conforms with the Notes on Use.

No abuse of trial court discretion was found in the following cases: State v. Anderson, 698 S.W.2d 849, 852-53 (Mo. banc 1985) (jury deliberated about four hours, jury informed court it was deadlocked, hammer instruction read, and jury required to continue deliberating. Defendant argued it was coercive to require the jury to continue deliberations after it indicated deadlock an hour after the hammer instruction was read. "The trial court is not compelled to accept at face value the jury's contention that it [is] hopelessly hung." Id. at 853. The court pointed out that it would be error for the trial court to declare mistrial if such a decision was hastily made.); State v. Broadux, 618 S.W.2d 649, 652-653 (Mo. banc 1981) (no abuse of discretion to read the hammer instruction "after receiving voluntary, unsolicited information that eleven jurors favored a verdict of robbery in the first degree and one favored stealing from the person." It overruled State v. Sanders, 552 S.W.2d 39 (Mo.App.1977) and disapproved of State v. Johnson, 610 S.W.2d 101 (Mo.App.1980) and State v. Holt, 592 S.W.2d 759 (Mo. banc 1980) to the extent that they held that the hammer instruction or words from the trial judge coercive when the judge knows the position of the majority.); State v. El Dorado Management Corp., Inc., 801 S.W.2d 401, 411 (Mo.App.1990) (jury deliberated four and a half hours, and the court read the hammer instruction after learning the jury was evenly split.); State v. Marsh, 792 S.W.2d 687, 692 (Mo.App.1990) (Jury deliberated more than five and a half hours, verdict delivered four and a half hours after hammer instruction read, and the trial court did not know how the jury lined up numerically.); State v. Harris, 751 S.W.2d 131, 132 (Mo.App.1988) (the fact that a jury returns a verdict shortly after the hammer instruction is read, does not, by itself, establish coercion.); State v. Hyzer, 729 S.W.2d 576, 578 (Mo.App.1987) (jury deliberated over one hour, the foreman announced a hung jury, both attorneys suggested giving the hammer instruction, the jury called, said they were split ten to two without indicating the position of the majority, the hammer instruction was given, one hour later the jury reached a verdict.); State v. Sutton, 699 S.W.2d 783, 786 (Mo.App.1985) (jury deliberated over five hours, jury announced it was divided ten to two without indicating the majority position; the giving of the instruction conformed with Notes on Use.); State v. Smith, 686 S.W.2d 43, 45 (Mo.App.1985) (after two and a half hours of deliberation, jury was divided ten to two, court gave the hammer instruction, jury delivered a verdict fifty minutes later.); State v....