State v. Steward

BLACKMAR, Judge,

dissenting.

The Court strains to reverse a conviction, amply supported by evidence, in a very serious case. In so doing, it overlooks two basic principles of appellate practice. First, we normally require that a party take measureable steps to call the trial court’s attention to perceived error, at a time when correction can be made. Second, and perhaps more important, we reverse not for error but for prejudice.

The Court excuses counsel from making immediate objection by labeling the trial judge’s comments “instructions,” and then pointing to Rule 28.02(e), so as to hold that specific objection was unnecessary. I do not believe that the rule should be extended beyond its plain language. It constitutes an exception to the normal rules of trial practice, and should be narrowly applied. Severe mischief may result if every communication between judge and jury is to be held to be an instruction. The word will spread among the criminal bar, “if the trial judge says something that may hurt your client’s case, keep quiet. Don’t educate the court or the prosecutor. Put it in your error bag. If you speak up the judge may correct the problem and you won’t have anything to appeal.”

The principal opinion compounds the fault by convicting the trial judge of error for giving a “non-pattern oral instruction” instead of MAI-CR2d 1.10 (now MAI-CR3d 312.10). That instruction is the so-called “hammer” instruction which, in my experience, is not usually welcomed by defendants. I am confident that the trial judge would have given the hammer instruction if defense counsel had asked for it. One thing is sure. In future trials judges who want to play safe will give the hammer more freely, rather than inquiring informally about the jurors’ opinions as to the possibility of agreement. I am not at all sure that such a state of affairs would improve the administration of criminal justice in Missouri.

Turning from the point of preservation to the merits, the Court unconvincingly relies on presumed prejudice because of variation from MAI. To buttress its argument, *827 it lifts one sentence out of context, while overlooking the trial judge's conscientious efforts to make it very clear to the jurors that they were not obliged to agree. When the jurors were called in at 5:05 p.m., for example, the judge explained that “[tjhere are those times when a jury tries their best but does not arrive at a verdict, they simply cannot arrive at a majority — not a majority, unanimity in their opinion.” He then asked if the forewoman understood that to reach a verdict, all twelve jurors had to agree. She responded in the affirmative, and Judge Mehan continued, “and so I guess what I’m asking you is, if you continue to deliberate, do you think you will arrive at a unanimous verdict? I don’t care what the verdict is, will you arrive at a unanimous verdict?” At this time, and again during the exchange which occurred at 8:15, Judge Mehan repeatedly gave the jurors the opportunity to dissent from the opinions expressed by the forewoman, as well as from his decision to send them back for more deliberations. Even the remarks quoted by the majority note Judge Mehan’s plea: “do not assume in my questions or in my discussion here with you that I have an opinion as to how long you should deliberate. Should have — should continue, whatever, I have no opinion as to that.”

I simply cannot conclude, from a reading of all of the trial judge’s colloquy with the jury, that any juror could possibly conclude that he or she was obliged to agree to a verdict which ran against the conscience. The judge clearly asked the jurors whether they thought they could agree; he made it clear that they did not have to. There is no indication of coercion.

We must also assume that the trial judge, in ruling the motion for new trial, gave full consideration to the claims of counsel about prejudicial pressure on the jury, and concluded, in the context of the entire trial, that there was no prejudice. He should not be considered an interested party simply because he is reconsidering his own rulings. The purpose of a motion for new trial is to permit such reconsideration. We should give great weight to his conclusion about the essential fairness of the proceedings. See Yoon v. Consolidated Freightways, Inc., 726 S.W.2d 721 (Mo. banc 1987).

State v. Hayes, 563 S.W.2d 11 (Mo. banc 1978), is clearly distingishable. The remarks of the trial judge quoted in the principal opinion seem to give the jury no alternative. They are virtually commanded to reach a verdict. There is no comparison to the remarks of the trial judge in the case now before us.

One further comment on MAI-CR3d 312.10 is appropriate. The so-called “Allen” or “dynamite” or “hammer” instruction has been much criticized. Numerous versions have been used by various judges over the years. Some contain language which is highly coercive. The history is detailed in 1 Devitt and Blackmar, Federal Jury Practice and Instructions, Section 18.14 (1977). The MAI version represents an attempt to provide a simple, non-coercive model for a trial judge who wants to use an Allen-type instruction. It was not designed to foreclose discrete inquiry about the prospects for a verdict. Yet the principal opinion predictably has this effect.

In the view I take I must reach the point about the trial judge’s initial error in advising the jury about the authorized punishment. There is no prejudice, because the eventual instruction was correct. Correction did not relate to guilt or innocence. The jury assessed the minimum punishment appropriate to first degree murder conviction. We should not countenance a holding which would make the correction of instructional error impossible.

It is of interest that defense counsel objected to the correction of the instructions about authorized punishment, while remaining silent on the matters on which the reversal is based. By so doing, the tHal court was led to believe that there was no further objection to the proceedings between court and jury.

The judgment of conviction should be affirmed.