State v. Broadux
618 S.W.2d 649
Mo.
1981
Check Treatment

*1 е., (1) accused, 1880, (1981); having ex- which Did S.Ct. L.Ed.2d 378 counsel, pressed a for assistance of desire was not available to the trial (emphasis initiate further communication? parties at time nor the West- of submission (2) question added) and If the answer to quote ern District at time of transfer. We voluntarily, “yes” the accused do so did following therefrom: intelligently? knowingly and reasonably It is clear under our cases that say that in the instant case Suffice it to vol- waivers of counsel must not be suggesting there is in the record untary, knowing constitute a and in- but appellant initiated those further com- telligent relinquishment or abandonment challenged which the munications from right privilege, of a known or matter taken; but, statements were to the con- depends ‘upon in each case trary, opposite clearly evident. The particular facts and circumstances sur- “no”, question answer to number one rounding including the back- inquiry question need be made reference ground, experience and conduct of the number two. Zerbst, accused.’ Johnson v. 304 U.S. overruling appel- trial court erred in 1019, 1023, S.Ct. L.Ed. [58 1461] Suppress challenged lant’s Motion to (1938). 101 S.Ct. at 1884. [*] [*] [*] [*] [*] [*] conviction cannot stand. Other mitted statements and for that reason the may may not arise aat pоints later trial present sub- and need not be considered at this time. although ... we have held that after initially being advised of his Miranda judgment is reversed and the cause is rights, may validly the accused proceedings himself remanded for such proper. rights respond waive interroga

tion, Butler, see North Carolina v. U.S. at 372-376 S.Ct. at

[441 369] [99 All concur. strongly ‍‌​​‌​‌​‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​​‌​‌​​​‌‍Court has indi 1759] 1757 —

cated safeguards that additional are nec

essary counsel; when the accused asks for

and we now hold that when an accused

has invoked his to have counsel

present during interrogation, custodial

valid waiver of cannot be es by showing

tablished only that he re

sponded police-initiated to further custo interrogation

dial even if he has been Missouri, Respondent, STATE of rights. advised of his We further hold accused, Edwards, that an having such as expressed his po desire to deal with the BROADUX, Appellant. Willie counsel, only through subject lice is not interrogation by further the authorities No. 62739. until counsel has been made available to Missouri, Supreme Court of him, unless the accused himself initiates En Banc. communication, exchanges further poliсe. conversations with the July 101 S.Ct. at 1884^1885. application guidance

Courtroom

and dictates the Edwards case necessi- questions,

tates a readiness to answer two i. *2 Bennett,

Mary Defender, Asst. Public St. Louis, appellant. for Ashcroft, Gen., Atty. Otto, John Paul R. Jay Haden, Gen., Attys. Asst. Jefferson City, respondent. for HIGGINS, Judge.

Willie Broadux was convicted robbery stealing and punish- motor vehicle. The court fixed his imprisonment ment as a second offender at thirty years robbery years for for and ten stealing. judgment and Sentence were accordingly; rendered impris- the terms of. imposed onment were to run consecutively. appeals The court of would have affirmed judgment but transferred the case be- cause opinion of conflict between its and propriety other decisions on MAI-CR 1.101 after the court had been apprised by that it was deadlocked favoring robbery eleven to one conviction of rather than the lesser included offense of persоn. principal from the question is whether the trial court abused its discretion when it the instruction. question A second is whether the court proper application of the made Second Of- fender Act. Affirmed.2 reads: instruction fact that which under evidence and his Yet conscience he believes to be untrue. “It is desirable that there a verdict you respect opinions every each of case. The trial of a lawsuit involves effort, your parties you considerable time and and fellow would ‍‌​​‌​‌​‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​​‌​‌​​​‌‍have them rights respect yours, spirit are entitled to have their determined and in a of tolerance and every bring understanding once and for all in case. The twelve endeavor to the deliber- try agreement chosen to this case should be as to an ations of the whole qualified well to do sо as other twelve upon a verdict.” might Open hereafter be chosen. by you your jury freely frank discussion room of 2. The Court has drawn you Reinhard, J., reaching the evidence in this case aid result on the same facts; however, agreeing upon both issues in case. agree should ever to a verdict that violates Court, the instructions of the nor find as a you Sep- Vickie Ann Stewart was accosted Court hоw stand on that Count tember a man who stuck a non-guilt reference to —the assailant, that, broken bottle into her side. The you does not want to know could defendant, later identified as her told you numerically tell the stand Court so, money. him all her Count, After she did numerically. Eight as to that accompany he forced her to him to a con- four, three, two, nine ten and what- *3 get struction area and to a truck. As intо ever, eleven and one. began

he to drive around the construction “Yes, responded, The foreman Eleven Sir. area, the owner of the truck and other judge to one.” The then received the ver- began pursuit. construction workers De- guilty (robbery) dicts II on Count stopped fendant the truck and forced his (assault), guilty not on III and over Count victim to take off her clothes from the objections of сounsel MAI-CR 1.10. complied waist down. After she one of the The retired for further deliberations construction workers rammed a backhoe p. and returned at 4:40 m. with a verdict on into the truck and both the defendant and finding guilty robbery Count I jumped the victim out. ap- Defendant was degree. prehended police. and turned over to the Appellant contends the court erred charges Defendant was tried оn of first MAI-CR 1.10. He asserts that I; degree robbery, stealing Count a motor such by only action a who not II; vehicle, Count and assault with intent jury’s aware of the dead-locked numerical aforethought, to ravish with malice Count split, by but also which verdict is favored III. majority, constitutes reversible error jury began its deliberations at 11:00 because it will impact have a coercive on During a.m. minority jurors. argues He that be sent the a note “Jury which stated: cause the earlier note indicated that hung robbery degree. juror first One split was eleven to. one in favor of robbery feels first to harsh. Re- robbery degree, in the minority first maining jurors feel person from a juror fully could assume that the was too lenient.” The instructed the apprised asking and was for a unanimous jury: guided “The will be the evi- vote; reading thus the of the instruction dence in the case and the instructions of the placed pressure juror on the one to conform court.” because, to the majority juror, vote to that thing— the instruction could mean p. At 3:25 m. the informed counsel judge thought that that he re going give that he was MAI-CR 1.10. consider his vote. The jury was called into the courtroom and the court asked if it had reached a verdict approved by MAI—CR 1.10 was the Su on any of the counts. Thе indicated preme accompa Court in 1973.3 The notes that it had reached verdicts on Counts II nying use; MAI-CR 1.10 do not limit its and III. The court then asked: they provide

Now, Foreman, “appropriate”. going Mr. The decision whether I’m to ask you question you a and I MAI-CR 1.10 thus rests in the discre pay want real * * * Phillips, close attention to the Court. tion of the trial court. v. 511 With- State 841, telling you (Mo.1974); out this court how stand on S.W.2d 844 State v. Haw kins, 102, you (Mo.App.1979); whatever Count have not 581 104 S.W.2d 659, telling Jones, (Mo. reached a verdict on—without State v. 545 S.W.2d 666 34, (1896). language of instructions similar to MAI-CR 136 Mo. 37 S.W. 815 1.10, commonly presently appears referred to as “hammer” in- contained MAI-CR 1.10 structions, upheld approved early has been since before the and was as 1962. See State See, Pierce, Bozarth, century. g., (Mo.1962). turn of the State v. e. v. 826 Jenkins, (Mo. 1980), App.1976); banc controlled the case. State S.W.2d In (Mo.App.1974). State v. returned to twenty court one hour and minutes after Appellant’s contention is more retiring reported to consider its verdict and speculation than and is refuted it was deadlocked. then court’s instruction to the Rather than asked the foreman to state the numerical juror, to coerce a MAI-CR ‍‌​​‌​‌​‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​​‌​‌​​​‌‍1.10 admonishes saying division without the vote “agree to ver- him thаt he should never replied, guilty ,” “Nine was. The foreman dict that violates the instructions — stopped repeated before the court him and court, nor as a fact that which under find just he wanted numerical division. and his conscience he believes evidence responded, to be untrue.” a caution is the crux The foreman “Nine and “Such three.” the instruction” and is consistent with questioning The court determined frоm duty the basic of a and the fundamen- possibility there was no concept Hayes, tal a fair trial. verdict, jury reaching a and declared a mis- *4 (Mo. 1978). (The 563 12 banc S.W.2d trial. After defendant’s second trial result- judgment was reversed because the trial conviction, ed in a he contended that double court language omitted this in its instruction jeopardy resulted from tried a second addition, jury.) In to the the jury after be- timе after the court had declared a mistrial ing try case, by sworn to the the is instructed jury adequate before the had and reasona- statement, ruling court that: “No or re- ble time to consider its verdict. The court during trial is mark that I make the held that the trial court acted within its my opinion indicate of what the intended to declaring sound discretion in a mistrial and facts are.” appellant put jeopar- was not in double Accordingly, court not abuse its the did dy by his second trial. The Court stated: by reading MAI-CR 1.10 after discretion blunder, Thanks to the foreman’s receiving voluntary, unsolicited information trial found himself in a difficult jurors that eleven favored a verdict of rob- Knowing jury situation. was bery and one favored appellant, against nine to three person. the court to return them for further de- Sanders, (Mo.App. v. 552 39 S.W.2d signal be a clеar that the liberation would 1977), conflicting is one of the cases cited stood, they thought who knew how appeals. the court of In that case the court It they were track. would 1.10 after held that the of MAI-CR appellant’s three inevitably make split the trial learned the was about continu- apprehensive doubtful and nine three in conviction was to favor of could, appellant ing The to hоld out. error, case, and that under the facts of sending justification, contend principally that it took ten minutes for or 1:00 o’clock back at 12:45 to reach a verdict after the instruc they knew morning, when the given, coercive tion was the instruction was conviction, was a three for were nine to required reversal. leverage to give the state more tactic to conflicting case v. The sеcond is State appellant. It would be differ- convict the Johnson, (Mo.App.1980). 610 S.W.2d only that the ent if the knew case, Following submission three, because then his at- stood nine to approximately three hours. deliberated for by requir- tempt bring about a verdict message then sent a to the trial ing would be made further deliberation judge indicating deadlocked ten to it was knowing which side without the court’s Upon receipt of the two for conviction. beneficiary of his likely would message, the court MAI-CR 1.10. before Under the circumstances action. him, could avoid only way the court appeals upon reversed was to Holt, to the state showing favoritism conclusion that State in State v. This contention answered His action was not declare a mistrial. (Mo. 1980). Quinn, banc hasty over or rash. S.W.2d Quinn objected prosecu- to his Defendant appeals court of concluded Id. at 772. The because Offender Act tion under the Second Johnson, supra, that: in State during the second trial proved it was not require- If, supra, the mere as in previous convicted of the that when he was jury continue deliberations that the ment a trial his offense he had waived suspect, it to reason that stands rights con- jury and all the constitutionаl 1.10, under like condi- giving of MAI-CR it, guilty plea had a nected with or that tions, suspect. is even more rejected defend- factual basis. The Court is the of this court that both argument and held that the certified ant’s requirement of continued or further were not presented by the state records of MAI-CR invalid, sup- facially and were sufficient instruction”) 1.10, (the so-called “hammer port application of the Second Offender jury, subsequent to disclosure appel- Act. The further noted Court is deadlocked support presented no evidence to lant had vote on how the stand on challenge. Id. at 602-08. innocence, or convic- the issue of presented present In the acquittal, prejudicial constitutes tion or prior convic- invalidity no evidence of error. the record did not disclose tion and at Id. invаlidity on its face. trial court was *5 involved in MAI-CR 1.10 was not State applying correct in the Second Offender Holt, supra. The issue was whether Act. declaring court in a mistrial after the erred Affirmed. jury interrupted its advised guilt,

the court how it stood on the issue of possi- and further advised that there was no MORGAN, JJ., concur. RENDLEN and bility reaching a of verdict. The extension Johnson, supra, in State v. WELLIVER, J., separate concurs in con- disаpproved; is and to the extent curring opinion filed. Sanders, supra, State v. is inconsistent with DONNELLY, J.,C. concurs and concurs it, too, opinion, longer is no to be fol- separate concurring opinion of WELLIV- lowed. ER, J. Appellant contends also that the tri SEILER, J., separate dissent- dissents admitting al erred in his court evidence of ing opinion filed.

prior conviction in Wisconsin under trial, Second Offender Act. At outside the BARDGETT, J., dissents and concurs presence jury, the state introduced SEILER, dissenting opinion of J. separate copies certified of a Wisconsin criminal warrant, judgment of conviction and sen WELLIVER, Judge, concurring. rape, tence for and execution of sentence in reluctantly My I concur. reluctance is Appellant the Wisconsin State Prison. as principal approves because the рrosecution serts that the has the burden of Instruc- of the so-called “Hammer showing appellant pleaded guilty that when 1.10, tion”, during MAI-CR the delibera- charge rape in Wisconsin that coun lawyer has jury. Every trial tions plea present, sel was was made experience benefitting either had the voluntarily understanding, and prejudicial being from or the victim of the plea, factual basis for the and there was а resulting giving of this by effect appellant waived his to trial been lawyers Trial also have jury- instruction. long jurors prohibited aware that so are guilt should reconsider their vote? Defend verdicts, impeaching from their there was ant’s contention prejudiced that he was un appellate or no chance that little an speculation— der these circumstances is not prejudice change would either find plain is based on common sense. Of jury verdict. course, prove there is no can in court what the thought, as prejudice in these does not cases flow are permitted testify not in impeachment wording from of the instruction. ‍‌​​‌​‌​‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​​‌​‌​​​‌‍The verdict. their City Romandel v. Kansas proper instruction is a statement of the law Co., (Mo. Public Service preju- and content is unassailable. 1953). But that does not mean we should dice does psychological flow from the im- ignore the effect we know this instruction pact of given being during instruction average juror would on the have who is on deliberations and from the undue side, minority especially vote emphasis accorded the instruction as a re- eleven one. sult of its being given apart and separate all from of the other instructions. plate language Thе boiler in MAI-CR 1.10 “no about should ever find as a While I am reluctant to abolish in- fact that which under the and evidence by judicial I opinion, sup- struction would conscience he believes to be untrue” is self- port changing MAI to make “Hammer serving protestation, buried in the instruc- mandatory Instruction” a instruction all tion, knowing the jury. cases, civil, both criminal and with di- innocence, stands on has made it rections that it be togеther with all plain that there should in every be a verdict other instructions case is when the sub- that all this has taken “considera- mitted to the effort”, ble unspoken implica- time something tion there is unwor- SEILER, Judge, dissenting. thy minority yielding or unfit in the not not for that MAI-CR 1.10 majority. It tends to make the minori- throughout system, the Missouri court from ty guilty or step. feel out of courts, appellate is referred to as *6 It correct imply is not to there must be a Why the “hammer.” is it the called “ham- every jury verdict in case. The has the by judges lawyers mer” alike if not in disagreement, remain in up to to end recognition quality? of its inherent coercive just hung jury, a as much as it has a expanding of Instead the circumstances in jury to arrive at a verdict. No has to arrive used, which it can be proposed opin- as the power at a verdict. It has the return to a does, ion I believe we should serious verdict for one side or the to other or disa- to abolishing consideration the instruction gree any on verdict. It is an abuse of the altogether, prohibiting or at least its use jury system imply or declare otherwise. judge way when the is aware which the jury system It is once vital that the jury leaning is jury is aware that jury retires consider its verdict that he knows. We all know it is for the independencе be scrupulously observed. purpose inducing a other verdict —in words, justification There no more letting is to influence is in disa- greement. judge independence the interfere with this It is particularly coercive when letting the than there would be for sheriff judge knows that knows how the guilt lawyers try or the they stand as to to influence the or innocence. What long ago else could it mean to the in after it had retired. We lone decided except case, in judge jury gets believed he Missouri that once the solely should reconsider his vote? Does then outcome is in the hands of seriously thought contend the why That is one we insist Reason who judge meant that the eleven were for on a unanimous verdict in a criminal case. were, court, as the matter what the facts however, telling is a The “hammer” saving always cоntain the to decide as instruction would they are not free juries that guaran- issue our come We should not fit, they language. should instead they see 1.10 will be error ty believes MAI-CR agreement, because to an should, particularly where the is the effect of the above reason- they free. This they stand as of the ing. knows This would mean the action knows beyond It introduces extra- guilt innocence. in the hammer is misstates improper review, dangerous factors. It neous and doctrine. parties are It is not true the law. requiring in further judge’s action rights de- necessarily to have their entitled MAI-CR when the under 1.10 deliberation every though there is as

termined they aware were eleven jury knew he was wrong do not arrive something if spoke much louder one for conviction somehow at a verdict or that the are judge abused his dis- his words. The than society parties if a verdict is liable to say so. cretion we should it that because a not reached. Nor is true reverse and remand I dissent and would money involves time and lawsuit for a new trial. every case. jury must reach a verdict money have to What relevance do time and

questions or innocence? jury system is under attack. It size,

shrinking usage, strength. and in ‍‌​​‌​‌​‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌​​‌‌​​‌​‌​​​‌‍instruction, particularly as it

The “hammer” here, produces

was used still further weak- brings

ening jury system. It in an

outside influence to interfere with the

jury’s deliberations has verdict, very

retired to consider its time be held sacrosanct. when, here,

even worse the outside influ- brought

ence is to bear himself they he when the knows knows how FLOWERS, Appellant, James Edmond stand. It is a direct assault independence jury, no matter judge.1 how noble the motive of the Missouri, Respondent. STATE principal opinion neatly avoids the No. 62310. by saying issue that since the “crux of the *7 Missouri, instruction” is the admonishment that no Supreme Court of “agree to a vеrdict that vio- Banc. En court, lates the instruction of the find nor July as a fact that which under the evidence and untrue”, any his conscience he believes to be

contention that the instruction is coercive is

refuted the terms of the instruction. reasoning,

Under this of MAI- always

CR 1.10 would free be error

safely within the discretion of the trial here, proposed opinion states that “hammer” of the “hammer” when upheld instructions have been since before the knew how the stood however, century. Significantly, knew that turn of the innocence upholding does not cite knew.