STATE of Missouri, Respondent, v. John Wayne COPPLE, Appellant.
No. WD 58110
Missouri Court of Appeals, Western District.
March 6, 2001.
As Modified May 24, 2001. Motion for Rehearing and/or Transfer to Supreme Court Denied May 29, 2001. Application for Transfer Denied Aug. 21, 2001.
RONALD R. HOLLIGER, Presiding Judge.
A trial court cannot be faulted for failing to take corrective action that it was not asked to take; a party‘s failing to object at trial results in no issue being preserved for appellate review. Norris v. Barnes, 957 S.W.2d 524, 527 (Mo.App. 1997). The University‘s only objection to the verdict director prior to its submission to the jury was that there was no evidence to support Daniels’ property interest theory for his due process claim. Specifically, the University‘s objection was:
That‘s the one I don‘t think should be submitted to the jury, because there was no evidence to suggest that any type of due process was required for them, since he was an administratоr and served at the pleasure of the school.
On appeal, the University argues that the instruction: (1) improperly mixed elements of Daniels’ due process property interest and liberty interest claim; (2) failed to require as part of a property interest claim that the jury must determine that Daniels was a permanent employee in his position as vice-president of acаdemic affairs; and (3) failed to require as part of a Daniels’ liberty interest claim that Lincoln University made untrue public statements regarding Daniels and that Daniels was unable to obtain employment because of the stigma attached because of such statements. The University did not specifically object to the verdict director at trial on any of these grounds presented on appeal. All of these objections are to the form of the instruction. The only objection made at trial was as to submissibility of the case. We have determined that a submissible case was made on the property interest theory for his due process claim. Not only did the University fail to adequately preserve its objection at trial prior to submission of the case to the jury, but the allegаtions in its motion for new trial are not the same as the objection made at the instruction conference. “Where an alleged error relating to an instruction differs from the objections made to the trial court, the error may not be reviewed on appeal.” McKersie v. Barnes Hosp., 912 S.W.2d 562, 567 (Mo. App.1995) (internal citations omitted). The University‘s other contentions of error with respect to the verdict director were nоt preserved for appeal. The point is denied.
The judgment is affirmed.
PATRICIA BRECKENRIDGE, Judge and JAMES M. SMART, Jr., Judge, concur.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
Before HOLLIGER, Presiding Judge, LOWENSTEIN, Judge, and NEWTON, Judge.
RONALD R. HOLLIGER, Presiding Judge.
Defendant John Wayne Copple was convicted of statutory rape1 by a jury in the Circuit Court of Caldwell County. He appeals the conviction, claiming the trial court erred: (1) in giving the jury the “hammer instruction“, MAI-CR3d 312.10, and (2) by misinterpreting, or misapрlying, the state of mind exception to the hearsay rule. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 22, 1999, 16-year old Kirsten and her sister were “cruising”2 with friends in Braymer, Missouri. When they stopped at the local car wash to talk, at approximately 11:00 P.M., Kirsten met and spoke with Copple. A short time later, they all ended up at the house of Chad Cope, and talked in his bedroom. Both Copple and Kirsten testified that everyone else left the room and the two remained in Chad‘s bedroom. Both Copple and Kirsten testified about the intimate events that next took place. Kirsten testified that she and Copple kissed for a while, that Copple then removed her clothing and his own clothing, that he took a condom from his pocket and put it on, and that they had sex. Copple, on the other hand, testified that they kissed and “оne thing led to another,” but “before anything could happen, her mom walked in on [them].”
Copple was charged, as a prior offender, with felony statutory rape in the second degree. Following a trial of the matter on November 15, 1999, the case was submitted to the jury. The jury returned a verdict of guilty. This appeal follows.
DISCUSSION
Copple claims the trial court abused its discretion (1) in giving Instruction No. 10,
Point I
In his first point, Copple claims that the court erred in giving the hammer instruction when it knew the deadlocked jury‘s numerical division and how the vote was split. He argues that the risk of coercion is particularly high when the jurors know that the judge is aware of how the vote is divided, and that the lone juror may well consider the instruction to reflect the judge‘s desire for a particular result.
It is well established in Missouri that the length of time a jury is allowed to deliberate and the decision whether to give the hammer instruction are within the discretion of the trial court. State v. Jackson, 896 S.W.2d 77, 80 (Mo.App.1995). To establish an abuse of discretion, the defendant must show, based on the record, that the jury‘s verdict was coerced. Id. Thе giving of the hammer instruction itself is not coercive, as “it urges frank and open discussion, tolerance, and the desirability of a unanimous verdict but cautions each juror against basing a verdict on evidence he does not believe is true.” Id. (quoting State v. Kinder, 858 S.W.2d 838, 840 (Mo. App.1993)). Thus, in determining whether a jury‘s verdict has been coerced by the giving of the hammer instruction, an appellate court considers several factors, including: (1) the amount of time the jury deliberates before the instruction is given, (2) the amount of time that elapses between the reading of the instruction and the verdict, (3) whether the trial court knows numerically how the jury is split and the position of the majority, and (4) whether the giving of the instruction conforms with the Notes on Use. Jackson, 896 S.W.2d at 80.
We initially consider the third factor because the other factors coincide and require muсh the same analysis. The third factor considers whether the trial court knows the numerical division of the jury and the position of the majority. From the jury‘s note, it is clear the trial court was aware of the numerical division of the jury and the position of the majority. No error arises from the judge knowing this information alone when the communication from the jury is unsolicited and voluntarily given to the court. State v. Broadux, 618 S.W.2d 649, 652 (Mo. banc 1981); State v. Rowling, 687 S.W.2d 246, 247 (Mo.App.1985); State v. Brockman, 634 S.W.2d 575, 577 (Mo.App.1982).
Next, we сonsider the amount of time the jury deliberates before the instruction is given and the amount of time that elapses between the reading of the instruction and the verdict. We also consider whether the giving of the instruction conforms with the Notes on Use. We find it important to mention first that Copple does not complain that the trial court‘s giving of the instruction did not conform with the Notes on Use. Our review of the record does not reveal whether the court conformed entirely. The Notes on Use read as follows:
- This is a revision of MAI-CR3d 312.10.
- This instruction may be given when the Court deems it appropriate and when the length of deliberation or communication from the jury causes the Court to believe that the jury may be deadlocked.
- Prior to the giving of this instruction, and outside the presence and hearing of the jury, the attorneys should be permitted to make any objections on the record to the giving of this instruction.
This instruction shall be numbered, and in addition to being read to the jury, shall be handed to the jury. Oral argument by the attorneys is not permitted. When returned by the jury, it shall be filed with the other instructions of the Court. - The Court should note in the record the time that the jury first retired to deliberate, the time of giving this instruction, and the time that the jury returns a vеrdict or a mistrial is declared.
Our review of the record reveals that the jury began its deliberations at 3:28 P.M. At 4:00 P.M., the court indicated its receipt of a note from the jury, signed by the foreman, which read, “The jury vote is 11 guilty and 1 not guilty. What do we do now? The not guilty is very firm.” The jury had deliberated only 32 minutes before the court received its note. The record is silent as to the time the hammer instruction was given, and the time the jury returned its verdict. When the court received the jury‘s note, it promptly indicated its intent to give the hammer instruction, and defense counsel objected. The objection was overruled, and the jury was returned to the courtroom and was given the instruction. Although the court did not record the exact time the instruction was given, it did record the time the jury‘s note was received, at 4:00 P.M. From this, it is reasonable for us to infer that the instruction was given shortly after 4:00 P.M. More importantly, however, we do not have the benefit of knowing how much time elapsed between the time the jury was provided the instruction and the time it returned its verdict. This fact is crucial. If the jury came back very quickly, it could be suggestive of the lone juror‘s acquiescence to the will of the majority and, therefore, a coercive suggestion of the court. On the other hand, if the jury further deliberated a considerable amount of time before returning a unanimous verdict, that may indicate that the jury followed the instruction and considered and deliberated upon each other‘s viewpoints.
After reviewing the jury‘s note, the court indicated to counsel that it intended to give the hammer instruction. Though not expressed on the record, the cоurt clearly deemed it appropriate to give the instruction. The judge asked whether there was any objection. Defense counsel objected on the basis that the instruction was intended “basically to hammer the last person into submission.” The objection was overruled. Counsel then suggested that the court, instead, question the foreman to determine whether further deliberations would be hеlpful. Counsel for the state objected and, after sustaining the state‘s objection, the court proceeded with reading the “hammer” instruction, numbered Instruction No. 10.
It is our belief that a trial court should carefully consider the possibility of alternatives other than the delivery of the hammer instruction immediately upon learning that the jury is deadlocked, when, as here, the jury has deliberated only a short time before the instruction is given. The jury‘s note did not indicate that they were hopelessly deadlocked, nor that the split was firm despite hours (or even one hour) of deliberation. There likely were other alternatives available to the trial court short of issuing the hammer instruction. The court might have first asked the jury if additional deliberations would be useful and then allowed such additional deliberations. Or the court might have simply directed the jury to “continue [its] deliberations.” State v. Leroy, 724 S.W.2d 277, 279 (Mo.App.1987).
Despite our concern about so quick a use of the hammer instruction, the standard for our review is whether the trial
Point II
In his second point, Copple claims the trial сourt erred in permitting Kirsten to testify, over his objection, that her mother told her what time she (the mother) and her sister arrived at Chad Cope‘s house. In a statement to the police the day after the incident, Kirsten reported that her friends, Chad, Jacqueline and Jessie, left the Cope house at 1:45 A.M., and that her sister and mother arrived there at 2:45 A.M. At trial, during cross-examination, Kirsten testified that her friends could not have left at 1:45 because her mother told her that she and her mother and sister arrived back home at “ten till 2:00.” Copple objected to Kirsten‘s testimony regarding what her mother told her about the time they arrived home on the basis that it was hearsay. Copple argues that such testimony was “an out-of-court statement for the truth of the matter asserted and was not admissible as an exсeption to Kirsten‘s state of mind.” The prosecutor claimed that the testimony was not offered to prove the truth of the time they arrived home, but simply whether the mother made such a statement to Kirsten. The trial court asked the prosecutor if it was attempting to determine the “state of mind of the witness,” to which the prosecutor replied, “yes.” (our emphasis). The trial court overruled Cоpple‘s objection and allowed Kirsten to answer. It is Copple‘s position that there is no such exception to the general rule excluding hearsay, and that in allowing it, the trial court “misinterpreted, or misapplied, the state of mind exception to the hearsay rule.” He claims that Kirsten‘s state of mind as to what time they arrived home is not relevant, and that its only “relevance” was to prove the truth of what time they arrived home. The state acknowledges that the trial court incorrectly ruled that Kirsten‘s statement fell within the state of mind exception to the hearsay rule,3 but contends that Copple has shown no prejudice as a result of that error because the mother was available to, and later did, testify to the same information.
The hearsay rule is designed to protect a party from out-of-court declarations of other persons who cannot be cross-examined as to the bases of their percеptions, the reliability of their observations, and the degree of their biases. State v. Brown, 833 S.W.2d 436, 438 (Mo. App.1992). Even if hearsay evidence is erroneously admitted, then reversal of the case will only be required if the appellant shows that he suffered undue prejudice as a result of the error. State v. Haddock, 24 S.W.3d 192, 195 (Mo.App.2000). We have not discerned from Copple‘s arguments any undue prejudice suffered by him as a result of the admission of Kirsten‘s testimony.
Generally, “statements of a declarant‘s present mental condition made out of court are excepted from the hearsay ban” and are admissible “in limited situations when they are relevant and the relevancy outweighs their prejudicial effect.” State v. Bell, 950 S.W.2d 482, 482, 483 (Mo. banc 1997). The hearsay declarations of a victim‘s state of mind are particularly relevant where the defendant has put the victim‘s mental stаte at issue by claiming accident, self-defense or suicide. State v. Shurn, 866 S.W.2d 447, 458 (Mo. banc 1993).
At issue here is the statement of a declarant who is neither the witness nor the victim. Again, the state acknowledges that the trial court incorrectly found that Kirsten‘s statement fell within the state of mind exception to the hearsay rule.
We agree with Copple that the state of mind exception does not apply to Kirsten‘s testimоny and, therefore, the testimony was hearsay and should not have been admitted. However, other than recognizing that the testimony was presented improperly by the state to rehabilitate Kirsten by minimizing inconsistencies in her prior statements, we are not persuaded that Copple suffered undue prejudice as a result of the admission of the testimony such that would require reversal.
The judgment of the trial court is affirmed.
MOTION FOR REHEARING
In conjunction with his Motion for Rehearing, Copple has filed a motion to supplement the record on appeal. In our original opinion we noted that the original record on appeal did not indicate either the time the instruction was given or the time the jury returned with its verdict. We could not, therefore, determine the elapsed time between the giving of the hammer instruction and the jury‘s verdict. Given that missing information, we could not fully consider whether the jury was coerced or the trial court abused its discretion to Copple‘s prejudice. Copple‘s motion to supplement indicates that in copy
We nevertheless find that Copple has not shown that the trial court abused its discretion or that the jury was coerced into finding him guilty because of the hammer instruction. Although significant, mere shortness of time between giving a hammer instruction and returning the verdict does not demonstrate a coercive effect. We observe that some 20 minutes expired between the jury‘s note and the giving of the instruction. We will not assume that the jury continued to discuss the case after the note. In addition, the record now reflects that the jury had the case under submission for approximately an hour and 12 minutes before rendering a verdict. In considering whether the jury was coerced, we have considered that Copple was charged with only one count. He did not deny being present with the viсtim at the time of the offense and in bed with her. She testified that they had intercourse. He testified that they were interrupted before the act was consummated. The central issue was consequently a resolution of the credibility of Copple and the victim. We cannot say that 20 minutes between giving the hammer instruction and returning a verdict was insufficient to resolve that issue and indicative of coеrcion. Although the trial court may have been too quick to utilize the hammer under the facts of this case, we do not find it abused its discretion or that Copple was prejudiced. The motion for rehearing is therefore denied.
HAROLD L. LOWENSTEIN,
Presiding Judge, and THOMAS H. NEWTON, Judge, concur.
STATE of Missouri, Respondent, v. John F. FRANCES, Jr. a/k/a John E. Frances, Jr. a/k/a John E. Francis, Jr., Appellant.
No. WD 57805.
Missouri Court of Appeals, Western District.
Submitted Dec. 14, 2000. Decided March 27, 2001.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 24, 2001. Application for Transfer Denied Aug. 21, 2001.