A jury fоund Defendant guilty of second degree burglary (Count I) and stealing (Count II), both class C felonies. As a prior offender, he was sentencеd by the court to concurrent three year terms of imprisonment. On appeal, Defendant contends the trial court errеd by giving (1) the so-called “hammer” instruction (MAI-CR 3d 312.10) and (2) the instruction defining “reasonable doubt” (MAI-CR 3d 302.04). We affirm.
Since Defendant does not challengе the sufficiency of the evidence, only a brief summary thereof is necessary for disposition of this appeal. During the eаrly morning hours of November 1, 1990, Defendant, his brother, and Norman Millard went to Verona, Missouri, where the business building of Wade Truck Lines, Inc., was loсated. The trio broke into that building and stole nine tires and three air impact wrenches with a value in excess of $150. Defendant рresented an alibi defense which was disbelieved by the jury.
Defendant’s first point claims the trial court erred and abused its discretion in giving thе hammer instruction because the instruction coerced the jury into finding Defendant guilty.
Relevant to this point, the record reveals that jury deliberations commenced at 7:18 p.m. after a day-long trial. The trial judge called the jury into the courtroom at 9:37 p.m. and asked for its most recent vote. The foreman announced that three votes had been taken and on each vote the jury stood 9-3 (without stating the position of the majority). At 9:40 p.m. the trial judge gave Instruction No. 16 (MAI-CR 3d 312.-10).
At 9:50 p.m. the jury returned three guilty verdicts for secоnd degree burglary, the lesser included offense of trespass, and stealing. The trial court found the verdicts to be conflicting and returned the jury to the jury room for further deliberations. At 10:05 p.m. the jury returned guilty verdicts for second degree burglary and for stealing. After polling the jury, the trial court accepted both verdicts.
Defendant claims these verdicts were coerced because thе jury had been deadlocked at 9-3 on three separate votes, and ten minutes after receiving Instruction No. 16 simply returned еvery guilty verdict form available to it.
The length of time a jury is allowed to deliberate and the decision whether to give MAI-CR 3d 312.10 are within thе discretion of the trial court. State v. Parson,
The fact that a jury returns a verdict shortly after the court gives the hammer instruction does not establish coercion. Parson,
Defendant believes coercion resulted in this case because сonflicting guilty verdicts were returned ten minutes after being “hammered.” The fact that the jury deliberated only ten minutes is no indication their vеrdict was coerced. Numerous cases with similar lengths of jury deliberation have so held. Harris,
Defendant misplaces his reliance on State v. Sanders,
Defendant recognizes the limitation placed on Sanders by Broadux, but urges the instant case has additional evidence of coеrcion pointing to the conflicting verdicts received after the hammer instruction. Defendant claims this fact illustrates the jury failed to deliberate sufficiently to even realize that three guilty verdicts were improper under the instructions. Nothing in Sanders supports that рroposition, nor does Defendant cite other supporting authority. In State v. Peck,
We find the conflicting verdicts are not an indication of a coerced verdict. Fifteen minutes after the jury resumed deliberations, verdicts of guilty were returned omitting the earlier guilty verdict on trespass. Obviously, the jury simply reread Instruction No. 10.
Defendant further asserts the trial court failed to follow the Notes on Use 3, MAI-CR 3d 312.10 because Dеfendant’s attorney was not allowed to object on the record to the hammer instruction outside the presence оf the jury. Defendant did not raise this point in his motion for new trial. Therefore, the issue is not preserved for appellate reviеw. State v. Watts, 813
The circumstances of this case fail to demonstrate any abuse of discretion by the trial court in giving Instruction No. 16. This assignment of еrror has no merit.
Defendant’s remaining point is that the trial court erred in giving Instruction No. 4, based on MAI-CR 3d 302.04, because the instruction erronеously defined “reasonable doubt.” In State v. Blankenship, 830 5.W.2d 1, 13 (Mo. banc 1992), the Court rejected the same contention and said that the instruction has been repeatedly upheld. Point denied.
The judgment is affirmed.
Notes
. Instruction No. 16 reads:
You should make every reasonable effort to reach a verdict, as it is desirablе that there be a verdict in every case. Each of you should respect the opinions of your fellow jurors as you would hаve them respect yours, and in a spirit of tolerance and understanding endeav- or to bring the deliberations of the whole jury to an agreement upon a verdict. Do not be afraid to change your opinion if the discussion persuades you that you shоuld. But a juror should not agree to a verdict that violates the instructions of the Court, nor should a juror agree to a verdict of guilty unless he is convinced of the defendant’s guilt beyond a reasonable doubt.
. The first paragraph of Instruction No. 10 reads:
As to Count I, if you do not find the defendant guilty of burglary in the second degree as submitted in Instruction No. 9, you must consider whether he is guilty of trespass in the first degree under this instruction.