Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R.
Holden, Circuit Judge.
STEFFEN RAHMEYER, J.
found Dustin M. Hicks ("Defendant") guilty of three
crimes: attempted rape in the first degree, assault in the
second degree, and armed criminal action. All three crimes
arose out of Defendant's conduct during an arranged
meeting with a prostitute. The trial court sentenced
Defendant as a prior and persistent offender to imprisonment
for ten years for attempted rape, twelve years for assault
and three years for armed criminal action with the ten and
twelve-year sentences to run consecutive to one another and
the three-year sentence to run concurrently with the other
sentences. Defendant appeals raising two points of asserted
trial court error: (1) the trial court abused its discretion
in denying Defendant's motion for mistrial based on the
jury's knowledge that the jury would have been permitted
to ask witnesses questions but for defense counsel's
objection to that procedure, and (2) the trial court plainly
erred in not declaring a mistrial sua sponte when a
question from the jury indicated the jury's deliberations
had become contentious following a poll of the jury in which
a juror stated guilty verdicts returned by the jury were not
the juror's verdicts. We reject Defendant's points,
and affirm the trial court's judgment.
"A mistrial is a drastic remedy to be exercised only in
those extraordinary circumstances in which the prejudice to
the defendant cannot otherwise be removed." State v.
Harris, 477 S.W.3d 131, 138 (Mo.App.E.D.2015). We review
the refusal to grant a mistrial for abuse of discretion
because the trial court, unlike a reviewing court, "has
observed the complained of incident and is in a better
position . . . to determine what prejudicial effect, if any,
the alleged error had on the jury." State v.
McClendon, 477 S.W.3d 206, 215 (Mo.App.W.D.2015).
"An abuse of discretion is found when the trial
court's ruling is clearly against the logic of the
circumstances then before it and when the ruling is so
arbitrary and unreasonable as to shock one's sense of
justice and indicate a lack of careful consideration."
State v. Roberson, No. WD 78191, 2016 WL 3960989, at
*4 (Mo.App. W.D. July 19, 2016). "[P]lain errors
affecting substantial rights may be considered in the
discretion of the [appellate] court when the court finds that
manifest injustice or miscarriage of justice has resulted
therefrom." Rule 30.20.
I - Denial of Request for Mistrial Based on Trial Court's
Conduct Relating to Juror Questions
first point, Defendant argues that "[t]he trial court
abused its discretion in denying [Defendant's] motion for
mistrial" because (1) the jury "would hold it
against" Defendant that the jury would not be permitted
to ask questions during the trial because defense counsel
objected to questions by jurors, and (2) the trial
court's "procedure . . ., as well as . . . comments
. . . before and after the request for the mistrial, were of
such a nature as would reasonably tend to prejudice the minds
of the jury against" Defendant. Immediately after the
jury was sworn at Defendant's trial, the following
[THE COURT:] Now, I'm going to read the instructions, but
part of the second instruction is not in your notebooks. The
first one is not in there at all. What we call Instruction
No. 1 is in there except for the last part. And here's
why it's not in there yet. I've been doing this for
about 18 years. Right after I went on the bench, I went to
the National Judicial College for three weeks and learned
about judging and what other states do. I did not know in all
my years of practice, because I hadn't paid attention to
other states, that about half the states in the United States
do things like let you take notes, let you ask questions of
the witnesses, which was a novel concept for Missouri. So
when I came back, I started letting jurors in civil cases ask
questions. And then I was on the civil jury study committee
that actually formulated the instruction for them. I've
been hesitant to ever do it in criminal cases because people
tell me it might get reversed. I don't think we are, but
I've decided it's time to let you guys ask questions,
and there's an instruction in here that tells you how you
get to do that.
[DEFENSE COUNSEL]: Judge, I think we need to approach.
THE COURT: No, you don't. I'll read the instruction;
then you can approach. You should have brought this up before
they came up.
[DEFENSE COUNSEL]: It wasn't brought to my attention that
this was going to happen today, Judge.
THE COURT: Okay. We'll be back.
point, counsel approached the bench out of the hearing of the
jury. The trial court explained to defense counsel that the
trial court believed it had given defense counsel's
office notice of its intention to permit jurors to ask
questions in criminal cases, and also recently had mentioned
its intention in the courtroom. Defense counsel told the
trial court that defense counsel had not received notice from
her office of the trial court's intention to permit juror
questions, and did not hear the trial court announce its
intention in the courtroom. The trial court then returned the
trial to the hearing of the jury, and took a short recess.
the recess and before the jury returned to the courtroom,
defense counsel requested a mistrial because the jury
"will hold it against us that we're not letting any
questions be asked in this case." Following a discussion
between the trial court and defense counsel with respect to
the trial court's intended procedure for juror questions
in future criminal cases, the trial court stated that it
would not permit juror questions in Defendant's case. The
following exchange then occurred:
THE COURT: Anything else before I bring the jury? Oh, I'm
overruling your motion for mistrial.
[DEFENSE COUNSEL]: But you are granting my request for a
THE COURT: I'm going to tell them.
[DEFENSE COUNSEL]: Okay.
the jury returned to the courtroom, the trial court
instructed the jury: "Please be seated. Okay. You are
not going to be allowed to ask questions of witnesses. The
next trial we will, but not this one." Defense counsel
did not object to the trial court's instruction to the
trial court then read to the jury initial jury instructions
for the trial. These instructions included the following
It is the court's duty to enforce [established rules for
those who participate in a jury trial] and to instruct you
upon the law applicable to the case. It is your duty to
follow the law as the court gives it to you.
However, no statement, ruling, or remark that I may make
during the trial is intended to indicate my opinion of what
the facts are. It is your duty to determine the facts and to
determine them only from the evidence and the ...