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State v. Adkison

Court of Appeals of Missouri, Western District, Fourth Division

April 25, 2017

STATE OF MISSOURI, Respondent,
v.
BRIAN JAMES ADKISON, Appellant.

         Appeal from the Circuit Court of Boone County, Missouri The Honorable Christine Carpenter, Judge

          Before: Mark D. Pfeiffer, Chief Judge, and Lisa White Hardwick and Gary D. Witt, Judges

          Mark D. Pfeiffer, Chief Judge

         Mr. Brian J. Adkison ("Adkison") appeals his conviction for forcible rape in the Circuit Court of Boone County, Missouri ("trial court"). Adkison does not challenge the sufficiency of the evidence supporting his conviction. Instead, on appeal, Adkison first argues that the trial court coerced a verdict in violation of his right to due process of law through its erroneous use of a "hammer instruction." Second, Adkison contends that the trial court violated his constitutional right to testify in his own defense at trial. We affirm.

         Factual and Procedural Background

         On November 22, 2013, Adkison was charged by indictment with one count of first-degree burglary, § 569.160, one count of forcible rape, § 566.030, and one count of deviate sexual assault, § 566.070.[1] These charges were the result of Adkison's unwelcome sexual contact with L.C., [2] his ex-girlfriend, in the early hours of May 4, 2013.

         Adkison's case first went to trial on January 7, 2015. At the conclusion of the first trial, a jury acquitted Adkison of burglary but could not reach a unanimous verdict as to the rape and deviate sexual assault counts; the trial court therefore declared a mistrial as to those counts and set a new trial date.

         Adkison's case again went to trial on July 17, 2015, regarding the forcible rape and deviate sexual assault counts only. After about five hours of jury deliberations, jurors told the court bailiff that they were unable to reach a verdict; the potential deadlock was later confirmed in a written statement from the jury. Adkison's attorney requested a second mistrial at this time, which was opposed by the State. The trial court denied Adkison's request for a mistrial and told the parties that it intended to give the jurors a "hammer instruction" pursuant to MAI-CR 312.10.[3] Adkison objected to the giving of a hammer instruction, which was overruled by the trial court.

         After being read the instruction, the jury continued to deliberate for roughly three more hours without reaching a decision. Around 10:45 p.m., the trial court presented three options to the jury: (1) staying and concluding deliberations if the jury believed they were close to arriving at a verdict and they wanted to stay to conclude their deliberations; or, (2) taking a recess for the evening and coming back in the morning to resume deliberations if the jury believed that doing so would be helpful in reaching a verdict; or, (3) if the jury felt like they were hopelessly deadlocked, they were invited to advise the trial court of their inability to reach a verdict. The jury ultimately agreed to take a recess and return the next morning.

         During their deliberations the next day, the jury expressed confusion as to whether their verdict needed to be unanimous on both charges. When presented with the jury's note communicating their confusion, Adkison's counsel requested that the jury not be given any further instructions. Adkison's counsel also argued against directing the jury's attention to a specific instruction which explained the unanimity requirements. After hearing argument and objections from both parties, the trial court advised the jurors to "[p]lease follow the instructions you have [already] been given." The jury returned a verdict at 11:05 a.m., finding Adkison guilty of forcible rape but acquitting him of deviate sexual assault. Adkison does not challenge the sufficiency of the evidence to support his conviction for forcible rape.

         The trial court sentenced Adkison to fifteen years' imprisonment on his forcible rape conviction. This appeal follows.

         I. Adkison's Claim of Error Relating to the "Hammer Instruction"

         In his first point on appeal, Adkison contends that the trial court erred in its decision to give a "hammer instruction" to the jury when the jury communicated that it was potentially deadlocked. Adkison argues that the instruction coerced a verdict in violation of his rights to due process of law, a fair trial, and an impartial jury. We disagree.

         Standard of Review

         "The length of time that a jury is allowed to deliberate and the decision whether to give the hammer instruction are matters within the trial court's discretion." State v. Hutson, 487 S.W.3d 100, 112 (Mo. App. W.D. 2016). "An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Canaday, 476 S.W.3d 346, 349 (Mo. App. W.D. 2015) (internal quotation omitted). "To demonstrate an abuse of discretion, the appellant must show from the record that the jury's verdict was coerced." Hutson, 487 S.W.3d at 112 (internal quotation omitted). "The verdict is only considered coerced when under the totality of the circumstances it appears that the trial court was virtually directing that a verdict be reached and by implication indicated that it would hold the jury until a verdict was reached." Id. (internal quotation omitted). "In the absence of any facts that any juror capitulated to a verdict in which [he or she] did not believe, there was no error." State v. Evans, 122 S.W.3d 731, 734 (Mo. App. S.D. 2003) (internal quotation omitted).

         Analysis

         The giving of a hammer instruction alone is not coercive under Missouri law. Hutson, 487 S.W.3d at 112. "Knowing that the jury is deadlocked does not preclude the trial court from reading the hammer instruction and requiring the jury to continue deliberations." Smith v. State, 276 S.W.3d 314, 319 (Mo. App. E.D. 2008). To determine whether a hammer instruction was used in a coercive manner, we consider 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 [Missouri ...

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