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State v. Miller

Court of Appeals of Missouri, Southern District, Second Division

October 23, 2017

STATE OF MISSOURI, Respondent,
v.
VERNON EARL MILLER, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY Honorable John D. Wiggins, Judge

          DANIEL E. SCOTT, J.

         Vernon Miller ("Defendant") appeals from his convictions for forcible rape, statutory sodomy, and statutory rape of his girlfriend's children. He complains of the court's actions in accepting the verdicts (Points 1 & 2) and in sending exhibits to the jury during deliberations (Point 3). We affirm.

         Points 1 & 2[1]

         After deliberating some six and one-half hours, the jury sent the court a note stating that it had reached two verdicts, but was at an impasse on the third charge. The court brought the jury in and inquired of the foreperson, who opined that the impasse was worthy of continued deliberation. The court read and accepted the verdicts reached (Counts II & III, both guilty), then adjourned for the evening so jurors could continue Count I deliberations the next morning.

         The next day, before deliberations resumed, Defendant moved for a mistrial on unresolved Count I only, but expressly not on the other two counts where verdicts had been reached and accepted. The court denied the mistrial request. Jurors resumed deliberations and reached a guilty verdict on Count I about 80 minutes later. The jury was polled and the verdicts were unanimous on all three counts.

         Point 1 challenges the trial court's "early" acceptance of the Count II & III verdicts. Defendant included this issue in his motion for new trial, but did not object or complain about it during the trial.[2]

         "Including a claim of error in a motion for new trial is a requirement of preserving an issue for review, but a claim of error is not wholly preserved absent a timely objection at trial." State v. Walter, 479 S.W.3d 118, 123 (Mo. banc 2016); see also Romines v. Donald Maggi, Inc., 636 S.W.2d 130, 131-32 (Mo.App. 1982) (complaints about receipt or entry of verdict are waived if not raised until new trial motion).

         That leaves only discretionary plain-error review, Walter, 479 S.W.3d at 124, which we decline to undertake. We find it difficult, at least in this case, to square Defendant's insistence that he has raised an issue of first impression with the trial court's action being "evident, obvious, and clear" error and thus plain error. See State v. Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017). Point denied.

         Point 2 challenges the denial of Defendant's mistrial request, and alleges as prejudice that the court "effectively coerced" the Count I verdict by directing jurors to continue those deliberations after the other verdicts had been accepted.

         We review the refusal to grant a mistrial for abuse of discretion, reversing only if that ruling was so clearly illogical, arbitrary, unreasonable, and ill-considered as to shock the sense of justice. See State v. Norris, 237 S.W.3d 640, 644 (Mo.App. 2007). Mistrial is a drastic remedy used only in the most extraordinary circumstances when grievous error cannot otherwise be remedied. Id.

         Point 2's argument focuses on prejudice by presuming success on Point 1's claim of error. Point 1's failure thus dooms this point as well, as Defendant fails to convince us of any error, much less grievous error in extraordinary circumstances demanding the drastic remedy of mistrial. Id. Further, since Defendant never raised his Point 1 complaint below, the trial court could not have abused its discretion in failing to consider that in denying a mistrial.

         Even if we found error, which we do not, Defendant did not make his coerced-verdict case for prejudice. "A verdict can only be considered coerced when it appears, under the totality of the circumstances, that the trial court was virtually mandating that a verdict be reached, and by implication, it would hold the jury until such occurrence." State v. Evans, 122 S.W.3d 731, 734 (Mo.App. 2003). As in Evans, "[t]he judge's actions here do not, by any reasonable view, amount to a virtual mandate that a verdict be reached." Id. Point 2 fails.

         Poin ...


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