Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF CRAWFORD COUNTY Honorable John D.
E. SCOTT, J.
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.
1 & 2
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.
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.
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.
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).
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.
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
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.
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.
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.