Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF BARRY COUNTY Honorable Alan M.
single point on appeal, Matthew Scott O'Leary
("Defendant") claims the trial court "erred or
plainly erred" in accepting the verdicts finding him
guilty "on both counts" (respectively, the
lesser-included offenses of second-degree rape and
second-degree sodomy) because when the jury was polled, one
juror's ("Juror 30") response of "I did
agree" indicated either that she had changed her mind or
was "coerced into accepting the verdict by the trial
court's questioning." Finding no merit in that
claim, we affirm.
was charged with rape in the first degree ("Count
One") and sodomy in the first degree ("Count
Two"). The jury was instructed on those charges as well
as the lesser-included offenses of rape and sodomy in the
second degree. After deliberating, the jury found Defendant
guilty of the lesser-included offenses. After the verdicts
were read, Defendant asked the trial court to poll the jury,
and the following exchange occurred:
BY THE COURT: [Juror 30], is this your verdict as to Count
JUROR 30: My heart is beating too fast. I am confused. I
still have some questions, because I felt like there
wasn't enough questions given to [Victim], [Victim], as
to - we had talked about it, the Jury talked about it.
BY THE COURT: Is this the verdict that you have agreed to, to
JUROR 30: I did agree.
BY THE COURT: Okay. And is this your verdict that you agreed
to to Count Two?
JUROR 30: I did.
did not voice any complaint about the sufficiency or clarity
of the responses given by Juror 30. After the trial court
finished polling the jury, it accepted the verdicts and
proceeded to the sentencing phase of the trial. After the
sentencing phase was completed, and the jury was deliberating
upon its recommended sentences, Defendant objected to the
trial court's earlier handling of the jury polling.
Specifically, Defendant's complaint was,
Judge, I'm aware this might be late, but when the Court
was polling the Jury following their verdict in phase one,
the guilt phase, Juror 30 had made some statements about what
she thought of the verdict. I guess I'm going to object
to the Court moving forward with the verdict rather than
ordering the Jury to return to deliberate.
trial court overruled the objection, noting "that
basically she was asked, after she made such a significant
statement, did you - is this the verdict you agreed to, and
she acknowledged in each instance, with both counts, that
yes, it is. Then she held by her verdict."
first argues that the trial court did not protect his right
to a unanimous verdict and "[t]his Court should find
that Juror 30 did not indicate that Juror 30 concurred with
the verdict at the time the [trial] court accepted it. It is
clear that Juror 30 ...