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State v. O'Leary

Court of Appeals of Missouri, Southern District, First Division

April 16, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
MATTHEW SCOTT O'LEARY, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY Honorable Alan M. Blankenship.

          OPINION

          DON E. BURRELL, P.J.

         In a 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[1]) 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[2] by the trial court's questioning." Finding no merit in that claim, we affirm.

         Defendant 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 One?
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 Count One?
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.

         Defendant 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.

         The 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."[3]

         Defendant 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 ...


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