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State v. Calahan

Court of Appeals of Missouri, Southern District, Second Division

December 10, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
JOHN ANDREW CALAHAN, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF WAYNE COUNTY Honorable Kelly Parker

          DON E. BURRELL, J.

         AFFIRMED

         John Andrew Calahan ("Defendant") appeals his convictions, after a jury trial, of assault in the second degree (see section 565.052) and armed criminal action (see section 571.015).[1] Defendant's sole point on appeal claims the trial court plainly erred in overruling Defendant's motion for a mistrial when the jury initially returned ambiguous verdicts because the remedies applied by the trial court were "insufficient to repair the damage" to Defendant's due process right to a fair trial. We decline plain-error review and affirm.

         Standard of Review

         Although Defendant's request for a mistrial was timely made to the trial court, he failed to include the denial of that request in his motion for new trial. Thus, Defendant rightly concedes that his claim is reviewable only for plain error under Rule 30.20.[2] Such errors are "plain errors affecting substantial rights [and] may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. Such review is used sparingly. State v. White, 92 S.W.3d 183, 189 (Mo. App. W.D. 2002). Plain error is error that is "evident, obvious and clear[.]" State v. Bailey, 839 S.W.2d 657, 661 (Mo. App. W.D. 1992).

         Facts and Procedural Background

         After deliberation, the jury foreperson gave the jury's written verdict forms to the bailiff, who handed them to the trial court. The trial court said, "There is a signed verdict for [Count 1] but there is not a signed verdict for [Count 2]. I am going to return the packet to the jury and have the jury retire to deliberate as to [Count 2] and provide a verdict[.]" The foreperson responded, "We did we just didn't get it signed" and "it was unanimous." She then signed the Count 2 verdict in open court.

         The trial court then stated that there were "two inconsistent verdicts" as to Count 1 and "no verdict" as to Count 2 and announced that it would return the packet to the jury. The trial court then read and responded to the verdicts as follows.

As to [Count 1], we, the jury, find [Defendant] guilty of assault in the fourth degree, as submitted in instruction number 7. Is that the unanimous verdict of this jury? I see the jurors nodding in the affirmative. As to [Count 2], we, the jury, find [Defendant] not guilty. Is that the unanimous verdict of this jury?

         Some (unidentified) jurors then said, "NO, NO." The trial court responded by sending the instructions and forms back and instructing the jury "to look at the instructions and the permissible verdicts available" for Count 2 and to "retire to continue your deliberations." Defendant voiced no objection to this procedure.

         When the jury returned to the courtroom, the foreperson announced, "We have two unanimous verdicts[.]" The trial court read the verdicts aloud, which now indicated that Defendant was found guilty of assault in the second degree on Count 1. The trial court then stated, "But the one for assault in the fourth degree is stricken through . . . and written void" and "the not guilty as to [Count 1] is stricken through . . . and written void and not guilty as to [Count 2] is stricken through . . . and is written as void." The trial court then polled the jury. Each juror responded by saying that he or she found Defendant guilty of assault in the second degree and armed criminal action.

         The following exchange then took place.

THE COURT: OKAY MS. THOMPSON [(the jury foreperson)] I DO WANT TO INQUIRE OF YOU. IS IT YOUR STATEMENT THAT WHEN YOU FIRST CAME OUT THE VERDICT FORM WAS GUILTY AS TO [COUNT 1] BUT AS ...

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