Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF WAYNE COUNTY Honorable Kelly Parker
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). 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
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. 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).
and Procedural Background
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
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?
(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
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.
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 ...