hammer instruction in Missouri

2010“The trial court has discretion in deciding whether or not to give the hammer instruction and the court abuses that discretion only if the instruction coerces the jury’s verdict.” State v. Johnson, 948 S.W.2d 161, 164 (Mo.App.

2008The Trial Court’s Failure to Give a “Hammer” Instruction Fassero contends that, because the jury was numerically close to a verdict (ten voting “not guilty”, two voting “guilty”), the trial court should have given the jury the “hammer” instruction, MAI-Cr3d 312.10, before declaring a mistrial. 2 A trial court may give the hammer instruction when it “deems it appropriate and when the length of deliberation or communication from the jury causes the Court to believe that the jury may be deadlocked.” MAI-CR3d 312.10, Notes on Use 2; See also State v. Johnson, 948 S.W.2d 161, 164 (Mo.App.1997); Gou

1993Generally, “[b]eing told by a juror that further deliberations would not be helpful in resolving a deadlock does not preclude the trial judge from reading the hammer instruction and certainly does not prevent the trial judge from attempting to facilitate a verdict by giving no additional instruction and allowing further time for deliberation.” Anderson, 698 S.W.2d at 853 (citations omitted).

1990“Being told by a juror that further deliberation would not be helpful in resolving a deadlock does not preclude the trial judge from reading the hammer instruction, and certainly does not prevent the trial judge from attempting to facilitate a verdict by giving no additional instruction and allowing further time for deliberation.” Id.

2018See Carriker , 342 S.W.3d at 427 (deliberated for three hours before the hammer instruction); Dodd , 10 S.W.3d at 553 (deliberated for two hours and forty-seven minutes before the hammer instruction); State v. Smith , 686 S.W.2d 43 , 45 (Mo. App. S.D. 1985) (deliberated for two hours and thirty-eight minutes before the hammer instruction); Jackson , 896 S.W.2d at 80 (deliberated for two hours and thirty minutes before the hammer instruction).

2018See, e.g. , State v. Carriker , 342 S.W.3d 425 , 427 (Mo. App. E.D. 2011) (deliberated for three hours before the hammer instruction); State v. Dodd , 10 S.W.3d 546 , 553 (Mo. App. W.D. 1999) (deliberated for two hours and forty-seven minutes before instruction); State v. Jackson , 896 S.W.2d 77 , 80 (Mo. App. W.D. 1995) (deliberated for two-and-a-half hours before instruction).

1997In State v. Starks, 820 S.W.2d 527, 529 (Mo.App.1991), we recognized a trial court should offer the attorneys an opportunity to make any objection on the record before it gives the hammer instruction.

1995In determining whether the jury’s verdict was coerced, appellate courts consider several factors including: “the amount of time that the jury deliberates before the hammer instruction is read, the amount of time that elapses between the reading of the hammer instruction and the verdict, whether the trial judge knows numerically how the jury is split and the position of the majority, and whether the giving of the instruction conforms with the Notes on Use.” State v. Starks, 820 S.W.2d 527, 529 (Mo.App.1991).

2018See Smith , 686 S.W.2d at 45 (verdict thirty minutes after the hammer instruction); State v. Williams , 654 S.W.2d 292 , 294 (Mo. App. S.D. 1983) (verdict twenty-three minutes after the hammer instruction); State v. Harris , 751 S.W.2d 131 , 132 (Mo. App. E.D. 1988) (verdict twenty minutes after the hammer instruction); Kinder , 858 S.W.2d at 840 (verdict ten minutes after the hammer instruction).

2011“The giving of the hammer instruction itself is not coercive, as % urges frank and open discussion, tolerance, and the desirability of a unanimous verdict but cautions each juror against basing a verdict on evidence he does not believe is true.’ ” Copple, 51 S.W.3d at 14 (quoting Kinder, 858 S.W.2d at 840 ).

2018The giving of the hammer instruction, in one form or another, has been upheld in Missouri since 1896, see Broadux , 618 S.W.2d at 651 n.3, and our courts have repeatedly held that the hammer instruction *166 itself is not coercive.

2003See Id. at 86-87 (holding that verdict reached by jurors after more than eight hours of deliberation, after twice informing the court that they were deadlocked, and after being given the hammer instruction, was set aside as a product of coercion); State v. Broadux, 618 S.W.2d 649 (Mo.banc 1981) (finding that trial court did not abuse its discretion by reading the hammer instruction).

2018Here, the jury deliberated for one hour and thirty-three minutes after the trial court gave the hammer instruction before reaching a verdict. "[I]f the jury further deliberated a considerable amount of time [after receiving the instruction but] before returning a unanimous verdict, that may indicate that the jury followed the instruction and considered and deliberated upon each other's viewpoints." State v. Copple , 51 S.W.3d 11 , 15 (Mo. App. W.D. 2001).

2011“The giving of the hammer instruction itself is not coercive, as % urges frank and open discussion, tolerance, and the desirability of a unanimous verdict but cautions each juror against basing a verdict on evidence he does not believe is true.’ ” Copple, 51 S.W.3d at 14 (quoting Kinder, 858 S.W.2d at 840 ).

2003See Id. at 86-87 (holding that verdict reached by jurors after more than eight hours of deliberation, after twice informing the court that they were deadlocked, and after being given the hammer instruction, was set aside as a product of coercion); State v. Broadux, 618 S.W.2d 649 (Mo.banc 1981) (finding that trial court did not abuse its discretion by reading the hammer instruction).

1997In Bums, we found the hammer instruction “may be im-permissibly coercive if it appears, that under the circumstances, the trial court was virtually directing that a verdict be reached.” Id. at 3 (quoting State v. McNail, 767 S.W.2d 84, 86 (Mo.App.1989)). (emphasis added).

2018"The length of time a jury is allowed to deliberate and the decision whether to give the hammer instruction are within the discretion of the trial court." State v. Dodd , 10 S.W.3d 546 , 553 (Mo. App. W.D. 1999).

2018See, e.g. , State v. Carriker , 342 S.W.3d 425 , 427 (Mo. App. E.D. 2011) (deliberated for three hours before the hammer instruction); State v. Dodd , 10 S.W.3d 546 , 553 (Mo. App. W.D. 1999) (deliberated for two hours and forty-seven minutes before instruction); State v. Jackson , 896 S.W.2d 77 , 80 (Mo. App. W.D. 1995) (deliberated for two-and-a-half hours before instruction).

2018A trial court may give the hammer instruction when "either the length of deliberation or communication from the jury causes the trial court to believe that the jury is deadlocked." Carriker , 342 S.W.3d at 426 (citing State v. Fassero , 256 S.W.3d 109 , 116 (Mo. banc 2008) ).

2018See, e.g. , State v. Carriker , 342 S.W.3d 425 , 427 (Mo. App. E.D. 2011) (deliberated for three hours before the hammer instruction); State v. Dodd , 10 S.W.3d 546 , 553 (Mo. App. W.D. 1999) (deliberated for two hours and forty-seven minutes before instruction); State v. Jackson , 896 S.W.2d 77 , 80 (Mo. App. W.D. 1995) (deliberated for two-and-a-half hours before instruction).

2018Hence, this court, like the circuit court, is bound by it as surely as it is bound by Supreme Court cases and rules." Id. at 467-68 (internal quotation marks omitted). 3 The use of the hammer instruction did not coerce the jury's verdict, and the trial court did not abuse its discretion in giving the instruction.

2017The trial court has discretion over “[t]he length of time that a jury is allowed to deliberate[,]” State v. Williams, 409 S.W.3d 460, 466 (Mo. App. W.D. 2013), and “the decision to use the hammer instruction lies within the discretion of the trial judge.” State v. Fassero, 256 S.W.3d 109, 116 (Mo. banc 2008).

2017The prosecutor and defense counsel stipulated that Instruction No. 11 was "consistent with MAI-CR 312.10.” The instruction set forth in MAI-CR 3d 312.10 is "commonly called the hammer instruction.” State v. Bumrns, 808 S.W.2d 1, 5 (Mo. App. E.D. 1991). .

2005A trial court may give the hammer instruction when it " 'deems it appropriate and when the length of deliberation or communication from the jury causes the Court to believe that the jury may be deadlocked.’ ” State v. Johnson, 948 S.W.2d 161, 164 (Mo.App.1997) (quoting MAI-CR3d 312.10, Notes on Use 2). ‘TT]he giving of a hammer instruction, standing alone, is generally viewed as non-coercive because it promotes open discussion, tolerance, and the desirability of a unanimous verdict while admonishing each juror against basing a verdict on evidence he or she does not believe.” State v. Evans, 12

2018A trial court may give the hammer instruction when "either the length of deliberation or communication from the jury causes the trial court to believe that the jury is deadlocked." Carriker , 342 S.W.3d at 426 (citing State v. Fassero , 256 S.W.3d 109 , 116 (Mo. banc 2008) ).

2017The trial court has discretion over “[t]he length of time that a jury is allowed to deliberate[,]” State v. Williams, 409 S.W.3d 460, 466 (Mo. App. W.D. 2013), and “the decision to use the hammer instruction lies within the discretion of the trial judge.” State v. Fassero, 256 S.W.3d 109, 116 (Mo. banc 2008).

2018See Carriker , 342 S.W.3d at 427 (deliberated for three hours before the hammer instruction); Dodd , 10 S.W.3d at 553 (deliberated for two hours and forty-seven minutes before the hammer instruction); State v. Smith , 686 S.W.2d 43 , 45 (Mo. App. S.D. 1985) (deliberated for two hours and thirty-eight minutes before the hammer instruction); Jackson , 896 S.W.2d at 80 (deliberated for two hours and thirty minutes before the hammer instruction).

2018See Smith , 686 S.W.2d at 45 (verdict thirty minutes after the hammer instruction); State v. Williams , 654 S.W.2d 292 , 294 (Mo. App. S.D. 1983) (verdict twenty-three minutes after the hammer instruction); State v. Harris , 751 S.W.2d 131 , 132 (Mo. App. E.D. 1988) (verdict twenty minutes after the hammer instruction); Kinder , 858 S.W.2d at 840 (verdict ten minutes after the hammer instruction).

1991The court pointed out that it would be error for the trial court to declare mistrial if such a decision was hastily made.); State v. Broadux, 618 S.W.2d 649, 652-653 (Mo. banc 1981) (no abuse of discretion to read the hammer instruction “after receiving voluntary, unsolicited information that eleven jurors favored a verdict of robbery in the first degree and one favored stealing from the person.” It overruled State v. Sanders, 552 S.W.2d 39 (Mo.App.1977) and disapproved of State v. Johnson, 610 S.W.2d 101 (Mo.App.1980) and State v. Holt, 592 S.W.2d 759 (Mo. banc 1980) to the extent that they h

1987See State v. Newman, 651 S.W.2d 185, 187 (Mo.App.1983); State v. Gardner, 600 S.W.2d 614, 623-624 (Mo.App.1980), cert. denied 449 U.S. 1020 , 101 S.Ct. 585 , 66 L.Ed.2d 481 (1980).

1991The court pointed out that it would be error for the trial court to declare mistrial if such a decision was hastily made.); State v. Broadux, 618 S.W.2d 649, 652-653 (Mo. banc 1981) (no abuse of discretion to read the hammer instruction “after receiving voluntary, unsolicited information that eleven jurors favored a verdict of robbery in the first degree and one favored stealing from the person.” It overruled State v. Sanders, 552 S.W.2d 39 (Mo.App.1977) and disapproved of State v. Johnson, 610 S.W.2d 101 (Mo.App.1980) and State v. Holt, 592 S.W.2d 759 (Mo. banc 1980) to the extent that they h

1987See State v. Newman, 651 S.W.2d 185, 187 (Mo.App.1983); State v. Gardner, 600 S.W.2d 614, 623-624 (Mo.App.1980), cert. denied 449 U.S. 1020 , 101 S.Ct. 585 , 66 L.Ed.2d 481 (1980).

2018See Smith , 686 S.W.2d at 45 (verdict thirty minutes after the hammer instruction); State v. Williams , 654 S.W.2d 292 , 294 (Mo. App. S.D. 1983) (verdict twenty-three minutes after the hammer instruction); State v. Harris , 751 S.W.2d 131 , 132 (Mo. App. E.D. 1988) (verdict twenty minutes after the hammer instruction); Kinder , 858 S.W.2d at 840 (verdict ten minutes after the hammer instruction).

1991The court pointed out that it would be error for the trial court to declare mistrial if such a decision was hastily made.); State v. Broadux, 618 S.W.2d 649, 652-653 (Mo. banc 1981) (no abuse of discretion to read the hammer instruction “after receiving voluntary, unsolicited information that eleven jurors favored a verdict of robbery in the first degree and one favored stealing from the person.” It overruled State v. Sanders, 552 S.W.2d 39 (Mo.App.1977) and disapproved of State v. Johnson, 610 S.W.2d 101 (Mo.App.1980) and State v. Holt, 592 S.W.2d 759 (Mo. banc 1980) to the extent that they h

2018Point Two-No Abuse of Discretion in Giving the Hammer Instruction A. Standard of Review "The length of time that a jury is allowed to deliberate and the decision whether to give the hammer instruction are matters within the trial court's discretion." *292 State v. Adkison , 517 S.W.3d 645 , 649 (Mo. App. W.D. 2017) (quoting State v. Hutson , 487 S.W.3d 100 , 112 (Mo. App. W.D. 2016).

2018"The giving of a hammer instruction alone is not coercive under Missouri law." Adkison , 517 S.W.3d at 649 (citing Hutson , 487 S.W.3d at 112 ).

2010“There are several factors that aid the courts in determining whether a jury’s verdict was coerced,” including: “(1) the amount of time the jury deliberates before and after the reading of the hammer instruction, (2) whether the trial court knows numerically how the jury is split and the position of the majority, and (3) whether the giving of the hammer instruction conforms with the Notes on Use.” Id.

2010State v. Campbell, 147 S.W.3d 195, 202 (Mo.App.2004)(citing State v. Johnson, 948 S.W.2d 161, 164 (Mo.App.1997)).

2018Point Two-No Abuse of Discretion in Giving the Hammer Instruction A. Standard of Review "The length of time that a jury is allowed to deliberate and the decision whether to give the hammer instruction are matters within the trial court's discretion." *292 State v. Adkison , 517 S.W.3d 645 , 649 (Mo. App. W.D. 2017) (quoting State v. Hutson , 487 S.W.3d 100 , 112 (Mo. App. W.D. 2016).

2018"The giving of a hammer instruction alone is not coercive under Missouri law." Adkison , 517 S.W.3d at 649 (citing Hutson , 487 S.W.3d at 112 ).

2017See Williams, 409 S.W.3d at 467 (deliberation for one hour and twenty-three minutes after instruction); State v. Garrison, 943 S.W.2d 847, 850 (Mo. App. E.D. 1997) (specifically stating that “the time lapse of one hour and eighteen minutes between the hammer instruction and the guilty verdicts is not indicative of coercion.”).

2017See Williams, 409 S.W.3d at 467 (deliberation for one hour and twenty-three minutes after instruction); State v. Garrison, 943 S.W.2d 847, 850 (Mo. App. E.D. 1997) (specifically stating that “the time lapse of one hour and eighteen minutes between the hammer instruction and the guilty verdicts is not indicative of coercion.”).

2014See, e.g., State v. Bracken, 333 S.W.3d 48, 56-57 (Mo.App.2010) (statements instructing the jury to continue deliberations were not the “functional equivalent” of the hammer instruction); State v. Franklin, 751 S.W.2d 128, 130 (Mo.App.1988) (statements instructing the jury to continue deliberations were designed to determine if the jury could reach a verdict and were not used as a substitute for the hammer instruction).

2013State v. Bracken, 333 S.W.3d 48, 56 (Mo.App.2010).

2014See, e.g., State v. Bracken, 333 S.W.3d 48, 56-57 (Mo.App.2010) (statements instructing the jury to continue deliberations were not the “functional equivalent” of the hammer instruction); State v. Franklin, 751 S.W.2d 128, 130 (Mo.App.1988) (statements instructing the jury to continue deliberations were designed to determine if the jury could reach a verdict and were not used as a substitute for the hammer instruction).

1991See, e.g., State v. Franklin, 751 S.W.2d 128, 130 (Mo.App.1988) (defendant’s objection to giving the hammer instruction constituted a binding waiver to his claim of error in failing to give that instruction); State v. Cooper, 735 S.W.2d 85, 86 (Mo.App.1987) (claim of jury misconduct known by the defendant or counsel before the verdict waived when first presented in the motion for new trial); State v. Lindsey, 630 S.W.2d 191, 196 (Mo.App.1982) (waiver resulted from the repeated failure to raise timely objection to the makeup of the jury panel).

2017“Knowing that the jury is deadlocked does not preclude the trial court from reading the hammer instruction and requiring the jury to continue deliberations.” Smith v. State, 276 S.W.3d 314, 319 (Mo. App. E.D. 2008), To determine whether a hammer instruction was used in a coercive manner, we consider several factors, including: (1) the amount of time the jury deliberates before the instruction is given; (2) the amount of time that elapses between the reading of the instruction and the verdict; (3) whether the trial court knows numerically how the jury is split and the position of the majority;

2011Smith v. State, 276 S.W.3d 314 , 319 n. 3 (Mo.App.2008) (finding no coercion where the jury deliberated for five hours before announcing a deadlock and then deliberated further for thirty-five minutes after receiving the hammer instruction); State v. Kinder, 858 S.W.2d 838, 839 (Mo.App.1993) (finding no coercion where the jury deliberated for almost two and a half hours before receiving the hammer instruction and only ten minutes after the instruction); State v. Hoopingamer, 845 S.W.2d 89, 95-96 (Mo.App.1993) (finding no coercion where the jury deliberated for three hours before receiving the

2008The hammer instruction itself is not coercive, State v. Parson, 815 S.W.2d 106, 107 (Mo.App.

2008The hammer instruction itself is not coercive, State v. Parson, 815 S.W.2d 106, 107 (Mo.App.