State of Missouri v. Markus Steed , 455 S.W.3d 479 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISON FOUR
STATE OF MISSOURI, ) No. ED101106
)
Respondent, ) Appeal from the Circuit Court of
) the City of St. Louis
vs. )
)
MARKUS STEED, ) Honorable Joan L. Moriarty
)
Appellant. ) Filed: February 24, 2015
Introduction
Marcus Steed (Defendant) appeals the judgment of conviction entered after a jury found
him guilty of unlawful possession of a firearm and unlawful use of a weapon. Defendant claims
the trial court erred in denying: (1) his request for a mistrial when the trial court instructed the
jury to continue deliberations; and (2) his motion for judgment of acquittal because the State
produced insufficient evidence to support his conviction. We affirm.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the evidence at trial revealed the
following: On May 29, 2012, Defendant and another man were walking along a sidewalk, when
Officer Barone, who was on patrol with Officers Jenkins and Henry, recognized Defendant from
a previous arrest and asked to speak to him. While Officer Barone spoke to Defendant, Officer
Henry conducted a computer inquiry and learned that Defendant had active warrants. Officer
Barone handcuffed Defendant, informed him he was under arrest, and performed a pat-down
search incident to arrest. In his search, Officer Barone discovered a loaded, nine-millimeter
semiautomatic pistol in Defendant’s waistband beneath his untucked shirt.
The State charged Defendant with unlawful possession of a firearm and unlawful use of a
weapon. The trial court held a jury trial in December 2013. At trial, the State called to testify
Officer Katherine Castillo, a firearms examiner, and Officers Jenkins and Barone. Officer
Jenkins stated that he observed Officer Barone remove from Defendant’s waistband “a rusted,
brown semiautomatic handgun.” Officer Jenkins identified the gun in court (“State’s Exhibit 1”)
and again described it as “rusty, brown.” Officer Barone also identified the gun. On cross-
examination, he affirmed that, in the police report, he wrote that the gun had a “nickel finish,”
but agreed with defense counsel that the gun, in fact, had a “blue finish.” On redirect
examination, Officer Barone described the gun as “rusty brown.” Officer Castillo, the firearms
examiner who examined the gun seized from Defendant, testified that the gun had a “blue-steel
finish” and appeared “slightly” rusted.
The parties stipulated to Defendant’s prior felony convictions,1 and Defendant rested at
the close of the State’s case without presenting evidence. Defense counsel moved for a judgment
of acquittal at the close of the State’s evidence and at the close of all evidence, and the trial court
denied the motions.
The jury retired to begin deliberations at 4:40 p.m. At 5:50 p.m., the jury sent the trial
court the following inquiry: “We cannot come up with a decision today. Is it possible to come
back tomorrow to deliberate tomorrow?” After consulting the parties, the trial court released the
jury for the evening.
1
After the jury left the courtroom, the State presented evidence of Defendant’s prior convictions
and the trial court found that Defendant was a prior offender under Section 558.016.
2
The following day, the jury resumed deliberations at 9:13 a.m. At 10:19 a.m., the jury
sent the trial court the following question: “What do we do when we can not [sic] come to a
unanimous decision[?]” The prosecutor requested that the trial court urge the jury to “continue
deliberating” as they had “only deliberated for a total of around two hours.” She explained, “I
think given more time, there’s a possibility they could reach a unanimous verdict.” Defense
counsel disagreed and moved for a mistrial, arguing that the jury had already deliberated over
two hours and “their question to the [c]ourt indicated absolutely no possibility of coming to an
unanimous decision whatsoever, making further deliberation a pointless exercise.”
After hearing arguments, the trial court sent the jury the following response: “The court
advises that the jury is to continue deliberations.” At 12:00 p.m., the jury returned its verdict
finding Defendant guilty of both counts. The trial court sentenced Defendant as a prior offender
to concurrent terms of seven years’ imprisonment for unlawful possession of a firearm and two
years’ imprisonment for unlawful use of a weapon. Defendant appeals.
Standard of Review
Appellate courts review the denial of a request for a mistrial only for abuse of discretion.
State v. Salazar, 414 S.W.3d 606, 620 (Mo.App.S.D. 2013). “An abuse of discretion occurs
when the trial court's ruling is clearly against the logic of the existing circumstances and is so
arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration.” State v. Bracken, 333 S.W.3d 48, 55 (Mo.App.E.D. 2010) (internal quotation
omitted).
Our review of a challenge to the sufficiency of the evidence supporting a criminal
conviction is limited to a determination of whether the trier of fact reasonably could have found
the defendant guilty. State v. Blankenship, 415 S.W.3d 116, 121 (Mo. banc 2013). “Appellate
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courts do not weigh the evidence but accept as true all evidence tending to prove guilt together
with all reasonable inferences that support the verdict and ignore all contrary evidence and
inferences.” Id. (quotation omitted).
Discussion
In his first point, Defendant claims the trial court erred in denying his request for a
mistrial after it “twice advised the court that it could not arrive at a decision . . . .” Defendant
further contends that the trial court’s action was coercive and prejudicial because “it compelled
the jury to return guilty verdicts against [Defendant].” The State counters that the court’s
instruction to the jury to continue deliberations was not coercive.
“Coercion of a guilty verdict constitutes error.” State v. Manley, 414 S.W.3d 561, 570
(Mo.App.E.D. 2013). “A verdict is considered coerced when it appears, under all the
circumstances, that the trial court was virtually directing that a verdict be reached and implying
that it would hold the jury until that happened.” State v. Griffith, 312 S.W.3d 413, 421
(Mo.App.S.D. 2010). “Urging the jury to reach a verdict by a certain time or telling the jury that
it is required to reach a verdict is also deemed coercive.” Manley, 414 S.W.3d at 570. “A
reversal is required if it is conceivable that a challenged instruction coerced the jury into
returning a verdict, and nothing in the record is available to find otherwise.” Id. (quoting State v.
Greenlee, 327 S.W.3d 602, 616 (Mo.App.E.D. 2010)).
As an initial matter, we address Defendant’s claim that the jury “twice advised the court
that it could not arrive at a decision.” (emphasis added). The jury submitted two questions to the
trial court, the first of which asked: “We cannot come up with a decision today. Is it possible to
come back tomorrow to deliberate tomorrow?” Nothing in this question suggests that the jury
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deemed itself unable to reach a verdict. The question simply reveals that that, at 5:50 p.m., the
jury concluded that it could not reach a decision that day.
Nor does the jury’s second question –“What do we do when we can not [sic] come to a
unanimous decision[?]” – communicate an inability to reach a unanimous decision. The question,
asked in the future tense, presents a hypothetical question. The jury was contemplating the
possibility of a hung jury, but it was not declaring deadlock.
Assuming arguendo that the jury was hung when the trial court instructed it to continue
deliberations, Defendant has not alleged, much less demonstrated, that the trial court “stated or
implied that the jury would not be released until it returned a verdict, that it must reach a verdict
by a certain time, or that it was required to reach a verdict . . . .” Manley, 414 S.W.3d at 570
(quoting Greenlee, 327 S.W.3d at 617). Indeed, Defendant acknowledges in his brief:
“[Defendant] does not allege that the trial court ‘positively misdirected’ the jury by telling it that
it must continue to deliberate.” The trial court’s instruction did not require the jury to reach a
verdict, but merely to continue deliberations. See id.
Furthermore, the circumstances surrounding the jury’s deliberations and verdict do not
suggest that the verdict was coerced. The jury deliberated over two hours before it asked the trial
court, “What do we do when we can not [sic] come to a unanimous decision[?],” and it
deliberated another one and one half hours after the trial court advised the jury to continue
deliberating. “Missouri courts have found that a time period as short as approximately one-half
hour was not a sign that the verdict was coerced.” Manley, 414 S.W.3d at 571. Additionally,
Defendant does not allege, and the record does not suggest, that the trial court knew the jury’s
numerical split or the majority’s position, a factor which may, in certain circumstances, evidence
coercion. See State v. Saunders, 318 S.W.3d 745, 749 (Mo.App.W.D. 2010). Because
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Defendant fails to identify any evidence that the trial court’s instruction to the jury to continue
deliberations coerced a guilty verdict, we conclude that the trial court did not abuse its discretion
when it denied Defendant’s request for a mistrial. Point denied.
In his second point, Defendant claims the trial court erred in denying his request for
judgment of acquittal because the State presented insufficient evidence to prove he committed
the crimes of unlawful possession of a firearm and unlawful use of a weapon. Specifically,
Defendant contends that the State “failed to prove every element of each offense beyond a
reasonable doubt in that the contradictory descriptions of the gun given by Officers Jenkins,
Castillo, and Barone cast doubt on whether the gun which was admitted as State’s Exhibit 1 was
in fact the gun allegedly seized from [Defendant].” In response, the State asserts that it presented
sufficient evidence at trial “from which a reasonable juror might have found [Defendant] guilty
of all the essential elements of the crime.”
“To convict a defendant of a criminal offense, the State is required, as a matter of due
process, to prove beyond a reasonable doubt each and every element of the offense charged.”
State v. Slocum, 420 S.W.3d 685, 687 (Mo.App.E.D. 2014). As charged here, a person commits
the crime of unlawful possession of a firearm “if such person knowingly has any firearm in his or
her possession and . . . [s]uch person has been convicted of a felony under the laws of this state .
. . .” Mo. Rev. Stat. § 571.070.1(1).2 A person commits the crime of unlawful use of a weapon
when he or she knowingly “[c]arries concealed upon or about his or her person . . . a firearm . . .
.” Mo. Rev. Stat. § 571.030.1(1). To prove Defendant guilty of both offenses, the State was
required to prove that Defendant knowingly possessed a firearm.
2
All statutory references are to RSMo 2000 as supplemented unless otherwise indicated
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Here, the State presented two police officers who testified that, at the time of his arrest,
Defendant carried a nine-millimeter semiautomatic handgun in his waistband under his shirt.
This evidence was sufficient to support the jury’s finding that on May 29, 2012, Defendant was
carrying a gun. Discrepancies in the witnesses’ descriptions of the gun relate to matters of
witness credibility, which are beyond our scope of review. See State v. Dvorak, 295 S.W.3d
493, 504 (Mo.App.E.D. 2009). “[T]he credibility and the effects of conflicts or inconsistencies
in testimony are questions for the jury.” Id. (quotation omitted). Based on our review of the
record, we hold that the State adduced sufficient evidence to prove the element of each crime
beyond a reasonable doubt. Point denied.
Conclusion
The judgment of the trial court is affirmed.
Patricia L. Cohen, Presiding Judge
Roy L. Richter, J., and
Robert M. Clayton III, J., concur.
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