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STATE OF MISSOURI, ) 

 ) 

 Plaintiff-Respondent, ) 

 ) 

vs. ) No. SD34005 

 ) 

DUSTIN M. HICKS, ) Filed: November 22, 2016

 ) 

 Defendant-Appellant. ) 

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY 

Honorable Calvin R. Holden, Circuit Judge 

AFFIRMED 

 A jury found Dustin M. Hicks (“Defendant”) guilty of three crimes: attempted 

rape in the first degree, assault in the second degree, and armed criminal action. All three 

crimes arose out of Defendant’s conduct during an arranged meeting with a prostitute. 

The trial court sentenced Defendant as a prior and persistent offender to imprisonment for 

ten years for attempted rape, twelve years for assault and three years for armed criminal 

action with the ten and twelve-year sentences to run consecutive to one another and the 

three-year sentence to run concurrently with the other sentences. Defendant appeals 

raising two points of asserted trial court error: (1) the trial court abused its discretion in 

denying Defendant’s motion for mistrial based on the jury’s knowledge that the jury 
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would have been permitted to ask witnesses questions but for defense counsel’s objection 

to that procedure, and (2) the trial court plainly erred in not declaring a mistrial sua 

sponte when a question from the jury indicated the jury’s deliberations had become 

contentious following a poll of the jury in which a juror stated guilty verdicts returned by 

the jury were not the juror’s verdicts. We reject Defendant’s points, and affirm the trial 

court’s judgment. 

Standard of Review

 “A mistrial is a drastic remedy to be exercised only in those 

extraordinary circumstances in which the prejudice to the defendant cannot 

otherwise be removed.” State v. Harris, 477 S.W.3d 131, 138 

(Mo.App.E.D.2015). We review the refusal to grant a mistrial for abuse of 

discretion because the trial court, unlike a reviewing court, “has observed 

the complained of incident and is in a better position . . . to determine what 

prejudicial effect, if any, the alleged error had on the jury.” State v. 

McClendon, 477 S.W.3d 206, 215 (Mo.App.W.D.2015). “An abuse of 

discretion is found when the trial court’s ruling is clearly against the logic 

of the circumstances then before it and when the ruling is so arbitrary and 

unreasonable as to shock one’s sense of justice and indicate a lack of careful 

consideration.” Id. 

State v. Roberson, No. WD 78191, 2016 WL 3960989, at *4 (Mo.App. W.D. July 19, 

2016). “[P]lain errors affecting substantial rights may be considered in the discretion of 

the [appellate] court when the court finds that manifest injustice or miscarriage of justice 

has resulted therefrom.” Rule 30.20.1

Analysis

Point I – Denial of Request for Mistrial Based on Trial Court’s Conduct 

Relating to Juror Questions 

 In his first point, Defendant argues that “[t]he trial court abused its discretion in 

denying [Defendant’s] motion for mistrial” because (1) the jury “would hold it against” 

                                                            

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 All rule references are to Missouri Court Rules (2016). 
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Defendant that the jury would not be permitted to ask questions during the trial because 

defense counsel objected to questions by jurors, and (2) the trial court’s “procedure . . ., 

as well as . . . comments . . . before and after the request for the mistrial, were of such a 

nature as would reasonably tend to prejudice the minds of the jury against” Defendant. 

 Immediately after the jury was sworn at Defendant’s trial, the following occurred: 

 [THE COURT:] Now, I’m going to read the instructions, but part 

of the second instruction is not in your notebooks. The first one is not in 

there at all.  What we call Instruction No. 1 is in there except for the last 

part. And here’s why it’s not in there yet. I’ve been doing this for about 18 

years. Right after I went on the bench, I went to the National Judicial 

College for three weeks and learned about judging and what other states do. 

I did not know in all my years of practice, because I hadn’t paid attention to 

other states, that about half the states in the United States do things like let 

you take notes, let you ask questions of the witnesses, which was a novel 

concept for Missouri. So when I came back, I started letting jurors in civil 

cases ask questions. And then I was on the civil jury study committee that 

actually formulated the instruction for them. I’ve been hesitant to ever do 

it in criminal cases because people tell me it might get reversed. I don’t 

think we are, but I’ve decided it’s time to let you guys ask questions, and 

there’s an instruction in here that tells you how you get to do that. 

 [DEFENSE COUNSEL]: Judge, I think we need to approach. 

 THE COURT: No, you don’t. I’ll read the instruction; then you can 

approach. You should have brought this up before they came up. 

 [DEFENSE COUNSEL]: It wasn’t brought to my attention that this 

was going to happen today, Judge. 

 THE COURT: Okay. We’ll be back. 

At that point, counsel approached the bench out of the hearing of the jury. The trial court 

explained to defense counsel that the trial court believed it had given defense counsel’s 

office notice of its intention to permit jurors to ask questions in criminal cases, and also 

recently had mentioned its intention in the courtroom. Defense counsel told the trial 

court that defense counsel had not received notice from her office of the trial court’s 

intention to permit juror questions, and did not hear the trial court announce its intention 
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in the courtroom. The trial court then returned the trial to the hearing of the jury, and 

took a short recess. 

 Following the recess and before the jury returned to the courtroom, defense 

counsel requested a mistrial because the jury “will hold it against us that we're not letting 

any questions be asked in this case.” Following a discussion between the trial court and 

defense counsel with respect to the trial court’s intended procedure for juror questions in 

future criminal cases, the trial court stated that it would not permit juror questions in 

Defendant’s case. The following exchange then occurred: 

 THE COURT: Anything else before I bring the jury? Oh, I’m 

overruling your motion for mistrial. 

 [DEFENSE COUNSEL]: But you are granting my request for a 

clarifying instruction? 

 THE COURT: I’m going to tell them. 

 [DEFENSE COUNSEL]: Okay. 

When the jury returned to the courtroom, the trial court instructed the jury: “Please be 

seated. Okay. You are not going to be allowed to ask questions of witnesses. The next 

trial we will, but not this one.” Defense counsel did not object to the trial court’s 

instruction to the jury. 

 The trial court then read to the jury initial jury instructions for the trial. These 

instructions included the following statements: 

It is the court’s duty to enforce [established rules for those who participate 

in a jury trial] and to instruct you upon the law applicable to the case. It is 

your duty to follow the law as the court gives it to you. 

 However, no statement, ruling, or remark that I may make during 

the trial is intended to indicate my opinion of what the facts are. It is your 

duty to determine the facts and to determine them only from the evidence 

and the reasonable inferences to be drawn from the evidence. 

. . . . 
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 From time to time the attorneys may make objections. They have 

a right to do so and are only doing their duty as they see it. You should 

draw no inference from the fact that an objection has been made. 

 As described in State v. Jackson, 836 S.W.2d 1, 6-7 (Mo.App. E.D. 1992), long 

settled law in Missouri is that: 

The standard of review for examining the conduct of a trial judge is whether 

the trial court’s conduct is such as to prejudice the minds of the jury against 

the defendant thereby depriving the defendant of a fair and impartial trial. 

State v. Koonce, 731 S.W.2d 431, 441 (Mo.App.1987), quoting State v. 

Puckett, 611 S.W.2d 242, 244 (Mo.App.1980). Whether there was 

prejudice depends on the context and words in each case. State v. Koonce, 

731 S.W.2d at 441. The trial court must maintain a position of absolute 

impartiality, avoid any conduct which might be construed as indicating a 

belief on the part of the judge as to the guilt of the defendant. Id. Moreover, 

a judge must maintain a neutral attitude and avoid any demonstrated 

hostility which might impair the appearance of impartiality. State v. Clay, 

763 S.W.2d 265, 268 (Mo.App.1988). 

 This does not mean, however, that the trial judge may not correct 

counsel, when necessary, as long as it is not done in a contemptuous 

manner, or that he may not summarize evidence in explaining a ruling, as 

long as it is not a statement of facts as a matter of law. State v. Thomas, 791 

S.W.2d [861,] 863[ (Mo.App. 1990)]. Moreover, a trial judge may question 

witnesses in order to clarify testimony. State v. Clay, 763 S.W.2d at 268. 

The judge, in so doing, must not indicate a belief in either the guilt or 

innocence of the accused. State v. Koonce, 731 S.W.2d at 441, quoting 

State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654 (1952). Nor may the 

judge let such belief be reflected or even conjectured by the jury in his 

treatment of either counsel. State v. Koonce, 731 S.W.2d at 441. The 

factors used to determine the propriety of any comment include whether the 

trial judge volunteered the comment, whether the comment was made in 

response to an objection as part of the court's ruling, whether the comment 

was made in the jury’s presence and whether the jury could have construed 

the comment to prejudice the defendant. Id. 

 There is no error as long as the trial judge does not express an 

opinion as to the nature, content or truthfulness of evidence. State v. 

Thomas, 791 S.W.2d at 863. Finally, the propriety of a trial judge’s 

comments depend[s] largely upon his tone of voice, facial expressions and 

other similar factors which give content to the trial episodes and the rulings 

thereon. Id. Since those factors are not reflected in the record on appeal, 

we must largely defer to the trial court's superior vantage point to appraise 

the trial situation. Id. 
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 Although the challenged comments were certainly not in MAI and did not follow 

any procedure as far as the question whether jurors should be allowed to take notes in 

criminal cases, under the facts of this case, the trial court’s comments before the jury (1) 

preceded the presentation of any evidence, (2) related solely to a procedural question of 

whether jurors would be permitted to ask questions of witnesses during the trial and not 

to Defendant’s guilt or innocence or the truthfulness or importance of any specific 

evidence, (3) did not appear on their face to be contemptuous of defense counsel, and (4) 

could not have been construed to indicate the trial court believed that Defendant was 

guilty or that, as yet unpresented, evidence was truthful or untruthful. Further, the trial 

court’s comments were followed immediately by instructions that informed the jury (1) 

no statement, ruling, or remark that the trial court may make during the trial is intended to 

indicate the trial court’s opinion of what the facts are, and (2) attorneys have a right to 

object, and the jury should draw no inference from the fact that an objection has been 

made. We further note that defense counsel did not request a specific curative instruction 

at the beginning of the trial and did not object to the court’s statement. 

 In these circumstances, the trial court did not abuse its discretion in denying 

Defendant’s request for a mistrial. Defendant’s first point is denied. 

Point II – Jury Coercion

 In his second point, Defendant claims that, following a poll of the jury in which 

Juror No. 9 indicated that the guilty verdicts returned were not her verdicts and the jury’s 

resumption of deliberations, the “trial court plainly erred in failing to declare a mistrial 

sua sponte” when the jury asked “if a juror unwilling to vote could be replaced with an 
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alternate juror” because the question “shows that the ultimate guilty verdicts were not 

free from any taint, and they do not represent the jury’s true unanimous concurrence.” 

 After slightly less than two hours of deliberations, the jury returned verdicts of 

guilty on all three counts (attempted rape in the first degree, assault in the second degree, 

and armed criminal action). After the trial court read the verdicts, the following 

exchange occurred: 

 [THE COURT:] Ma’am, that is -- did I read the verdicts correctly? 

 THE FOREPERSON: That’s correct. 

 THE COURT: And were they all unanimous? 

 THE FOREPERSON: Yes, sir. 

 THE COURT: [Prosecutor], anything else before I release the jury? 

 [PROSECUTOR]: No, Your Honor. 

 THE COURT: [Defense counsel], anything else before I release the 

jury? 

 [DEFENSE COUNSEL]: Yes, Judge. If I could have the jury 

polled, please. 

 THE COURT: Polling means I’m going to read your name, and then 

just answer those – if that is your verdict or not. 

 I’m going to mispronounce it, but I think it’s [Juror No. 9]. 

 JUROR [NO. 9]: [Juror No. 9 pronounced her last name]. 

 THE COURT: Is that your verdict? 

 JUROR [NO. 9]: No. 

 THE COURT: Okay. You guys need to go back. You have to go 

with the bailiff. 

(The jury left the courtroom and returned to their deliberation room at 4:20 

p.m.) 

 THE COURT: Let’s go on the record. I’m going to bring them back 

in a minute and [sic] them that since one of them said that that was not a 

correct verdict that they shall continue deliberating until they reach a 

verdict. 

 I’ll need, though, probably three [new verdict directors] . . . . 

(A recess was taken from 4:22 p.m. until 4:28 p.m.) 

IN THE PRESENCE OF THE JURY 

 THE COURT: We have prepared three new verdict directors that 

are blank for the ones that you returned that were not unanimous. I’m going 

to give those to John, and we’ll have you go back and start deliberating 

again. 

 So if you’ll go with John, please. 
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Less than twenty-five minutes later, the jury asked two questions as reflected in the 

following exchange between the trial court and counsel: 

 THE COURT: Okay. Here are the two questions: What is the 

process if we are unable to come to a unanimous vote on the verdict? 

 The second question is: Can we replace a juror unwilling to vote 

with the alternate juror? 

 I’m going to put in there you can -- I can give you no further 

instructions. 

 Any objection to that answer on both of them, [Prosecutor]? 

 [PROSECUTOR]: No, Your Honor. 

 THE COURT: [Defense counsel]? 

 [DEFENSE COUNSEL]: No, Your Honor. 

Less than twenty minutes later, the jury again returned verdicts of guilty on all three 

counts. After reading the verdicts, the trial court polled the jury and then accepted the 

verdicts noting that all twelve jurors “answered that those were their verdicts.” 

The jury had been instructed before it began deliberations that: 

 Faithful performance by you of your duties as jurors is vital to the 

administration of justice. You should perform your duties without prejudice 

or fear, and solely from a fair and impartial consideration of the whole case. 

. . . . 

 When you retire to your jury room, you will first select one of your 

number to act as your foreperson and to preside over your deliberations. 

 You will then discuss the case with your fellow jurors. Each of you 

must decide the case for yourself, but you should do so only after you have 

considered all the evidence, discussed it fully with the other jurors, and 

listened to the views of your fellow jurors. 

 Your verdict, whether guilty or not guilty, must be agreed to by each 

juror. 

. . . . 

 You will bear in mind that it is your duty to be governed in your 

deliberations by the evidence as you remember it, the reasonable inferences 

which you believe should be drawn therefrom, and the law as given in these 

instructions. 

 It is your duty, and yours alone, to render such verdict under the law 

and the evidence as in your reason and conscience is true and just. 
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 The Western District recently rejected a preserved claim similar to Defendant’s 

unpreserved claim and on facts similar to the facts in this case in State v. Roberson, No. 

WD 78191, 2016 WL 3960989 (Mo.App. W.D. July 19, 2016). In Roberson, the jury 

foreperson, on being polled, stated the guilty verdicts returned by the jury were not the 

foreperson’s verdicts. Id. at *2. After the trial court instructed the jury to resume 

deliberations as permitted by Rule 29.01(d), Id., the following events occurred over a 

little more than the next two hours. The jury first asked “[a]re alternates available if 

someone is emotionally unprepared and can’t reach a verdict?” Id. The jury next sent a 

note stating “[w]e can’t all agree. What do we do now?” Id. at *3. The trial court 

brought the jury back into the courtroom and asked whether the jury was unable to agree 

on “any” of the counts before it or were there “certain counts” the jury could agree on 

and “certain counts” the jury could not agree on to which the foreperson replied “[c]ertain 

counts that we can agree and certain counts that we cannot.” Id. The trial court 

instructed the jury to resume deliberations. Id. The jury then asked, “[c]an we change 

our foreperson?” Subsequently, just before the jury again returned guilty verdicts and, on 

being polled, confirmed that the verdicts were their verdicts, the trial court observed, “I 

have sat in my chambers and in the last 10 minutes I have heard voices raised.” Id.

 On these facts, the Western District “decline[d] Roberson’s invitation to expand 

‘jury coercion’ to include a trial court’s failure to terminate contentious jury 

deliberations.” Id. at *6 (footnote omitted). In so holding, the Western District also 

stated: 

 Roberson correctly observes that “[a] coerced verdict does not 

represent the jury’s true unanimous concurrence.” Harris, 477 S.W.3d at 
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139. Thus, coercion of a guilty verdict constitutes error. State v. Steed, 455 

S.W.3d 479, 482 (Mo.App.E.D.2015). 

 This bedrock principle does not afford Roberson relief, however, 

unless he can demonstrate that his verdicts were “coerced,” a legal principle 

with a settled meaning. “A verdict is considered coerced when under the 

totality of the circumstances it appears that the trial court was virtually 

directing that a verdict be reached and by implication indicated it would 

hold the jury until a verdict was reached.” State v. Saunders, 318 S.W.3d 

745, 749 (Mo.App.W.D.2010) (emphasis added). In short, “‘[w]hen it 

appears from the circumstances that a verdict is coerced by the court, the 

verdict must be overturned.’” State v. McNail, 767 S.W.2d 84, 86 

(Mo.App.E.D.1989) (emphasis added) (quoting State v. Rojano, 519 

S.W.2d 42, 44 (Mo.App.1975)). “Jury coercion” thus presupposes trial 

court conduct which improperly invades the province of the jury to 

deliberate and reach (or not reach) a verdict. See Brasfield v. United States, 

272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345 (1926) (holding that trial 

court inquiry into jury division “can rarely be resorted to without bringing 

to bear in some degree ... an improper influence upon the jury, from whose 

deliberations every consideration other than that of the evidence and the law 

as expounded in a proper charge, should be excluded”). 

Id. at *4. And: 

 Our independent research has not revealed any authority for the 

proposition advanced by Roberson [(i.e., “that once the trial court became 

aware that jury deliberations had become contentious, the failure to 

terminate the deliberations became coercive”)]. In fact, Roberson’s 

proposition disregards that disagreement among jurors is inherent in the 

deliberative process, a fact recognized by mandatory criminal jury 

instructions. MAI-CR 3d 302.01 instructs the jury: “It is your duty to 

determine the facts and to determine them only from the evidence and the 

reasonable inferences to be drawn from the evidence. In your determination 

of the facts, you alone must decide upon the believability of the witnesses 

and the weight and value of the evidence.” MAI-CR 3d 302.05 further 

instructs the jury: “You will . . . discuss the case with your fellow jurors. 

Each of you must decide the case for yourself, but you should do so only 

after you have considered all of the evidence, discussed it fully with the 

other jurors, and listened to the views of your fellow jurors.” Even MAICR 3d 312.10, the hammer instruction given in a trial court’s discretion 

when a jury is deadlocked, instructs each juror to “respect the opinions of 

your fellow jurors” and to “not be afraid to change your opinion if the 

discussion persuades you that you should.” These instructions underscore 

that each juror’s task is to listen to the evidence, to independently draw 

inferences from the evidence, and to discuss his or her views with other 

jurors. These instructions also underscore that disagreement, even strident 

disagreement, is an inevitable part of the deliberative process. See State v. 
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Copple, 51 S.W.3d 11, 14 (Mo.App.W.D.2001) (holding that hammer 

instruction “'urges frank and open discussion”') (quoting State v. Jackson, 

896 S.W.2d 77, 80 (Mo.App.W.D.1995)). 

Id. at *6. 

 The trial court did not err, either plainly or otherwise, and did not abuse its 

discretion, in not declaring a mistrial sua sponte on the basis that disagreement among the 

jurors constituted jury coercion that prevented the jury from reaching a unanimous 

decision. Defendant’s second point is denied. 

 The trial court’s judgment is affirmed. 

Nancy Steffen Rahmeyer, J. - Opinion Author 

Gary W. Lynch, P.J. - Concurs 

Daniel E. Scott, J. - Concurs