Opinion handed down January 13, 2015
In 2013, the defendant, Thomas A. Ess (“Ess”), was convicted of first-degree statutory sodomy,[1] two counts of second-degree statutory sodomy,[2] and one count of attempted first-degree child molestation[3] in the Circuit Court of Monroe County.[4] Following his conviction, Ess filed a timely appeal hinged on three arguments – that there were questions of (1) juror misconduct, (2) instructional error, and (3) insufficient evidence to support two of his convictions.[5] Regarding the question of juror misconduct, “Ess alleged Juror No. 3 committed misconduct by announcing during a lunch recess during voir dire that ‘this is an open and shut case’ after the circuit court instructed the panel members they were not to discuss the case or form an opinion before the case was submitted.”[6]
The Supreme Court of Missouri reversed the trial court’s judgment and remanded the case, holding that “one juror committed misconduct through the intentional nondisclosure of a material fact related to the lawsuit[,]”[7] and that “there was insufficient evidence to convict Ess of attempted first-degree child molestation.”[8]
I. Facts and Holding
The charges against Ess stemmed from acts he committed against his two stepsons on numerous occasions over an eight-year time span, between 1995 and 2003.[9] The boys gave testimony at trial describing the acts of sodomy their stepfather perpetrated against them.[10] Ess denied each of the boys’ allegations, claiming his relationship with his stepsons had worsened over the years.[11]
Of the six counts given to the jury, Ess was found guilty of five.[12] In his appeal, Ess asserted that he was entitled to a new trial due to misconduct committed by one of the jurors, who was designated as Juror No. 3. After Ess filed a motion for a new hearing,
[t]he circuit court held an evidentiary hearing on Ess’s motion. Venireperson No. 26 testified he was sitting in the hallway outside of the courtroom on a bench after lunch when Juror No. 3 stated it was [an open and shut] case. Venireperson No. 26 further testified Juror No. 11 made a ‘shh’ sound after Juror No. 3 made the comment.[13]
Juror No. 3 never affirmatively stated that he would strive to remain impartial until it was time for the jury to deliberate.[14] The threshold question regarding juror misconduct became whether or not this nondisclosure was intentional or unintentional.[15] The court held that “Juror No. 3’s failure to respond to [the voir dire] questions [regarding impartiality] was an intentional nondisclosure.”[16]
The trial court declined to grant Ess’s motion for a new trial. In its written judgment, the trial court considered that Ess had not presented any evidence from Juror No. 3 personally, such as an affidavit or first-hand testimony.[17] Further, Ess did not adduce anything that could reveal the context of the juror’s statement, “including any information about his mannerism, tone, or gestures when making the comment.”[18] The trial court found there was insufficient evidence to determine whether Juror No. 3 had favored the State or Ess when making his statement or casting his vote.[19]
II. Legal Background
A nondisclosure is considered intentional when “(1) there is no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and (2) the prospective juror remembers the experience or that it was of such significance that the juror’s purported forgetfulness is unreasonable.”[20] Per State v. Mayes, “[i]n order to prove intentional concealment by a juror, the defendant must, at a minimum, allege intentional concealment in his motion for a new trial and file an affidavit from the juror setting forth the facts surrounding the alleged concealment which reveals prejudice to the defendant.”[21]
III. Instant Decision
Each of the seven judges agreed that the evidence presented at trial was sufficient to support Ess’s conviction for first-degree statutory sodomy since the State presented evidence that would allow a reasonable juror to find Ess committed the offense.[22] They further agreed that the State failed to present enough evidence to maintain a conviction for attempted first-degree child molestation because the “evidence was not strongly corroborative of Ess’s purpose to complete the offense of first-degree child molestation.”[23]
Of the seven judges, four agreed with Judge Draper’s opinion that the trial court erred in overruling Ess’ motion for a new trial on the grounds of juror misconduct (specifically, Juror No. 3’s intentional nondisclosure). The court held that Ess was not obligated to provide sworn testimony from Juror No. 3 in order to adequately show that the juror committed misconduct by purposely failing to disclose that he had formed an opinion about Ess’s guilt or innocence prior to the jury took leave to deliberate.[24]
In a separate opinion, Judge Wilson found that the trial court did not abuse its discretion in overruling Ess’s motion for a new trial, because Ess was not claiming nondisclosure, but rather juror bias.[25] Judge Wilson indicated that he would have deferred to the trial court, given its advantage in weighing evidence and acting as a factfinder, and would have held that the trial court record clearly showed that Ess did not make a sufficient showing to sustain a claim of juror bias against him.[26]
IV. Comment
Because Ess failed to preserve the issue of juror misconduct for appeal, his motion for a new trial had to be reviewed for an abuse of discretion.[27] Ess failed to show that Juror No. 3’s comments indicated a bias against him or that any bias resulted in a miscarriage of justice or manifest injustice. It is unclear from Juror No. 3’s comment whether he believed this was an “open and shut” case for the State or the defense. Lacking any further supporting evidence, Ess should not have been entitled to receive a new trial based on the arguments he promulgated.
- Blair Bopp
[1] See Mo. Rev. Stat. § 566.062 (2014).
[2] See Mo. Rev. Stat. § 566.064 (2014).
[3] See Mo. Rev. Stat. § 566.067 (2014).
[4]State v. Ess, 453 S.W.3d 196, 199 (Mo. 2015) (en banc)
[5] Id.
[6] Id. “Ess argued this comment revealed a bias existing at the outset of trial, which was not disclosed intentionally during voir dire and was communicated to others in violation of the circuit court’s order.” Id.
[7] Id. Specifically, that one juror directly violated the court’s instructions and formed an opinion as to Ess’ guilt or innocence prior to the inception of the jury’s deliberations. Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at 200.
[14] Id. at 204.
[15] Id. at 203.
[16] Id. at 205.
[17] Id.
[18] Id. at 200.
[19] Id.
[20] State v. McFadden, 391 S.W.3d 408, 418 (Mo. 2013) (en banc).
[21] State v. Mayes, 63 S.W.3d 615, 626 (Mo. 2001) (en banc) (quoting State v. Potter, 711 S.W.2d 539, 541 (Mo. Ct. App. 1986) (emphasis added).
[22] Ess, 453 S.W.3d at 207.
[23] Id. at 208.
[24] Id. at 205-06.
[25] Id. at 209 (Wilson, J., concurring in part and dissenting in part).
[26] Id. at 211-12 (Wilson, J., concurring in part and dissenting in part).
[27] Id. at 201.
