State of Missouri, Respondent, v. Gregory S. Barlow, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent, v. Gregory S. Barlow, Appellant. Case Number: WD62681 Handdown Date: 02/28/2005 Appeal From: Circuit Court of Jackson County, Hon. Jon R. Gray Counsel for Appellant: Rebecca Kurz Counsel for Respondent: Deborah Daniels Opinion Summary: Gregory S. Barlow appeals his convictions and sentences for the class A felony of murder in the first degree, under section 565.020, RSMo 2000; the felony of armed criminal action, under section 571.015, RSMo 2000; and the class C felony of arson in the second degree, under section 569.050, RSMo 2000. Mr. Barlow claims that the trial court erred in accepting the jury's guilty verdicts on each count because the court's polling procedure coerced a dissenting juror into agreeing with the other jurors. Mr. Barlow also claims the trial court plainly erred in permitting certain portions of the State's closing argument. AFFIRMED. Division III holds: (1) The trial court did not err in questioning a juror to clarify the juror's initial response during polling of the jury. The facts and circumstances surrounding the questioning, including the non-coercive nature of the court's questions and defense counsel's failure to raise a contemporaneous objection to the polling procedure, indicate that the juror was not pressured into acquiescing in the guilty verdicts. (2) The trial court did not plainly err in permitting certain portions of the State's closing argument. The disputed portions were either supported by or reasonably inferable from evidence in the record and did not improperly comment on excluded evidence. Citation:

Opinion Author: Patricia Breckenridge, Judge Opinion Vote: AFFIRMED. Howard, P.J., and Ellis, J., concur. Opinion:

Gregory S. Barlow appeals his convictions and sentences for the class A felony of murder in the first degree, under section 565.020, RSMo 2000; (FN1) the felony of armed criminal action, under section 571.015; and the class C felony of arson in the second degree, under section 569.050. Mr. Barlow claims that the trial court erred in accepting the jury's guilty verdicts on each count because the court's polling procedure coerced a dissenting juror into agreeing with the other jurors. Mr. Barlow also claims the trial court plainly erred in permitting certain portions of the State's closing argument. Because this court finds that the polling procedure was not coercive and the trial court did not plainly err in permitting the State's closing argument, the judgment is affirmed. Factual and Procedural Background Mr. Barlow does not challenge the sufficiency of the evidence to support his convictions. The evidence, in the light most favorable to the judgment, was that in late 2001, Mr. Barlow befriended Jack Meagher, whom he had met at a local restaurant. Mr. Barlow began doing handyman work for Mr. Meagher for pay. Two days before New Year's Day, Mr. Barlow moved into Mr. Meagher's house because Mr. Barlow was homeless at the time and living in a shelter. Their association soured after Mr. Barlow moved in, however, and he moved out of the house and back into the homeless shelter approximately two weeks later. On January 21, 2002, Mr. Barlow returned to Mr. Meagher's house. While there, Mr. Barlow grabbed a hammer off of a bookshelf and struck Mr. Meagher in the head with it. He continued to strike Mr. Meagher even after Mr. Meagher had fallen to the ground, bleeding. Mr. Barlow struck Mr. Meagher in the head with the hammer at least ten times. During the attack, Mr. Meagher did not ever hit Mr. Barlow back. When he was finished striking Mr. Meagher, he sat down for a long time, unsure of what to do next. Eventually, Mr. Barlow decided to wrap Mr. Meagher's body in Saran Wrap, cover it with a blanket, tie a rope around the blanket, and put the body in the trunk of Mr. Meagher's car. Mr. Barlow drove around, found a storm sewer, and threw Mr. Meagher's body in the storm sewer. Mr. Barlow then went back to Mr. Meagher's house, retrieved Mr. Meagher's Amoco card, and used it to buy gasoline. At some point, Mr. Barlow also changed his clothes. Mr. Barlow took the gasoline to Mr. Meagher's house, poured the gasoline all over the house, and set on fire the house and the clothes he was wearing when he murdered Mr. Meagher. Next, he drove around and tried to sell Mr. Meagher's car.

When he was unable to sell the car, he parked it in a parking lot and left it. Mr. Barlow rinsed off the hammer and disposed of it in a convenience store trash can. Meanwhile, members of the Kansas City Fire Department were dispatched to Mr. Meagher's home. They found heavy fire damage to all four sides of the home, and the roof had collapsed. The house was so badly damaged that the investigator was unable to determine the origin of the fire. Because Mr. Meagher's body was not discovered in the rubble of the house, his family made a missing person report with the Kansas City Police Department. On January 24, 2002, Mr. Barlow drove up to the remains of Mr. Meagher's home and approached Mr. Meagher's niece, Michelle Tagg. Mr. Barlow told Ms. Tagg his name and said he was there to see if Mr. Meagher had any work for him because he needed the money. Mr. Barlow feigned surprise upon hearing that the house had burned down. He told Ms. Tagg that it had been a week and a half since he had last been to the house and, at that time, he and Mr. Meagher had argued. When Ms. Tagg asked him if he knew where Mr. Meagher might have gone, Mr. Barlow told her he thought Mr. Meagher had gone to Brazil to work for HUD. When questioned by the police a few weeks later, Mr. Barlow told a similar story and offered a phony theory as to who might have started the fire. Mr. Meagher's body was discovered in a sewer filtration system on February 6, 2002. On February 19, 2002, Mr. Barlow was again interviewed by the police. This time, however, he gave a detailed, videotaped confession in which he described the events leading up to the murder, the murder itself, and his actions afterwards. In his confession, he did not implicate anyone else in the murder. The State charged Mr. Barlow with one count of murder in the first degree, one count of armed criminal action, and one count of arson in the second degree. A jury trial was held. During the trial, Mr. Barlow's version of events changed entirely from that contained in his videotaped confession. Mr. Barlow testified that a man he had met at the homeless shelter, James Miles, had murdered Mr. Meagher. Mr. Barlow testified that, on the night of the murder, he and Mr. Miles went to Mr. Meagher's house to pick up some of Mr. Barlow's clothes and ask for work. According to Mr. Barlow, when he went into Mr. Meagher's house, Mr. Meagher insulted him and his girlfriend. Mr. Meagher also started poking Mr. Barlow in the groin area. Mr. Barlow grabbed the hammer, and a struggle ensued. To defend himself, Mr. Barlow hit Mr. Meagher one time in the back of the head with the hammer. Mr. Barlow then dropped the hammer, and the two men continued to struggle. According to Mr. Barlow, Mr. Meagher would not let go of him. At some point, Mr. Miles walked in, grabbed the hammer, and repeatedly hit Mr. Meagher in the head until he was dead. Because he was "kind of a little bit scared" by Mr. Miles' actions, Mr. Barlow claimed that he merely went along with Mr. Miles' directions to dispose of Mr. Meagher's body in a storm sewer and burn down Mr. Meagher's house. Mr. Barlow testified that he failed to mention Mr. Miles' involvement in the murder

earlier because he was afraid of Mr. Miles. The jury found Mr. Barlow guilty on all charges. The court accepted the jury's verdicts and sentenced Mr. Barlow to life imprisonment without the possibility of probation or parole for murder in the first degree; life imprisonment for armed criminal action; and seven years in prison for arson in the second degree. The sentence for armed criminal action was to run consecutively to the sentence for murder in the first degree. Mr. Barlow appeals. No Error in Accepting Guilty Verdicts In his first point, Mr. Barlow claims that the trial court erred in accepting the guilty verdicts because the court violated the procedure for questioning a dissenting juror during polling of the jury. After the court read the jury's verdicts, Mr. Barlow requested that the jury be polled. The court polled the jury: THE COURT: All right. Ladies and gentlemen, the Court's going to poll the jury. As I call your name, if you would, please answer yes or no whether the verdicts that were published were the verdicts to which you agreed. Mr. Reed? JUROR NO. 1: Yes. THE COURT: Mr. Willis? JUROR NO. 2: Yes. THE COURT: Mr. Tranchilla? JUROR NO. 3: Yes. THE COURT: Ms. McWilliams? JUROR NO. 4: No. THE COURT: Ms. Regan? JUROR NO. 5: Yes. THE COURT: Ms. Pennington? JUROR NO. 6 Yes. THE COURT: Ms. Knelt rolled. [sic] JUROR NO. 7: Yes. THE COURT: Ms. Overbay? JUROR NO. 8: Yes. THE COURT: Mr. Bingham? JUROR NO. 9: Yes. THE COURT: Mr. Smith?

JUROR NO. 10: Yes. THE COURT: Mr. Larson? JUROR NO. 11: Yes, sir. THE COURT: Mr. McCreary? JUROR NO. 12: Yes. THE COURT: Ms. McWilliams? JUROR NO. 4: Yes. THE COURT: Was that your verdict? Did you agree to the verdicts that I read? JUROR NO. 4: Yes. THE COURT: All three of them? JUROR NO. 4: Yes. THE COURT: All right. Upon your unanimous decision, the Court will accept [the] verdicts of the jury in this cause, [and] will enter the same as the judgment in this case. The court then thanked the jurors and discharged them. After the court recessed, defense counsel approached the bench and said, "Your Honor, it's clear there's ambiguity in the polling versus the verdict, at least in my mind, and for that reason I ask for a mistrial at this point." The court responded, "All right. The request for mistrial is denied. I did ask the juror that created the ambiguity a second time in fact several questions. As far as the Court's concerned there is no ambiguity, and I find it to be a unanimous verdict." On appeal, Mr. Barlow argues that the trial court ignored the procedure required in Rule 29.01(d), which provides that if, upon polling a jury, "there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged." Mr. Barlow contends that the trial court's questioning of Ms. McWilliams was coercive because there was no ambiguity in her initial response that she did not agree with the verdicts and, by completing the polling and re-questioning her, the court placed additional pressure on her to agree with the other jurors. "A coerced verdict does not represent the jury's true unanimous concurrence." State v. Dodd , 10 S.W.3d 546, 552 (Mo. App. 1999) . The trial court's questioning a juror in open court about the juror's decision, however, is not "inherently coercive." Id . In reviewing the propriety of such questioning, this court "must distinguish between a trial court's effort to eliminate confusion and its attempt to compel a juror to change his vote or to coerce a unanimous verdict." Id . "A trial court errs if it continues to question a juror after that juror's answers clearly evince disagreement

with the verdict." Id . If the juror's uncertainty is the product of confusion and not dissent, the trial court can question the juror "to obtain clarity." Id . The trial court is permitted to "make inquiry in a genteel, polite, non-leading and non- coercive manner that will clarify a juror's response." State v. Hatch, 724 S.W.2d 643, 645 (Mo. App. 1986) . "In evaluating the polling procedure, an appellate court must give deference to the views of the trial judge who was present at the scene on whether th