Appeals court upholds Hutson convictions, sentences

Almost 18 months after Calvin Hutson was sentenced to life in prison, plus 15 years, plus another 15 years for murder and other charges, a three-judge panel of the state appeals court upheld the jury verdicts and sentences.

A Cole County jury convicted Hutson, now 38, of St. Louis, of second-degree murder, attempted first-degree robbery and armed criminal action, after deliberating 11 hours at the end of a three-day trial in May 2014.

Jurors determined Hutson killed Andre Hudson, 41, of Holts Summit, on Dec. 27, 2012, while the two men were sitting in a car on a gravel parking lot up the hill from the now-demolished Zesto’s Drive In at Broadway Street and the U.S. 50/63 Expressway in Jefferson City.

Cole County Circuit Judge Dan Green imposed the sentences to run consecutively to each other in October 2014.

Green also ordered a seven-year sentence for unlawful possession of a firearm to run concurrently with the life sentence.

Hutson currently is serving his sentences at the Potosi Correctional Center.

Hutson’s appeal challenged Green’s admitting some witness testimony, the sufficiency of the state’s evidence supporting the convictions and Green’s giving the “hammer” instruction when the jury said they were having problems reaching a unanimous verdict.

But the judges — Victor Howard, former state Rep. Gary Witt and Supreme Court Judge Zel Fischer sitting as a special judge — denied the challenges in a 19-page opinion written by Howard.

The court noted Hutson complained Green should not have permitted the testimony because it was “speculation without any probative value and (was) highly prejudicial.”

However, the judges noted: “The trial court has broad discretion to admit a lay witness’s testimony.

“(Green) did not plainly err in allowing testimony.”

Hutson also asked the appeals court to rule Cole County Prosecutor Mark Richardson didn’t present evidence “sufficient to establish beyond a reasonable doubt that (Hutson) tried to forcibly steal marijuana from the victim (Hudson) with the use or threat of a firearm.”

And, he argued, the first-degree robbery charge “formed the basis for both the felony murder and armed criminal action charges,” making those other charges also invalid.

The appeals court disagreed.

“The evidence in this case showed of the offense,” Howard wrote for the court. “Hutson planned to rob the victim of marijuana and acquired a handgun to use in committing the offense.

“He then arranged the meeting with the victim, took the handgun to the meeting and shot the victim four times. Such evidence showed that Hutson had the purpose to commit the underlying offense of robbery and then took a substantial step toward committing the offense.”

Finally, Hutson argued Green’s using what often is called the “hammer” instruction 10 hours into its deliberation amounted to the court coercing “a verdict with the instruction.”

Over the defense attorney’s objections, Green read the extra instruction to the jury after they had asked for guidance when they couldn’t reach a unanimous decision.

“You should make every reasonable effort to reach a verdict, as it is desired that there be a verdict in every case,” Green told the seven-man, five-woman jury. “Each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding, endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.

“Do not be afraid to change your opinion if the discussion persuades you that you should. But a juror should not agree to a verdict that violates the instructions of the Court nor should a juror agree to a verdict of guilty unless he is convinced of the defendant’s guilt beyond a reasonable doubt.”

Although Hutson complained using the “hammer” instruction coerced the jury to make a decision, Howard wrote: “The hammer instruction itself is not coercive in that it seeks open discussion, tolerance, and the desirability of a unanimous verdict and admonishes the jurors against basing a verdict on evidence they do not believe is true.”

The appeals court judgment also noted: “The trial court did not tell the jury that it must reach a verdict in the case and did not imply that it would hold the jury until a verdict was reached.

“The hammer instruction was clear that a juror was to only agree to a guilty verdict if she was convinced of the defendant’s guilt beyond a reasonable doubt.”