Implied Waiver of Sixth Amendment Counsel Through Unreasonable Delay and Court’s Authority to Rectify Inconsistent Jury Verdicts

Introduction

In State of Missouri v. David Thompson, the Supreme Court of Missouri reviewed three principal claims arising from Thompson’s prosecution for domestic assault and violation of a protection order. The appellant argued that (1) his Sixth Amendment right to counsel at the preliminary hearing was violated because he was unrepresented, (2) the trial court improperly refused his proposed lesser-included offense instruction for fourth-degree domestic assault, and (3) the court erred in sending the jury back to deliberate after inconsistent verdict forms were returned. The Court affirmed in all respects, holding that Thompson’s prolonged failure to secure counsel amounted to an implied waiver of his right, that his invited-error on instructions foreclosed appellate review, and that the court properly corrected the jury’s inconsistent verdicts before discharging them.

Summary of the Judgment

The Supreme Court of Missouri unanimously affirmed the circuit court’s judgment. First, it held that Thompson had an adequate opportunity to secure counsel during the 18-month pendency of his preliminary hearing, and by repeatedly delaying and failing to retain counsel, he voluntarily relinquished his right. Second, the Court determined that Thompson’s defense counsel expressly agreed to the court’s version of the lesser-included instruction (Instruction No. 7) and therefore invited any error, waiving review. Third, the Court found no error in the trial court’s issuance of a curative instruction to resolve the jury’s inconsistent verdict forms so long as the jury had not been discharged. Thompson’s convictions for fourth-degree domestic assault and for violating a protection order, along with his subsequent probationary sentence, were affirmed.

Analysis

1. Precedents Cited

• State v. Sisco, 458 S.W.3d 304 (Mo. banc 2015): clarified de novo review of constitutional questions and the standards for implied waiver.
• State v. Cooper, 660 S.W.2d 184 (Mo. App. 1983): presumption of proper court advisements absent a transcript to the contrary.
• United States v. McMann, 386 F.2d 611 (2d Cir. 1967): condemned “cat and mouse” tactics by defendants refusing counsel to delay proceedings.
• Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986): recognized that willful delay in obtaining counsel evidences a knowing manipulation of the system.
• State v. Clay, 533 S.W.3d 710 (Mo. banc 2017) & State v. Bolden, 371 S.W.3d 802 (Mo. banc 2012): explained the invited-error doctrine regarding jury instructions.
• State v. Peters, 855 S.W.2d 345 (Mo. banc 1993): approved the trial court’s power to correct inconsistent verdicts before jury discharge.

2. Legal Reasoning

a. Waiver of Right to Counsel at Preliminary Hearing

The Court recognized that a preliminary hearing is potentially a “critical stage” under the Sixth Amendment, but declined to reach that issue because Thompson effectively waived any right to counsel. Between November 2020 and June 2022—nearly 18 months—Thompson repeatedly failed to appear or secure counsel, despite the associate circuit division’s multiple continuances “for counsel” and its advisements of his “legal rights.” Under Rule 22.09, preliminary hearings must occur within a “reasonable time,” and this delay was solely attributable to Thompson’s inaction. Absent any timely claim of indigency or request for a public defender, the Court held that his right to counsel was knowingly and voluntarily forfeited, citing McMann and Fitzpatrick to underscore that a defendant cannot manipulate his right to unduly prolong proceedings.

b. Lesser-Included Offense Instruction

Missouri law (Section 565.074 for third-degree domestic assault and Section 565.076 for fourth-degree) permits a lesser-included instruction only when the evidence supports acquittal of the charged offense but conviction of the lesser. Thompson had tendered a fourth-degree instruction that mirrored the elements for third-degree assault, thereby precluding any rational basis for acquittal on the greater charge but conviction on the lesser. During the instruction conference, his counsel expressly agreed to the court’s version of the lesser offense (Instruction No. 7) and stated “no objection” twice on the record. Under Rule 28.03 and the invited-error doctrine explained in Clay and Bolden, Thompson waived any complaint about Instruction No. 7 and could not invoke plain-error review of his own counsel’s affirmative agreement.

c. Corrective Instruction for Inconsistent Verdicts

When the jury returned two verdict forms—one acquitting Thompson on Count I and one convicting him under the lesser-included Instruction No. 7—the trial judge properly discovered the inconsistency during a brief recess and, before discharging the jury, issued a curative instruction (Instruction No. 16) directing further deliberations. Under Peters, a verdict is not final until accepted and the jury discharged, and courts are encouraged to rectify confusion rather than let manifest errors stand. Thompson’s objection focused on resuming deliberations rather than the content of the curative instruction itself. The Supreme Court held that the trial court acted within its discretion, and no prejudice or deprivation of a fair trial occurred.

3. Impact

This decision underscores three significant points for Missouri criminal practice:

1. Defendants cannot weaponize their Sixth Amendment right to counsel by refusing to hire an attorney or apply for a public defender, thereby causing unreasonable delays. Courts will deem such conduct a waiver.
2. The invited-error doctrine remains a potent bar to appellate relief when defense counsel expressly agrees to an instruction, even if it differs from a previously tendered version.
3. Trial courts retain broad authority to correct inconsistent verdicts prior to jury discharge, promoting accuracy and finality of outcomes.

Future litigants will need to move swiftly to assert indigency or secure representation, and trial judges will be reinforced in their duty to manage instruction conferences and jury verdicts proactively.

Complex Concepts Simplified

• Critical Stage: A court proceeding at which the defendant needs counsel to ensure fairness (e.g., arraignment, plea bargaining, trial). If a defendant is unrepresented at a critical stage, it may violate the Sixth Amendment.
• Implied Waiver: When a defendant’s actions—such as repeated delay or failure to secure counsel—demonstrate an intentional relinquishment of a known right.
• Lesser-Included Offense: A crime whose legal elements are entirely contained within a more serious charged offense. An instruction is only warranted if the evidence could lead a rational jury to convict on the lesser yet acquit on the greater.
• Invited Error: A litigant cannot complain on appeal about an adverse ruling that he or she expressly approved at trial.
• Corrective Jury Instruction: A remedy allowing a judge to point out and cure mistakes in a jury’s verdict before it becomes final and before the jury is discharged.

Conclusion

State of Missouri v. David Thompson reaffirms that a defendant’s right to counsel at preliminary hearings may be forfeited by dilatory tactics, emphasizes the pro-defendant but final nature of the invited-error doctrine for jury instructions, and confirms a trial court’s discretion to correct inconsistent verdicts prior to jury discharge. Taken together, these rulings fortify trial courts’ authority to maintain orderly, fair, and efficient proceedings while reminding defendants that constitutional rights must be actively asserted, not strategically delayed.