Appellant cites several cases in which the trial court submitted the hammer instruction to the jury after discovering how the jury stood on a jury verdict. See State v. Cummings, 612 S.W.2d 807 (Mo.App., E.D. 1981); State v. Sanders, 552 S.W.2d 39 (Mo.App., St.L.D. 1977). We initially note that, to the extent Sanders held that a trial judge commits error by giving a hammer instruction when it is aware of how the jury stands, it is no longer good law in the State of Missouri.
Appellant alleges that he was thereby "denied due process and a fair trial by a fair and impartial jury." In support of his claim of trial error, appellant cites State v. Cummings, 612 S.W.2d 807 (Mo.App. 1981), and State v.Sanders, 552 S.W.2d 39 (Mo.App. 1977). However, appellant's reliance on Cummings and Sanders is misplaced.
Compare State v. Smith, 431 S.W.2d 74, 86 (Mo. 1968) (finding no coercion where trial court informed split was 8-4 onissue of guilt, trial court gave hammer instruction, and jury returned one hour and thirty-five minutes later with a guilty verdict) with State v. Cummings, 612 S.W.2d 807, 811 (Mo. App. E.D. 1981 [sic] (finding coercion where trial court was informed split was 9-3 in favor of conviction, court gave hammer instruction, and jury returned ten minutes later with guilty verdict). Equally as speculative is [Leonard's] claim that the jury did not understand the instruction regarding the requirement of a unanimous verdict.
The giving of this instruction is within the trial court's discretion. State v. Cummings, 612 S.W.2d 807, 811 (Mo.App. 1981). It has been approved when given in conjunction with MAI-CR2d 4.50. State v. Carroll, supra, 562 S.W.2d at 773.