Almost two years after his conviction, Brian Adkison is appealing his forcible-rape charge, which landed him in prison for 15 years.
Attorney Emmett Queener appealed on Adkison’s behalf Thursday at the University of Missouri law school, where three appellate judges held court. Shaun Mackelprang argued on behalf of the state.
Emmett argued that two errors happened in Adkison’s 2015 trial in Boone County for the rape and deviate sexual-assault charges.
“The issues in the appeal are whether the trial court erred in not declaring a mistrial when the jurors indicated they were deadlocked,” he said. “And whether the trial court denied Mr. Adkison due process of law when it failed to inquire of him whether he wanted to testify on his own behalf in his defense.”
Adkison had already had three mistrials by this point: one mistrial in Boone County for the rape and sexual-assault charges, and two in Chillicothe, Missouri for kidnapping and domestic-abuse charges. The Chillcothe trial still has not proceeded since then.
Emmett argued that at the second Boone County trial for the rape charges, the jury deliberated for more than 10 hours over the course of two days, even sending a note at one point asking if they could be unanimous on one count but not the other.
He said that proved they were not unanimous on the counts and would most likely have been a hung jury if not for a “hammer statement” made by the judge that Emmett said coerced them into definitively deciding two verdicts.
The appellate judges were able to interrupt during the proceedings. Judge Gary Witt asked Emmett about the note.
“How do we know that they hadn’t already unanimously agreed upon the rape charge and that they weren’t in disagreement on the second charge?” he said.
Emmett responded that they couldn’t draw that conclusion.
“I don’t think we can convict Adkison on a reasonable inference that they had done that,” he said.
Judge Mark Pfieffer also speculated that because the jury didn’t bring back an immediate verdict after Carpenter spoke with them the first night and instead, they came back the next day to deliberate, they weren’t coerced into making a unanimous decision.
On the state side, Mackelprang said Carpenter gave the jury three options that were in the typical language of all jury instructions.
“The court gave them options including an option of ‘if you don’t think this is going to go anywhere, we can stop,'” Mackelprang said. “Or ‘if you think it’ll bear fruit tonight we can continue on if you’re close or if you think it’ll bear fruit tomorrow, you can come back tomorrow.'”
He also argued the jury could come to the reasonable conclusion that a guilty/not guilty verdict could be reached based on Adkison’s complicated relationship with the victim.
“They could have believed it didn’t begin that way and that he engaged in oral sex with her under circumstances where he didn’t know that he didn’t have her consent or maybe they didn’t believe her story,” said Mackelprang. “But maybe they believed her story that when he was trying to have sexual intercourse with her, she bit him as hard as she could and he had physical evidence of bite marks with the indentation of the teeth still visible.”
Judge Pfieffer also questioned Emmett’s second argument that the court failed to ask Adkison if he wanted to testify.
Adkison spoke with ABC17 News shortly after the verdicts came down and said he did in fact want to testify and even wrote a note for his lawyer, but no one asked him.
“In Chillicothe, the judge asked me if it was my wish not to testify,” Adkison said in a 2015 interview. “In Boone County, I was never asked if I wished to testify and I did wish to testify in that case.”
“He doesn’t mention anything prior to the verdict, it’s only after the verdict he says, ‘Oh wait, I just thought of something, I want to testify,'” Pfieffer said. “It seems a little bit odd that the timing of the objection would come after the adverse verdict, doesn’t it?”
Queener said he didn’t think the complaint was last minute and that it came up normally. Pfieffer also wondered if the complaint wasn’t about the court not asking, but the attorney not telling the court that Adkison wished to testify.
Mackelprang said the court has no duty to ask the defendant about his decision not to testify.
“The court did ask the defendant whether he understood his right to testify,” he said. “Ordinarily, because the court does not have an affirmative duty to ask, we rely on counsel to provide that advice to the defendant and advise them one way or the other.”
Queener said the state’s argument required Adkison to speak up on his own.
“Trial judges discourage that kind of thing,” he said.
The judges are expected to make a decision on the appeal within the next month or so.