concurring.
I am constrained to concur. State v. Sanders, 552 S.W.2d 39 (Mo.App.1977) has been overruled. However, I believe the rationale underpinning the Sanders decision still makes sense.
Forceful argument can be made that the elliptical and qualifying language used in the “hammer instruction,” MAI-CR 2d 1.10, is innocuous and, therefore, does nothing more than tell the jury to keep deliberating as it has been. However, I believe the “hammer instruction” is aptly described, and, given this instruction, a jury can and does infer that the judge wants it to reach a decision. In the present case, as in Sanders, the jury informed the judge how it stood on its vote and, thus, the jury knew the judge knew the vote. Inferring from the “hammer instruction” that a decision should be reached, the jury would make the most sensible further inference that it should follow the line of least resistance; the minority should give way to the majority for the necessary unanimous verdict.
From this, I conclude defendant here was prejudiced.