In the Missouri Court of Appeals
Eastern District
DIVISION ONE
STATE OF MISSOURI, ) No. ED102678
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. ) 14SL-CR00017
)
ARTHUR B. ROBINSON, ) Honorable Gloria Clark Reno
)
Defendant / Appellant. ) FILED: March 22, 2016
OPINION
Arthur B. Robinson (Defendant) appeals the judgment of his conviction after a jury trial
on one count of burglary in the first degree, in violation of Section 569.160, RSMo 2000. 1 The
trial court sentenced Defendant, as a prior and persistent offender, to twenty years’
imprisonment. We reverse and remand for new trial.
Factual and Procedural Background
In January 2014, the State charged Defendant with first-degree burglary in violation of
Section 569.160, and with resisting or interfering with arrest in violation of Section 575.150. The
resisting arrest charge was dismissed, and the case went to trial on the burglary charge. At the
commencement of voir dire, however, the trial court informed the jury that the State had charged
Defendant with both felonies. Defense counsel moved for a mistrial due to that disclosure, and
1
Unless otherwise indicated, all further statutory references are to RSMo 2000, as amended.
the trial court denied the motion. The trial court then instructed the jury pool as to the
presumption of Defendant’s innocence, the reasonable doubt standard, and that the charge
against Defendant was not evidence. After questioning by both parties, the jury was selected and
sworn in.
In every criminal trial, the judge is mandated to read three introductory pattern
instructions as soon as the jury is sworn. MAI-CR3d 300.06 explains the order of the
proceedings and the occasional need for delay:
This case will proceed in the following order:
First, the Court will read to you two instructions concerning the law applicable to
this case and its trial. Next, the attorney for the state must make an opening
statement outlining what the attorney expects the state’s evidence will be. The
attorney for the defendant is not required to make an opening statement then or at
any other time. However, if the attorney chooses to do so, he may make an
opening statement after that of the state, or the attorney may reserve his opening
statement until the conclusion of the state’s evidence.
Evidence will then be introduced.
At the conclusion of all the evidence, further instructions in writing concerning
the law will be read to you by the Court, after which the attorneys may make their
arguments. You will then be given the written instructions of the Court to take
with you to the jury room. You will go to that room, select a foreperson,
deliberate, and arrive at your verdict.
Sometimes there are delays or conferences out of your hearing with the attorneys
about matters of law. There are good reasons for these delays and conferences.
The Court is confident that you will be patient and understanding. We will have
recesses from time to time.
The following two instructions of law are for your guidance in this case. The two
of them, along with other instructions in writing read to you at the close of all the
evidence, will be handed to you at that time to take to your jury room.
Trial courts must then read MAI-CR3d 302.01, which delineates the duties of judge and
jury:
2
Those who participate in a jury trial must do so in accordance with established
rules. This is true of the parties, the witnesses, the lawyers, and the judge. It is
equally true of jurors. It is the court’s duty to enforce these rules and to instruct
you upon the law applicable to the case. It is your duty to follow the law as the
court gives it to you.
However, no statement, ruling, or remark that I may make during the trial is
intended to indicate my opinion of what the facts are. It is your duty to determine
the facts and to determine them only from the evidence and the reasonable
inferences to be drawn from the evidence. In your determination of the facts, you
alone must decide upon the believability of the witnesses and the weight and
value of the evidence.
In determining the believability of a witness and the weight to be given to
testimony of the witness, you may take into consideration the witness’ manner
while testifying; the ability and opportunity of the witness to observe and
remember any matter about which testimony is given; any interest, bias, or
prejudice the witness may have; the reasonableness of the witness’ testimony
considered in the light of all the evidence in the case; and any other matter that
has a tendency in reason to prove or disprove the truthfulness of the testimony of
the witness.
It is important for you to understand that this case must be decided only by the
evidence presented in the proceedings in this courtroom and the instructions I give
you. The reason for this is that the evidence presented in court is reviewed by the
lawyers and the court, and the lawyers have the opportunity to comment on, or
dispute, evidence presented in court. If you obtain information from other places,
the lawyers do not have the opportunity to comment on or dispute it. Fairness and
our system of justice require giving both sides the opportunity to view and
comment on all evidence in the case. It is unfair to the parties if you obtain
information about the case outside this courtroom.
Therefore, you should not visit the scene of any of the incidents described in this
case, nor should you conduct your own research or investigation. For example,
you should not conduct any independent research of any type by reference to
textbooks, dictionaries, magazines, the Internet, a person you consider to be
knowledgeable or any other means about any issue in this case, or any witnesses,
parties, lawyers, medical or scientific terminology, or evidence that is any way
involved in this trial.
You should not communicate, use a cell phone, record, photograph, video, e-mail,
blog, tweet, text or post anything about this trial or your thoughts or opinions
about any issue in this case to any person. This prohibition on communication
about this trial includes use of the Internet, [List popular websites such as
“Facebook,” “MySpace,” “Twitter.”], or any other personal or public website.
3
Faithful performance by you of your duties as jurors is vital to the administration
of justice. You should perform your duties without prejudice or fear, and solely
from a fair and impartial consideration of the whole case. Do not make up your
mind during the trial about what the verdict should be. Keep an open mind until
you have heard all the evidence and the case is given to you to decide.
If the trial court plans to allow jurors to take notes, it adds parenthetical information from MAI-
CR3d 302.01:
Each of you may take notes in this case but you are not required to do so. I will
give you notebooks. Any notes you take must be in those notebooks only. You
may not take any notes out of the courtroom before the case is submitted to you
for your deliberations. No one will read your notes while you are out of the
courtroom. If you choose to take notes, remember that note-taking may interfere
with your ability to observe the evidence and witnesses as they are presented.
Do not discuss or share your notes with anyone until you begin your deliberations.
During deliberations, if you choose to do so, you may use your notes and discuss
them with other jurors. Notes taken during trial are not evidence. You should not
assume that your notes, or those of other jurors, are more accurate than your own
recollection or the recollection of other jurors.
After you reach your verdict, your notes will be collected and destroyed. No one
will be allowed to read them.
Courts then proceed to read MAI-CR3d 302.02, which defines what is—and what is
not—evidence:
You must not assume as true any fact solely because it is included in or suggested
by a question asked a witness. A question is not evidence, and may be considered
only as it supplies meaning to the answer.
From time to time the attorneys may make objections. They have a right to do so
and are only doing their duty as they see it. You should draw no inference from
the fact that an objection has been made.
If the court sustains an objection to a question, you will disregard the entire
question and you should not speculate as to what the answer of the witness might
have been. The same applies to exhibits offered but excluded from the evidence
after an objection has been sustained. You will also disregard any answer or other
matter which the court directs you not to consider and anything which the court
orders stricken from the record.
4
The opening statements of attorneys are not evidence. Also, you must not
consider as evidence any statement or remark or argument by any of the attorneys
addressed to another attorney or to the court. However, the attorneys may enter
into stipulations of fact. These stipulations become part of the evidence and are to
be considered by you as such.
In the instant case, rather than give the preliminary instructions above, the trial court
immediately turned proceedings over to the State, which made its opening argument. Neither the
State nor Defendant made an objection to the trial court’s failure to read the preliminary
instructions. Given the disposition of this case, only a brief recitation of the facts is necessary
viewed in the light most favorable to the verdict. The parties introduced testimony from several
witnesses, including a victim who testified she heard knocking on her door, footsteps inside her
residence, and thereafter saw Defendant near her porch. Other witnesses testified that they saw a
man who matched Defendant’s description on the victim’s porch and near the scene. Defendant
was arrested after fleeing the area and police. Defendant told the police he was trying to earn
money by shoveling snow but did not enter the victim’s residence. Defendant didn’t testify at
trial but called several witnesses who testified Defendant had shoveled walks for them. After
presentation of evidence by the State and by Defendant respectively, the trial court denied
Defendant’s motions for judgment of acquittal.
Thereafter, the failure to read preliminary instructions 300.06, 302.01, and 302.02 must
have been noted, though no specifics were transcribed in our record on appeal. 2 A brief record
regarding the jury instructions was made. The prosecutor asked: “regarding 302.01 and 302.02,
are we still going to do that before the closing?” The judge answered: “Yes.” The parties agreed
that Instruction 1 would be MAI-CR3d 302.01 and that Instruction 2 would be 302.02. Those
instructions contain language forbidding jurors from certain behavior, as noted below. Rather
2
On appeal, the failure to give instructions based on MAI-CR3d 300.06, 302.01, and 302.02 at
the beginning of trial was conceded by the State.
5
than performing an individual voir dire of the jury panel, the trial court expressed its intent to
change the instructions’ language to past tense and inquire whether the jury had comported with
the directives.
The text of Instruction 1 was identical to MAI-CR3d 302.01, except for the following
changes (emphasis here):
Therefore, you should not have visited the scene of any of the incidents described
in this case, nor should you have conducted your own research or investigations.
For example, you should not have conducted any independent research…
You should also have not communicated by use of a cell phone, record,
photograph, video, email, blog, tweet, text or post anything about this trial or your
thoughts or opinions about any issue in this case to any person.
The trial judge questioned the jury about those forbidden behaviors:
Did any of you conduct any independent research, review any magazines,
dictionaries, or talk to anyone about the case as was instructed you at the very
beginning not to discuss this case among yourselves or talk to anyone about the
case? Did anyone do that? . . . Did anyone [communicate by use of a cell phone,
record, photograph, video, e-mail, blog, tweet, text or post anything about this
trial or your thoughts or opinions about any issue in this case to any person?
No jurors responded affirmatively.
Regarding Instruction 2, the trial court changed to the past tense certain clauses from
MAI-CR3d 302.02, as follows:
You are not to assume as true any fact solely because it was included in or
suggested by a question asked a witness. A question is not evidence, and may be
considered only as it supplies meaning to the answer.
From time to time the attorneys made objections. They have a right to do so and
in doing that, they were only doing their duty as they saw it. You were to draw no
inference from the fact that an objection has been made.
If the court sustained an objection to a question, you will disregard the entire
question and you should not speculate as to what the answer of the witness might
have been. The same applies to exhibits offered but excluded from the evidence
after an objection was sustained. You will also disregard any answer or other
6
matter which the court directed you not to consider and anything which the court
orders stricken from the record.
The opening statements of attorneys are not evidence. Also, you must not
consider as evidence any statement or remark or argument by any of the attorneys
addressed to another attorney or to the court. However, the attorneys may enter
into stipulations of fact. These stipulations become part of the evidence and are to
be considered by you as such.
The trial court made no inquiries whether jurors comported with Instruction 2’s directives. Nor
did it give MAI-CR3d 300.06 in any form.
The parties made their closing arguments and the case was submitted to the jury. As
required by our precedent, see State v. Christian, 184 S.W.3d 597, 603 (Mo. App. E.D. 2006),
the jury was instructed on both the burglary charge and the lesser-included offense of first-degree
trespass. The jury found Defendant guilty of burglary in the first degree after a three-day trial.
In a motion for judgment of acquittal or, alternatively, for new trial, Defendant raised for
the first time the trial court’s failure to give the preliminary jury instructions. The trial court
denied the motion, found Defendant to be a prior and persistent offender, and sentenced him to
twenty years’ imprisonment. The trial court entered judgment against Defendant, and this timely
appeal followed.
Defendant assigns five errors to the trial court. Three arguments stem from the trial
court’s failure to read MAI-CR3d 300.06, MAI-CR3d 302.01, and MAI-CR3d 302.02 to the jury
before opening arguments. Defendant further challenges the sufficiency of the evidence to
support his conviction, as well as the trial court’s decision not to grant a mistrial after it revealed
Defendant’s dismissed resisting arrest charge to the venire panel.
Because we find the trial court’s failure to read MAI-CR3d 300.06, 302.01, and 302.02 at
the beginning of the case resulted in plain error and is dispositive of this appeal, we address only
the claims of instructional error.
7
Standard of Review
Rule 28.03 3 prohibits a party from assigning error to a trial court’s failure to give an
instruction unless the party objects to that failure both during trial and in a motion for new trial.
Here, Defendant did not object to the trial court’s failure to give the preliminary instructions, and
correctly acknowledges that he did not preserve his claims of instructional error for review.
Defendant therefore requests plain error review under Rule 30.20.
The State initially counters that cases like State v. Boyd and State v. Hodge, in which this
court declined to exercise plain error review over failures to give a mandatory instruction,
preclude any plain error review here. See Boyd, 600 S.W.2d 97, 100 (Mo. App. E.D. 1980);
Hodge, 600 S.W.2d 400, 401 (Mo. App. S.D. 1983). Insofar as those cases stood for the
proposition that failing to object to instructional error at trial precludes any appellate review,
they have clearly been supplanted by State v. Wurtzberger. There, the Supreme Court of
Missouri clarified that Rule 28.03 does not trump Rule 30.20, and that a party’s waiver of
appellate review does not extend to unpreserved claims of plain error. Wurtzberger, 40 S.W.3d
893, 897–98 (Mo. banc 2001). Under Rule 30.20, we accordingly have discretion to consider
unpreserved claims of error affecting substantial rights if manifest injustice or a miscarriage of
justice would otherwise occur. State v. Dudley, 475 S.W.3d 712, 716 (Mo. App. E.D. 2015).
We will affirm unless we find that the trial court committed an error which caused
manifest injustice or a miscarriage of justice. State v. Russell, 462 S.W.3d 878, 882 (Mo. App.
E.D. 2015). On plain error review, the appellant bears the burden of showing the occurrence of
3
All rule references are to Mo. R. Crim. P.
8
plain error resulting in manifest injustice or a miscarriage of justice. State v. Myles, --- S.W.3d --
--, 2015 WL 5231606, at *3 (Mo. App. E.D. 2015). The analysis proceeds in two steps. State v.
Smith, 370 S.W.3d 891, 896 (Mo. App. E.D. 2012) (internal citation omitted). First, we examine
whether, on the face of the claim, an evident, obvious, and clear error has occurred. Id. If we so
conclude, we may proceed to the second step, where we consider whether manifest injustice or a
miscarriage of justice actually resulted. Id.
Discussion
The trial court’s failure to read preliminary instructions meets the first prong of plain
error review. “Whenever there is an MAI-CR instruction” applicable under the law and Notes on
Use, that instruction “shall be given or used to the exclusion of any other instruction or verdict
form.” Rule 28.02(c) (emphasis here). The instructions at issue here are mandatory. Note on Use
2 to MAI-CR3d 300.06 requires that “[t]his instruction must be read immediately after the jury is
sworn and before reading MAI-CR3d 302.01 and 302.02. It will not be reread to the jury at the
conclusion of the evidence and will not be numbered or given to the jury when it retires to
deliberate.” Note on Use 2 to MAI-CR3d 302.01 requires “[t]his instruction will be Instruction
No. 1, and will be read immediately following MAI-CR3d 300.06.” Finally, Note on Use 2 to
MAI-CR3d 302.02 provides: “[t]his instruction will be Instruction No. 2, and will be read
immediately following MAI-CR3d 302.01.” On its face, therefore, the trial court’s failure to give
the three mandatory instructions immediately after swearing in the jury is an evident, obvious,
and clear error. See State v. Neal, 304 S.W.3d 749, 754 (Mo. App. S.D. 2010) (failure to give an
instruction in accordance with an MAI-CR or any applicable Notes on Use is error, the
prejudicial effect to be judicially determined).
9
Even when clear and obvious, instructional error seldom constitutes plain error. Myles,
2015 WL 5231606, at *3. Plain error will be found only when the claimed error actually resulted
in manifest injustice or a miscarriage of justice. State v. Smith, 370 S.W.3d at 896. “Manifest
injustice or miscarriage of justice” is not an easy phrase to define. State v. Doolittle, 896 S.W.2d
27, 29 (Mo. banc 1995) (internal citation omitted). It results when the trial court has so
misdirected or failed to instruct the jury that it is apparent the error affected (or, as some cases
describe it, “tainted”) the verdict. Myles, 2015 WL 5231606, at *5; Bolden v. State, 423 S.W.3d
803, 813 (Mo. App. E.D. 2013).
Some cases (and the State’s argument here) conflate the issue of whether an error taints
the verdict with the phrase “outcome determinative.” See, e.g., State v. Smith, 293 S.W.3d 149,
150 (Mo. App. S.D. 2009); State v. Jones, 296 S.W.3d 506, 513 (Mo. App. E.D. 2009). We
reject the notion that manifest injustice or miscarriage of justice can be so narrowly defined. The
convergence of the two concepts is understandable given that plain instructional error typically
results when the judge affirmatively instructs the jury, as opposed to here, where the judge’s
error is one of total omission. See, e.g. State v. Neal, 328 S.W.3d 374, 383 (Mo. App. W.D.
2010) (use of incorrect instruction totally excused State from its burden of proof); State v. Paro,
952 S.W.2d 339, 341–42 (Mo. App. E.D. 1997) (given instruction misstated elements of offense
and overstated maximum term of imprisonment). Although a finding of “outcome determinative”
naturally leads to a holding of manifest injustice or miscarriage of justice, the converse does not
follow. When an instruction is actually given, a reviewing court can discern whether a jury
following that instruction could have arrived at a verdict based on insufficient evidence or
misstated law. But where, as here, an appellate court has no logical trail to follow, using an
“outcome determinative” test precludes a complete examination of whether the trial court has “so
10
misdirected or failed to instruct the jury” that the verdict was tainted. State v. Magnum, 390
S.W.3d 853, 861 (Mo. App. E.D. 2013) (emphasis here).
Regarding the effect of the absence of instructions, we find guidance in two cases: State
v. Williams and State v. Smith. In Williams, the Supreme Court of Missouri addressed, on plain
error review, the prejudicial effect of failing to submit to the jury (in written form) the
parenthetical note-taking portion of MAI-CR3d 302.01. Williams, 97 S.W.3d 462, 472 (Mo.
banc 2003). Though the trial court’s failure was “technically erroneous,” the court held the error
fell short of a miscarriage of justice because, by reading the instruction aloud, “the trial court
provided the jury with sufficient guidance” regarding the proper role of notetaking. Id.
In Smith, our Western District colleagues used Williams’ “sufficient guidance” standard
to find plain error where a trial court failed to read MAI-CR3d 302.01’s parenthetical note-taking
section to the jury, despite the fact jurors were allowed to take notes. 4 Smith, 154 S.W.3d 461,
463 (Mo. App. W.D. 2005). That instruction admonishes the jury, inter alia, that notes taken
during trial are not evidence, that notes should not be assumed to be more accurate than juror
recollections, and that note-taking may interfere with each juror’s ability to observe the evidence
and witnesses as they are presented. Id. at 464; MAI-CR3d 302.01.
At the foundation of Smith’s reasoning lay the observation that the Missouri Supreme
Court, by mandating that the note-taking language be included in the first instruction, “obviously
believed that there was potential for abuse from note-taking by jurors, unless they were given
guidance . . . and that the [other] existing mandatory instructions were not sufficient to provide
that guidance.” Id. at 470. The Smith panel first compared the contents of the missing instruction
to other instructions and oral statements, and identified where other directives were “functional
4
The trial court in the instant case likewise failed to read MAI-CR3d 302.01’s parenthetical
information, but the record does not reveal whether the jury was permitted to take notes and this
is not a claimed error in this appeal.
11
equivalents,” i.e. whether they provided jurors with the same information as MAI-CR3d 302.01.
Id. at 466–70. For example, some of the information provided to jurors before recesses would
have implied that jurors could not discuss their notes, a prohibition also found in MAI-CR3d
302.01. Id. at 469. But much of the information included in the note-taking instruction was not
given elsewhere during trial, and in any event came in piecemeal fashion, thereby de-
emphasizing for the jurors the importance of their responsibility to focus on the evidence. Id. at
471.
Our colleagues identified grave concerns about the jury’s ability to perform its fact-
finding mission despite the lack of guidance. The trial court did not warn jurors of the fact that
note-taking could interfere with the ability to listen to the evidence and observe the witness,
thereby failing to remind note-taking jurors “to minimize the resulting distraction so they would
not be abdicating their responsibilities . . . to listen to the evidence and observe witnesses.” Id. at
471. That concern, that jurors would rely on notes rather than listen and observe the evidence
(and remember the evidence individually), is one of the very reasons MAI-CR3d 302.01 exists.
Id. at 470. Further, our colleagues highlighted the importance of the jury’s understanding of
precisely what is (and what is not) “evidence.” Failing to read MAI-CR3d 302.01 allowed the
jury to assume their notes were evidence: it was a “stretch to believe that [admonitions from
other instructions, including MAI-CR 302.02] were the equivalent of advising the jurors, as
required by MAI-CR3d 302.01, that their notes were not evidence.” Id. at 470.
Equally vital to Smith’s outcome was the fact that the missing instruction should have
been given at the beginning of the case. In “mandating that the note-taking information be read
to the jurors at the commencement of the trial, it is . . . obvious that the [Supreme] Court
believed that it was vital that jurors were made aware of [the possibility of being distracted from
12
the evidence] from the beginning.” Id. at 470–71. The jury’s duty to listen to the evidence and
observe the witnesses begins as soon as the first witness takes the stand, so the warning not to
over-rely on notes “would be useless, unless given at the beginning of trial.” Id. at 471.
We find Smith’s approach consonant with the weighty interests implicated here: the roles
of jury and judge in our criminal justice system. The right to an impartial jury is enshrined in
both the federal and state constitutions. U.S. Const. amend. VI; Mo. Const. art. I, sec. 18(a). The
right to a jury trial is no procedural formality; it is a fundamental reservation of power in our
constitutional structure, meant to stand as a bulwark against “judicial despotism,” U.S. v.
Booker, 543 U.S. 220, 238–39 (2005), and to ensure the people’s ultimate control in the
judiciary, Blakely v. Washington, 542 U.S. 296, 305–06 (2004). Trial by jury has been called the
“most priceless” safeguard for the preservation of individual liberty. Irvin v. Dowd, 366 U.S.
717, 721 (1961). Under the Constitution, the institution of the criminal trial purports “to provide
a fair and reliable determination of guilt, and no procedure or occurrence which seriously
threatens to divert it from that purpose can be tolerated.” Estes v. Texas, 381 U.S. 532, 564
(1965) (Warren, C.J., concurring).
Perhaps the jury’s most critical role is to assess evidence: a criminal defendant is entitled
to a “panel of impartial, ‘indifferent’ jurors [whose] verdict must be based upon evidence
developed at the trial.” Morgan v. Illinois, 504 U.S. 719, 727 (1992) (internal citation omitted)
(emphasis here). 5 See also Ring v. Arizona, 536 U.S. 584, 598 (2002) (by the time the Sixth
Amendment became law, the “jury’s role in determining critical facts … was entrenched.”)
(internal citation omitted). Instructions to avoid prematurely forming opinions about a case’s
5
Insofar as we use them to establish a baseline for the jury’s constitutional function, U.S.
Supreme Court cases regarding the Sixth Amendment are instructive because, when it comes to
the right to an impartial jury, Missouri’s constitution affords greater protections than the federal
constitution. State v. Lang, 795 S.W.2d 598, 600 n. 1 (Mo. App. E.D. 1990).
13
merits help a juror base her verdict on the evidence; once a juror forms an opinion, she can no
longer be impartial. Irvin, 366 U.S. at 722.
To safeguard the jury’s fact-finding role, courts must be alert to factors that may
undermine fairness in the fact-finding process, and must carefully guard against the dilution of
the principle that guilt must be established “by probative evidence” and beyond a reasonable
doubt. Estelle v. Williams, 425 U.S. 501, 503 (1976). Though the impact of a particular practice
on a verdict cannot always be fully determined, the “probability of deleterious effects on
fundamental rights calls for close judicial scrutiny.” Id. at 504. Courts must do the best they can
to evaluate the likely effects of a particular procedure, based on reason, principle, and common
human experience. Id. When there is an unacceptable risk of impermissible factors affecting a
jury’s verdict, a proceeding may be inherently prejudicial. Holbrook v. Flynn, 475 U.S. 560, 570
(1986). See also State v. Neal, 304 S.W.3d 749, 755 (Mo. App. S.D. 2010) (when used while
assessing erroneous jury instructions, “prejudice” means the potential for confusing or
misleading the jury).
A jury’s execution of its duty necessarily depends on the instructions it receives from the
court. In Missouri, the trial court’s duty to instruct the jury on the law was established as early as
1876. See State v. Martin, 602 S.W.2d 772, 775 (Mo. App. E.D. 1980) (citing State v. Lane, 64
Mo. 319 (1876)). Towards the end of the nineteenth century, Justice Joseph Story explained the
intertwined duties of judge and jury:
[It is] the duty of the court to expound the law, and that of the jury to apply the
law as thus declared to the facts as ascertained by them. In this separation of
functions of court and jury is found the chief value, as well as safety, of the jury
system. Those functions cannot be confounded or disregarded without
endangering the stability of public justice, as well as the security of private and
personal rights.
14
Sparf v. United States, 156 U.S. 51, 106 (1985). “Upon the [trial] court rests the responsibility of
declaring the law.” Id. (emphasis here). That responsibility is related to the duty to define and
explain technical terms which the jury may otherwise misapply. State v. Jackson, 369 S.W.2d
199, 2015 (Mo. 1963).
In finding prejudicial one trial court’s failure to read accurately a mandatory preliminary
instruction (MAI-CR 1.02, which at that time instructed voir dire panel members vis-à-vis their
behavior), we highlighted the importance of a judge accurately and consistently delivering
guidance to the jury. In doing so, we underscored the importance of Missouri’s pattern
instructions:
MAI-CR instructions are the product of a Special Committee of the Missouri Bar
appointed for the purpose of formulating pattern instructions for use in criminal
cases followed by an interchange of ideas and redraftsmanship in cooperation
with the Supreme Court towards the end that there be fewer reversals of
convictions by reason of faulty instructions and so that statewide uniformity in the
reading of instructions to juries in criminal cases would be achieved. The
particular [preliminary] instruction here … is the product of thorough study by
representatives of the circuit bench, prosecutors, defense counsel and law
professors knowledgeable in the administration of criminal justice, adopted only
after submission to many members of the Bar and consideration by both the
Board of Governors of the Missouri Bar and the members of the Supreme Court.
The Supreme Court mandated its reading to the jury by all trial judges of this state
… We can conceive of no reason why these directions of the Supreme Court
should not be followed by the trial courts of Missouri.
[. . .] If we, the judiciary, constantly give currency to this practice, the value and
benefits to be derived from the adoption of pattern instructions and the time and
efforts extended by our committee of the Missouri Bar on Criminal Pattern
Instructions will both be lost.
State v. Clifton, 549 S.W.2d 891, 896 (Mo. App. 1977). Strict compliance with pattern
instructions also promotes efficient appeals: we “could well do without the additional chore of
examining those cases where” parties assign error to “unnecessary deviations, modification[,]
subjective judicial constructions,” or, as here, deletions. Id. (internal quotation marks omitted).
15
Before turning to the case at hand, we finally note that trial judges generally have great
influence over jurors, who are “quite sensitive” to any indications of the judge’s belief, and are
“inclined to draw conclusions” based on a judge’s behavior. State v. Montgomery, 251 S.W.2d
654, 657 (Mo. 1952). Relatedly, reviewing courts always presume jurors follow the trial court’s
instructions, even if the parties have provided incorrect legal theories during trial. See State v.
Cornelious, 258 S.W.3d 461, 469 (Mo. App. W.D. 2008).
In the instant case, we conclude the trial court’s failure to read MAI-CR3d 300.06,
302.01, and 302.02 left the jury with insufficient guidance. (Weighing such intertwined
allegations of error together is within our discretion on plain error review, so we need not decide
whether failing to read one of two of the three missing instructions would hypothetically
constitute plain error. See State v. Callahan, 651 S.W.2d 186, 192 (Mo. App. W.D. 1982).) By
changing some text of MAI-CR3d 302.01 to the past tense and questioning the jury, the trial
court attempted to retroactively address some issues caused by failing to read those instructions
early in the case. The questions posed to the entire jury (e.g., “Did any of you conduct any
independent research”) may have addressed whether jurors discussed the case among
themselves, tweeted / e-mailed / blogged / texted about the case, independently researched the
allegations against Defendant, or visited the scene of the alleged crime as forbidden by the
instruction.
However, multiple directives related to the jury’s fact-finding mission went unheard
altogether, or were given so late as to be “useless.” See Smith, 154 S.W. 3d at 471. Most
critically, the failure to read MAI-CR3d 302.01 and 302.02 left the jury without even the
definition of evidence. Notably, neither the judge’s comments and rulings nor the attorneys’
arguments and objections constitute evidence, as stressed in the instructions. But here the jury
16
was left in the dark on those matters, even though every case must be decided “only by the
evidence presented in the proceedings in [the] courtroom” (a directive that also went unheard
before the evidence began, when it mattered most). The missing MAI-CR3d 302.01 would have
offered not only a warning to avoid distractions, but also guidance in assessing evidence as it is
presented. The jurors should have been told to consider the witnesses’ manner while testifying,
the ability and opportunity of a witness to observe and remember matters, a witness’ bias or
prejudice, and the reasonableness of testimony in the context of the entire case. Instead, the jury
here was left rudderless as to its duty to examine the evidence.
Further, the trial court made no inquiries whether the jury had complied with the
cautionary wording of MAI-CR3d 302.02, even though it changed the tense of portions of that
instruction. We accordingly conclude that the jury could have assumed as true facts solely
because they were included in or suggested by a question; that any juror could have drawn a
negative inference against Defendant because an objection was made; and that the jury could
have speculated as to the answer of any question to which an objection was sustained. See MAI-
CR3d 302.02. Nor did the trial court attempt to gauge whether the jury followed instructions that
go to the jury’s impartiality and duty to focus on the evidence. For example, MAI-302.01 tells
the jury to keep an open mind until all evidence has been presented. But instead of hearing that
instruction, especially without MAI-CR3d 300.06’s road map of the proceedings, which would
have informed the jury when it could begin drawing conclusions about what it had seen and
heard, the jury was left to form premature opinions about the case’s merits, thereby casting grave
doubt on the jury’s impartiality. See Irvin, 366 U.S. at 722.
The State contends that our result should be guided by State v. Boyd, 600 S.W.2d 97
(Mo. App. E.D. 1980), where we declined to apply plain error review to a trial court’s failure to
17
read MAI-CR 1.08(a) at the first recess. At the time, MAI-CR 1.08(a) warned jurors not to
discuss any subject connected with the trial, or form or express any opinion about it, or access
any media related to the case. At subsequent recesses, a shorter but similar warning was given
via MAI-CR 1.08(b). Deeming the instruction “essentially procedural” (as opposed to
substantive instructions given before closing arguments and submission of the case), we opined
the issue had not been preserved for review. Boyd, 600 S.W.2d 97, 100 (Mo. App. E.D. 1980).
Boyd is distinguishable on several grounds. First, as discussed above, Boyd broadly
applied Rule 28.03 to foreclose any review of unpreserved instructional error, a holding
supplanted by Wurtzberger’s rule that plain error review cannot be waived. Secondly, the Boyd
court noted that MAI-CR 1.08(b), which largely tracks MAI-1.08(a), was repeated at subsequent
recesses, thereby lessening the prejudice against the losing criminal defendant. The instant jury
received no such cumulative, parallel guidance. 6 Moreover, the instruction in Boyd has
undergone material revision since we decided that case. In contrast to MAI-CR 1.08, which was
enacted in 1974 and simply warned jurors against performing outside research or discussing the
trial, see State v. Abbott, 547 S.W.2d 853, 85 (Mo. App. 1977), the modern equivalent also
instructs jurors: “[i]t is important that your decision be based only on the evidence presented to
you in the proceedings in the courtroom,” MAI-CR3d 300.04. Such language underscores for the
jury the singular importance of untainted evidence, and by invoking the word “evidence”
6
We acknowledge that MAI-CR3d 300.04.1 and 300.04.2 were given at the first recess and
subsequent breaks in this case. Those “reminder” instructions generally mirror MAI-CR3d
302.01’s prohibitions on performing research or communicating about the case, which may have
lessened the failure to give those admonitions at the outset. While the reminder instructions do
prohibit jurors from forming an opinion about the case, we find that warning (which is buried in
the middle of the instructions) insufficient to atone for not explicitly instructing jurors about
remaining impartial at the beginning of the case, as instructed by the MAI-CR committee. See
Smith, 154 S.W.3d at 471 (by offering some missing instructional information in “piecemeal”
fashion rather than at the beginning of the case, the trial court de-emphasized the importance of
the jury’s duties). And in any event, MAI-CR3d 300.04.1 incorporates the word “evidence,” a
vital term which remained undefined until after all the evidence was introduced.
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depends on the jury’s comprehension of the distinctions between evidence on one hand, and
questioning, objections, and argument on the other.
Here, those distinctions should have been made by giving MAI-CR3d 302.02. Instead,
the trial court gave no guidance on the matter until all evidence had been introduced, all
objections had been made, and all questioning had stopped. Though the MAI-CR committee
deemed it vital that the jury was informed of its duties to remain impartial and focus on the
evidence “from the beginning” of the case, Smith, 154 S.W.3d at 470–71, in this case the jury
received no guidance on those issues until after the fact. The jury heard all the evidence without
being told what evidence is. It heard all the arguments, questions, and objections without
knowing how to distinguish them from, and consider them less important than, evidence. In
Smith, the mere failure to warn the jury about the potential perils of note-taking-related
distraction was plain error. The deleterious effects on the jury’s ability to assess the evidence and
remain impartial in this case are even graver. Those effects require us to conclude that the verdict
must be set aside.
We therefore hold that the jury did not receive “sufficient guidance” from the trial court,
resulting in a manifest injustice or miscarriage of justice. Failing to give instructions based on
MAI-CR3d 300.06, 302.01, and 302.02 at the outset of the trial was accordingly plain error.
Conclusion
The judgment of the Defendant’s conviction for burglary in the first degree, Section
569.160, is reversed, and the cause is remanded for a new trial in accordance with this opinion.
____________________________
Mary K. Hoff, Judge
Robert G. Dowd, Jr., Presiding Judge and Roy L. Richter, Judge, concur.
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