Evaluating plain error

James Egan
James Egan is a lawyer with the Central Appellate Office of the Missouri Public DefenderSystem. He started in the trial division in October 2003 and transferred to the appellate division inJanuary 2019. The views expressed in this article are his alone and do not express the views of the Missouri State Public Defender System.

“To preserve a claim of error, counsel must object with sufficient specificity to apprise the trial court of the grounds for the objection.”³ In order for the objection to be considered timely, it must be made at the time the issue arises before the court; if there is an objection to the admission of evidence, objecting to its admission in a pre-trial motion is not enough to preserve the issue.⁴ This is because a ruling on a pre-trial motion is subject to change.⁵ Therefore, the objection must also be made at the time the evidence is actually introduced.⁶ “Missouri courts strictly apply these principles based on the notion that trial judges should be given an opportunity to reconsider their prior rulings against the backdrop of the evidence actually adduced and in light of the circumstances that exist when the questioned evidence is actually proffered.”⁷ Likewise, “[t]he purpose of a motion for new trial is to allow the trial court the opportunity to reflect on its action during the trial.”⁸ Additionally, “the point raised on appeal must be based upon the same theory presented at trial.”⁹

The most common errors have to do with the admission or exclusion of evidence. “A trial court has broad discretion to admit or exclude evidence at trial.”¹⁰ “[The] standard of review in addressing the admission or exclusion of evidence at trial is for abuse of discretion.”¹¹ A trial court’s “discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.”¹²

If evidence is wrongly admitted, the error is properly preserved. If there is a reasonable probability that without the error there would have been a different result, the trial court’s error is reversible.¹³ If the error is preserved but there is not a reasonable probability the result would be different, the trial court’s error is harmless.¹⁴

“[T]he erroneous exclusion of evidence in a criminal case creates a rebuttable presumption of prejudice. That is because a defendant in [a] criminal case has a constitutional right to present a complete defense. The state may rebut this presumption [of prejudice] by proving that the error was harmless beyond a reasonable doubt. In assessing whether the exclusion of evidence was harmless beyond a reasonable doubt, the facts and circumstances of the particular case must be examined, including the nature of the charge, the evidence presented, and the role the excluded evidence would have played in the defense’s theory.”¹⁵

If the error is not properly preserved, then the trial court’s error is considered plain.¹⁶ Plain error is governed by Supreme Court Rule 30.20, which states:

Allegations of error that are not briefed or are not properly briefed on appeal shall not be considered by the appellate court except errors respecting the sufficiency of the information or indictment, verdict, judgment, or sentence. Whether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

“Rule 30.20 alters the general rule by giving appellate courts discretion to review plain errors affecting substantial rights may be considered in the discretion of the court . . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. Plain error review is discretionary, and [an appellate court] will not review a claim for plain error unless the claimed error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. The plain language of Rule 30.20 demonstrates that not every allegation of plain error is entitled to review. The plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review. Unless manifest injustice or a miscarriage of justice is shown, an appellate court should decline to review for plain error under Rule 30.20. Finally, the defendant bears the burden of demonstrating manifest injustice entitling him to plain error review.”¹⁷

“Plain error.” For many trial lawyers, this phrase will send a chill down the spine for fear of not preserving an issue for appellate review. For many appellate lawyers, the phrase “plain error” will also invoke feelings of angst. While part of this frustration is directed at the trial lawyer for not adequately preserving the issue for appellate review, the other part is directed at rules which seem overly rigid for their intended purpose.

This article looks at two issues regarding plain error. The first part argues that a claim of error should not be considered “plain” if the error is preserved everywhere but in a motion for new trial. Second, this article addresses a perceived concern that Missouri appellate courts are becoming more hostile to granting plain error review on the issue of a unanimous jury verdict.

Plain Error Arising from a Failure to Address a Claim in a Motion for New Trial
A recent opinion from the Supreme Court of Missouri illustrates the current controversy circling the notion of whether plain error should arise from failure to include a claim in the motion for new trial. In State v. Brandolese, the defendant was convicted of domestic assault in the second degree and armed criminal action (“ACA”).¹⁸ One of the defendant’s points on appeal was that the trial court failed to disqualify a juror.¹⁹ Specifically, the defendant argued that the trial court “plainly erred in failing to strike for cause [a juror] because she was the sister of an assistant prosecuting attorney who participated in [the defendant’s] case.”²⁰ The defendant argued that this violated § 494.470.1²¹ At trial, the defense counsel argued this juror should be stricken for cause because of her relationship with the assistant prosecutor.²² The defense counsel did not raise the issue in his motion for new trial.²³ The defense counsel also did not raise the claim at trial that allowing this particular juror would have violated § 494.470.1.²⁴ A narrow majority of the court declined to grant relief because it believed the defendant “ha[d] not demonstrated the alleged error led to manifest injustice warranting plain error review.”²⁵

When the Brandolese case was in front of the Missouri Court of Appeals-Western District, that court held the error was plain because the lawyer did not put the issue in the motion for new trial.²⁶ When the case was in front of the Supreme Court of Missouri, however, the Court indicated the fact that the defense counsel had not specifically brought up § 494.470.1 also made the claim unpreserved.²⁷ The dissent pointed out this conclusion contradicted the Court’s reasoning from State v. Amick, which held that a claim of error was preserved, even though the defense counsel did not cite the relevant statute at trial or in his motion for new trial, since a claim of error was made and “trial judges are presumed to know the law and apply it in their decisions.”²⁸ The dissent, however, did acknowledge that the issue was unpreserved because the claim of error was not in the motion for new trial.²⁹ Thus, the main reason for holding that the issue was unpreserved was due to it not being raised in a motion for new trial.

Both the majority and dissenting opinions, which held that the issue was not preserved because the issue had not been raised in a motion for new trial, demonstrate a flawed approach to issue preservation. As the Supreme Court of Missouri stated in Amick, the rules of review are chiefly designed to give the trial court the opportunity to rule on an issue.³⁰ But in Brandolese, while the trial court did not have “the opportunity to reflect on its action during the trial,”³¹ the trial court did have the opportunity to make a ruling and to consider the arguments on the issue. This key requirement was satisfied.

In Amick, the Court stated the “rules for preservation of error for review are applied, not to enable the court to avoid the task of review, nor to make preservation of error difficult for the appellant, but, to enable the court — the trial court first, then the appellate court — to define the precise claim made by the defendant.”³² However, in addition to the Brandolese Court’s possible overruling of Amick, sub silentio, there is also case law that seems to acknowledge that one purpose of requiring a motion for new trial was “to narrow the issues on appeal[.]”³³ In light of this, as well as the frequency of fully litigated trial issues being relegated to plain error review due to lack of inclusion in a motion for new trial, one has to wonder if part of the reason for this requirement is to make appeals more difficult.

It is true that a trial court needs to have the opportunity to reconsider a ruling made on a pre-trial motion “against the backdrop of the evidence actually adduced”³⁴ at the trial, and it is true that a trial court could plausibly reverse or, at the very least, amend its pre-trial ruling. However, with very limited exceptions, it is unlikely that trial courts do any reflection about their rulings they made during the trial when the trial is over. This is not meant as a criticism of trial courts. Quite the contrary. Trial judges genuinely listen and consider the arguments made by counsel, including reading case law and relevant statutes. Once the court has made its decision, however, it is final.

Trials are exhausting and time consuming and only under very exceptional circumstances, such as a new case directly on point handed down between the time of the verdict and sentencing, is a trial court going to throw out the trial and have everyone go through the process again.³⁵ Moreover, even if a new case was handed down, or some other exceptional circumstance existed that caused a trial judge to have doubts about his or her prior ruling, most, if not all, trial judges will defer to the appellate court. Motions for new trial are usually taken up at sentencing. Victims are present in the courtroom and expect the defendant to be sentenced. Practically speaking, motions for a new trial are looked at as nothing more than a formality, their denial perfunctory.

Ironically, my success in getting a motion for a new trial in a misdemeanor bench trial, in which a motion for a new trial was not required,³⁶ illustrates why requiring a motion for a new trial is a needless burden. The case was a misdemeanor domestic assault trial. There were two witnesses, both police officers. The complaining witness did not testify. The trial lasted less than 45 minutes and was sound-recorded. Over objection, one of the police officers testified to what the complaining witness told him. The objection was that her statements were inadmissible as they violated the right to confrontation under the Sixth Amendment. The trial court overruled the objection and admitted the testimony. The trial court found the client guilty. A motion for new trial, which renewed the confrontation issue, was filed. The parties obtained recordings of the trial to help prepare arguments. The trial court heard arguments, listened to the trial testimony of the officer, and granted the motion.

The bench trial in this case consisted of two witnesses in a proceeding that lasted less than 45 minutes. It was sound-recorded and was easily accessed and listened to. Most importantly, a single issue was dispositive. Without the erroneously admitted testimony, there would have been no evidence, not to mention insufficient evidence, to convict. Because it was sound-recorded and took up very little time, the parties and the trial court were able to listen to the relevant trial testimony. Thus, it was an easy issue to resolve.

A jury trial, on the other hand, is longer than 45 minutes, usually has several witnesses, and is often transcribed by a court reporter. The claim of error is usually not as dispositive as the one in the misdemeanor bench trial, and neither the parties nor the trial court can go back and review the trial. Thus, when claims of error are presented in a motion for new trial, the trial court and the parties are not going to be able to access the relevant testimony that the claim of error is referring to. Moreover, even if the trial counsel were able to convince the trial court its prior ruling was erroneous, he or she would still have to convince the trial court that the error was prejudicial enough to warrant a new trial. “Reversal due to an evidentiary error requires a showing of prejudice. If there is a reasonable probability that the trial court’s error affected the outcome of the trial, there is prejudice.”³⁷ “In evaluating whether trial court error was prejudicial, we consider the whole record and do not view the evidence in the light most favorable to the judgment.”³⁸ Given the complexity and length of a jury trial, the lack of access to a transcript to review any relevant testimony, and the inability for the parties to fully develop their arguments since they, too, cannot access the transcript or consider the error in the context of the entire record, there is simply no way a trial court can determine if a claimed error was prejudicial enough to warrant a new trial. For all these reasons, a motion for new trial seems to be a needless exercise and there is no logic in treating a claim of error as not preserved simply because it is not addressed in a motion for new trial.

Moreover, there is simply no logic in giving equal treatment to a claim that is presented to the trial court during trial but not in a motion for new trial compared to a claim that is never presented to the trial court. During oral arguments in the Brandolese case, one judge asked the defendant’s lawyer if the case was under a plain error standard.³⁹ The lawyer acknowledged it was but argued it was only on plain error review because of the failure to put the claim in a motion for new trial; therefore, “it [was] on a different level[.]”⁴⁰ Another judge, however, made it clear he did not agree, saying, “How can there be different levels of plain error?”⁴¹

Fundamental fairness, however, requires courts to treat these situations differently, perhaps not with different levels of plain error, but in a way that distinguishes between not raising the issue in a motion for new trial and not raising the issue at all. Not only is there no logical reason for treating errors not raised in a motion for new trial the same as a claim of error that is never raised, but due to how the rules stand presently, it is actually better for the client in these circumstances for his trial counsel to have never raised the claim at all. The reason is simple. If his lawyer never raises claim at all, his post-conviction lawyer can argue that the counsel was ineffective for not raising the issue during trial and quite possibly could obtain relief. However, if the issue is raised at trial but not in a motion for a new trial, the defendant has no avenue for relief, as failure to raise a claim of error in a motion for new trial is not cognizable in a post-conviction claim. “As a general rule, post-conviction claims based on counsel’s failure to adequately preserve issues for appeal are not cognizable” in a post-conviction claim.⁴² “Even constitutional claims that could have been raised on direct appeal will not be considered in a post-conviction proceeding except where fundamental fairness requires otherwise, and then only in ‘rare and exceptional circumstances.’”⁴³ Thus, under the current rules, a defendant can sometimes be in a better position to obtain relief if his lawyer is less effective. This defies logic and fundamental fairness.

The rule requiring a lawyer files a motion for new trial to preserve issues for appeal needs to be changed. Ideally, the requirement that lawyers must raise claims of error in a motion for new trial should be removed. After all, they are not required in a bench trial. Does a trial court not need the opportunity to reflect on its decisions from a bench trial, too? In fact, given that in a bench trial, the judge is also the fact finder, the need to reflect may be even greater. Moreover, motions for new trial are not required in the federal system. Rule 51(b) of the Federal Rules of Criminal Procedure states:

A party may preserve a claim of error by informing the court — when the court ruling or order is made or sought — of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103.

“To preserve an error for appellate review, an objection must be timely and must clearly state the grounds for the objection.”⁴⁴ Rule 33 of the Federal Rules of Criminal Procedure allows a defendant to file a motion for new trial, and the court “may vacate any judgment and grant a new trial if the interest of justice so requires.” A motion for new trial is not required, however.

Given that a motion for new trial is not required in a bench trial or in the federal system, the requirement that a motion for new trial must be filed to preserve a claim of error in a jury trial needs to be re-examined.

One possible revision would be to allow the appellate lawyer to argue that when a claim of error was addressed at trial but not in a motion for new trial, the claim should be considered preserved unless an argument could be made that it was truly plausible that raising it in a motion for new trial would or should have resulted in the trial judge taking action. One example of such a circumstance would be if a new case on point was handed down in the 25-day period between a finding of guilt and the time the motion was due.

Another possibility would be to give the appellate court the discretion to treat the matter as preserved. Still another possibility would be to change the post-conviction rules to recognize claims of failure to raise a claim in a motion for new trial. Regardless of what change is made, one thing is clear: the current rule is not fair or logical. In the Brandolese case, it is inconceivable that the trial court would have changed its mind about the juror, and the matter should have been treated as if it were preserved.

For all these reasons, Missouri appellate courts should reexamine the wisdom of requiring the act of filing a motion for new trial to preserve a claim of error in a jury trial.

Plain Error in Jury Unanimity Cases
Regardless of whether the Court changes the rule, there will be times where the error on appeal is truly a plain error. Recently, one issue involving plain error that has been seen in appellate cases is that of jury unanimity. Article I, § 22(a) guarantees a defendant the right to a unanimous jury. In other words, when the jury votes to convict the defendant, all 12 jurors must convict him or her of the same crime. As the case of State v. Celis-Garcia⁴⁵ shows, however, the concept of jury unanimity is not always straightforward.

In Celis-Garcia, the defendant was convicted of two counts of statutory sodomy.⁴⁶ On appeal, the defendant argued that her constitutional right to a jury trial was violated because “the State presented evidence of multiple, separate acts,” but “the verdict directors failed to require the jury to agree to the specific acts she committed[.]”⁴⁷ The Supreme Court of Missouri agreed and reversed the convictions.⁴⁸ The claim of error was not preserved and was reviewed for plain error.⁴⁹ The Court held that because “the verdict directors misdirected the jury in a way that affected the verdict,” a manifest injustice occurred.⁵⁰

Numerous lawyers and courts have argued that the analysis from Celis-Garcia applied to their cases. However, even though 95 cases have cited Celis-Garcia, defendants in less than 10 cases have received any type of relief on the issue of jury unanimity.⁵¹ In addition to these reversals, the Supreme Court of Missouri, in State v. Ess,⁵² admonished the trial court to keep Celis-Garcia in mind when it reversed the defendant’s conviction on other grounds.⁵³ Interestingly, for the first four years after being decided, there were no reversals on Celis-Garcia grounds. Instead, these reversals have occurred in the last five years, after the Supreme Court of Missouri’s admonishment in Ess.

Despite this relatively low number of reversals, the Missouri Court of Appeals-Western District and Missouri Court of Appeals-Southern District have recently made it clear they are tired of granting plain error relief in this type of case. For example, in State v. Adams,⁵⁴ the Western District stated:

Though Celis-Garcia found plain error, notwithstanding the defendant’s tender of verdict directors that suffered the same defect as those submitted by the state, defendants in future multiple acts cases should not presume that they will enjoy a perpetual free pass to secure plain error review in these cases. Notwithstanding that the right to a unanimous jury verdict is an important constitutional principle, Celis-Garcia has been settled law for several years, rendering it more and more difficult to excuse a defendant’s failure to object to, and thus preserve, instructional error in multiple acts cases.

Similarly, there is virtually no excuse for the state or trial courts to continue to perpetuate instructional error (plain or otherwise) in multiple acts cases, when the roadmap for remediating instructional error was laid out in Celis-Garcia, and has been further developed in subsequent cases. There should be particular sensitivity to avoiding instructional error in multiple acts cases given that the failure to do so imposes a tremendous emotional burden on young victims who may be required to testify a second time.⁵⁵

Similarly, in State v. Snyder,⁵⁶ the Southern District cited the first paragraph from Adams in its decision to decline plain error review. Additionally, in State v. Davidson,⁵⁷ the Southern District held the trial counsel’s failure to object to verdict directors violating his client’s right to a unanimous jury verdict constituted trial strategy. In support of this holding, the court stated:

In the instant matter, the record indicates that defense counsel joined the State in adducing evidence of the “several acts” of molestation which could individually serve as the basis for criminal conviction. The record reflects that defense counsel did so in a strategic effort to show that Victim’s testimony, as a whole, was not credible. As the State points out in its brief:

If [defense] counsel had objected to the verdict director on jury-unanimity grounds, this might have resulted in the submission of multiple alternative verdict directors to address any jury-unanimity concerns identified in the objection. But making such an objection would have neither furthered nor benefitted [Davidson]’s trial strategy of painting Victim as a liar, nor achieved his goal of obtaining an acquittal. Multiple alternative verdict directors would have simply reminded the jury of the pervasiveness and magnitude of Defendant’s sexual abuse.… [Davidson]’s goal was not to ensure that the jury unanimously agreed on the same act in finding him guilty; [Davidson]’s strategy was to show that the allegations were fabricated and to obtain an outright acquittal.⁵⁸

The same rationale for denying relief was demonstrated by the Southern District in State v. Beerbower,⁵⁹ where the court held:

In the instant matter, the record reflects that defense counsel’s overall trial strategy was to show that the allegations of Victims were, as a whole, not credible, and to seek an outright acquittal. There was evidence of multiple acts of molestation against Victim 1 (in the manner described in Instruction No. 5) — if defense counsel objected on jury-unanimity grounds, this could very well have resulted in the submission of multiple alternative verdict directors to accommodate the multiple evinced instances of molestation by Beerbower against Victim 1. This was unlikely to serve defense counsel’s strategy of presenting Victim 1 as not credible, and ran the substantial risk of simply reminding the jury of pervasiveness and magnitude of Beerbower’s acts of molestation against Victim 1.

Defense counsel’s evident strategy was not to ensure that the jury unanimously agreed on the specific instance of molestation Beerbower committed against Victim 1 in Count I — rather, defense counsel’s strategy was to argue that the allegations of molestation were entirely fabricated, and to obtain an outright acquittal on all counts. While defense counsel’s strategy was ultimately unsuccessful, Beerbower does not demonstrate that it was unreasonable.⁶⁰

While these courts’ frustration may be understandable, these comments are inaccurate, and their takeaways can be misleading, for three reasons:

First, these comments imply that defense lawyers are deliberately withholding objection to the faulty instructions to have a second bite at the apple if the client is convicted. There is not a scintilla of evidence to support this allegation of sandbagging. Moreover, as an officer of the court, a trial lawyer should be afforded the presumption that his statement is truthful. Rule 4-1.1 requires a lawyer be competent, and a lawyer’s representation is presumed to be competent.⁶¹ Additionally, Rule 4-3.3 requires a lawyer to address a court with complete candor. Likewise, there should be a presumption that the lawyer has complied.

Second, denying relief on the grounds that the trial counsel made a strategic decision not to object requires a thorough evaluation and analysis from the record based on a “totality of the circumstances.”⁶² In State v. D.W.N., the Western District made specific references to the record and exhaustively discussed, in over four pages of analysis, how the record showed the trial counsel’s failure to object was due to trial strategy.⁶³ In particular, the D.W.N. court noted the record showed that the trial counsel knew the inadmissible testimony was not admissible and still did not object.⁶⁴ No such analysis was done in Davidson or Beerbower, and the Southern District’s holding that not objecting to the improper instructions was trial strategy is woefully unconvincing in both cases. Moreover, the reference to the state’s brief in Davidson did not support its decision at all. The state’s brief was full of speculation as to what might have happened if the defense counsel had objected and its argument (obviously adopted by the Southern District) is contradictory. If the defense counsel “joined the State in adducing evidence of the ‘several acts’”⁶⁵ “to show that Victim’s testimony…was not credible[,]”⁶⁶ then insisting on multiple verdict directors would not have “reminded the jury of the pervasiveness and magnitude of Defendant’s sexual abuse[,]”⁶⁷ but rather would have helped emphasize the fact that the child was making up the allegations.

Moreover, the Davidson court’s holding has the potential to create real problems for the defendant’s inevitable post-conviction claim. If the defendant in Davidson alleges his trial counsel was ineffective for not objecting to the improper instructions, and the trial lawyer testifies under oath that his failure to do this was not trial strategy, is the motion court allowed to find that credible? Or is the motion court allowed to make a finding that the trial strategy was not reasonable? Or is it bound by the Southern District’s holding from Davidson that it was trial strategy?

Finally, what about the prosecutor and the trial court? Do they get “a perpetual free pass?”⁶⁸ “[U]nder our law, the prosecutor has a duty to serve justice, not just win the case.”⁶⁹ “Further, trial judges are presumed to know the law and to apply it in making their decisions.”⁷⁰ Both prosecutors and trial courts have, at the very least, just as much responsibility to ensure that the jury is properly instructed as the defense lawyer. Ultimately, it is the trial court’s responsibility to correctly instruct the jury.⁷¹

Again, the judicial frustration of the appellate courts is understandable. But for whatever reason, the Celis-Garcia issue of a unanimous verdict continues to get missed by prosecutors, defense counsel, and trial courts alike, and it is not appropriate to lay responsibility completely upon the trial lawyer. If a defense lawyer has a motive to stay quiet so he can get a second bite at the apple on appeal, then a prosecutor has just as much incentive to stay quiet to increase his or her chances of obtaining a conviction, particularly now that the appellate courts have indicated they are not going to grant plain error relief.

Five things explain why the Celis-Garcia issue continues to be missed. First, defense lawyers with little experience are litigating this nuanced issue. Second, even experienced defense lawyers may not be up to date on the recent case law. Third, prosecutors are in the same boat as they too have crushing caseloads and are in court all the time. Fourth, trial courts are in the same situation as public defenders and prosecutors. They have dockets that are backed up, are frequently in court, and, like public defenders and prosecutors, might not have the time to keep up on the caselaw. Since most trial judges have not had a case reversed on Celis-Garcia grounds, it is not always an issue they are aware of.

Finally, trials are exhausting and by the time the instruction conference rolls around, the parties are frustrated, tired, and eager to get this case to the jury as soon as possible.

Given these difficulties, it is not unreasonable to require trial courts to go through a checklist to ensure that common mistakes with jury instructions are not overlooked. Perhaps a specific judicial checklist for certain kinds of cases would be helpful. Issues with unanimous verdicts tend to happen in child-sex cases, so one of the items for that checklist is that there are no Celis-Garcia issues. However, blaming only the trial lawyers, and, ultimately, the defendant, is not appropriate.

Apparently, this hostility is premised on the belief that if something is evident, obvious, and clear to the trial court, it should also be evident, obvious, and clear to the trial counsel. As the Snyder court observed:

A defendant’s attempt to show that the trial court committed evident, obvious and clear error where the defendant was represented by counsel at trial, however, also necessarily implicates that trial counsel’s failure to timely and properly object to such error. In other words, if the alleged error should have been evident, obvious, and clear to the trial court, it also should have been evident, obvious, and clear to trial counsel.⁷²

For two reasons, this premise is not necessarily true.

First, the perspective of a trial judge is one of an impartial arbiter with an objective perspective of what is happening in the trial, as opposed to that of an advocate. This difference in perspective allows a trial judge to perceive things that an advocate, with a narrower focus, might miss.

Second, while all members of the bar are presumed competent, this competence is not equal. It is often the case that a trial judge has had years of practice as a lawyer before becoming a judge, and this experience is often greater than the lawyers practicing in front of him or her. Moreover, a trial judge is in court all the time and getting daily practice in making evidentiary decisions and seeing the whole picture during a trial. For example, a trial judge will likely preside over more child-sex trials in a given period than a lawyer will represent defendants in child-sex trials. Thus, the trial judge is going to have more experience in addressing evidentiary and instructional issues in this type of trial than a practicing lawyer.

Even in situations where the error should be just as clear to the trial lawyer as it should be to the trial court, failure to engage in plain error review goes against the principle of judicial economy. By declining plain error review in favor of allowing the matter to be taken up in post-conviction, the appellate court is allowing more time and resources to be unnecessarily spent on a case. Post-conviction cases can take years even without the appeal. Moreover, if relief that could have been granted on plain error review is not granted until post-conviction, the impact on victims will be even greater. If a case is set aside, the victim will be told he or she is going to need to go through the process again. If it is necessary to put the victim through the hardship of another trial, then it should be done as soon as possible.

Conclusion
In Amick, the Supreme Court of Missouri stated its rules for preservation are not intended to make it difficult for the appellant or to help appellate courts avoid review.⁷³ If that is true, then the Court should remove the requirement that a motion for new trial is necessary to preserve errors for appellate review. This requirement adds nothing to Missouri jurisprudence, and it serves no purpose other than to provide an additional opportunity for a defendant to lose his or her right to have a claim of error reviewed. The rationale that the trial court needs to be able to reflect on its decisions made at trial is unavailing since a motion for new trial is not required in a bench trial and is not required in the federal system. Trial courts are thoughtful and consider all the arguments when making a decision, but once they make it, it is final. Moreover, even if the trial court can be convinced it made a mistake, it is unable to consider the error in the context of the entire trial. Therefore, it is not going to set aside the verdict and grant the motion for new trial.

While lawyers do bear some of the responsibility for the submission of jury instructions that do not protect a defendant’s right to jury unanimity, they do not bear all of it, particularly given that the ultimate responsibility for submitting correct instructions always lies with the trial court. Declining plain error review is not the answer, particularly given that what is evident, obvious, and clear for the trial court is not necessarily evident, obvious, and clear for the trial lawyer.

Endnotes
1  James Egan is a lawyer with the Central Appellate Office of the Missouri Public Defender System. He started in the trial division in October 2003 and transferred to the appellate division in January 2019. The views expressed in this article are his alone and do not express the views of the Missouri State Public Defender System.

2  State v. Mateo, 335 S.W.3d 529, 538 (Mo. App. W.D. 2011).

3  State v. Amick, 462 S.W.3d 413, 415 (Mo. banc 2015) (citing State v. Stepter, 794 S.W.2d 649, 655 (Mo. banc 1990)) (internal quotations omitted).

4  State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). 

5  Id.

6  State v. Schneider, 483 S.W.3d 495, 504 (Mo. App. E.D. 2016). 

7  Id. 

8  State v. Shockley, 410 S.W.3d 179, 195 (Mo. banc 2013) (citing State v. Bartlik, 363 S.W.3d 388, 391 (Mo. App. 2012) (internal quotations omitted). 

9  State v. Goins, 306 S.W.3d 639, 646 (Mo. App. S.D. 2010) (citing State v. Boydston, 198 S.W.3d 671, 674 (Mo. App. S.D. 2006)) (internal quotations omitted). 

10  State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005).

11  State v. Ellis, 512 S.W.3d 816, 825 (Mo. App. W.D. 2016).

12  Id. (citing State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006)) (internal quotations omitted).

13  State v. Scott, 531 S.W.3d 639, 640 (Mo. App. S.D. 2017). 

14  State v. Rogers, 820 S.W.2d 567, 569 (Mo. App. E.D. 1991).

15  Ellis, 512 S.W.3d at 825 (citing State v. Walkup, 220 S.W. 3d 748, 757 (Mo. banc 2007)) (emphasis in original) (internal citations and quotations omitted).

16  State v. Brandolese, 601 S.W.3d 519, 525 (Mo. banc 2020).

17  Id. at 526. (internal citations and quotations omitted). 

18  Brandolese, 601 S.W.3d at 524.

19  Id.

20  Id. 

21  Id. at 525.

22  Id.

23  Id.  

24  Id.

25  Id. at 526.

26  State v. Brandolese, 2018 WL 6738896 (Mo. App. W.D. 2018).

27  Brandolese, 601 S.W.3d at 525.

28  Brandolese, 601 S.W.3d at 537 (Draper, C.J. dissenting); Amick, 462 S.W.3d at 415.

29  Brandolese, 601 S.W.3d at 537 (Draper, C.J. dissenting).

30  Amick, 462 S.W.3d at 415. 

31  Nguyen By and Through Nguyen v. Haworth, 916 S.W.2d 887, 889 (Mo. App. W.D. 1996).

32  Amick, 462 S.W.3d at 415 (citing State v. Pointer, 887 S.W.2d 652, 654 (Mo. App. 1994)) (internal quotations omitted). 

33  State v. Miller, 360 S.W.2d 633, 636 (Mo. 1962).

34  Schneider, 483 S.W.3d at 504.

35  In my 15 years as a trial lawyer, I saw trial courts amend their rulings on pre-trial motions, but I never saw a trial court grant a motion for new trial in a jury trial. In fact, I only heard about this happening once and that was because the lawyer was ineffective.

36  See Rule 29.11(e).

37  State v. Hartman, 488 S.W.3d 53, 57 (Mo. banc 2016) (internal citations and quotations omitted).

38  State v. Olten, 428 S.W.3d 784, 788 (Mo. App. S.D. 2014).

39  Oral Argument at 9:30, State of Missouri v. Mark C. Brandolese,601 S.W.3d 519 (Mo banc 2020), https://www.courts.mo.gov/page.jsp?id=142672. 

40  Oral Argument at 9:40, State of Missouri v. Mark C. Brandolese,601 S.W.3d 519 (Mo banc 2020), https://www.courts.mo.gov/page.jsp?id=142672.   

41  Oral Argument at 9:45, State of Missouri v. Mark C. Brandolese,601 S.W.3d 519 (Mo banc 2020), https://www.courts.mo.gov/page.jsp?id=142672.

42  McCoy v. State, 431 S.W.3d 517, 522-23 (Mo. App. E.D. 2014).

43  Id. at 523.

44  United States v. Price, 851 F.3d 824, 826 (8th Cir. 2017) (internal citations and quotations omitted).

45  344 S.W.3d 150 (Mo. banc 2011).

46  Id. at 152. 

47  Id.

48    Id.

49    Id. at 154.

50  Id. at 159.

51  State v. Rycraw, 507 S.W.3d 47 (Mo. App. E.D. 2016); Hoeber v. State, 488 S.W.3d 648 (Mo. banc 2016); State v. Carlton, 527 S.W.3d 865 (Mo. App. E.D. 2017); State v. Drake, 514 S.W.3d 633 (Mo. App. W.D. 2017); State v. Adams, 571 S.W.3d 140 (Mo. App. W.D. 2018); State v. Beck, 557 S.W.3d 408 (Mo. App. W.D. 2018); State v. Henry, 568 S.W.3d 464 (Mo. App. E.D. 2019); and State v. Powell, 581 S.W.3d 103 (Mo. App. W.D. 2019).

52  453 S.W.3d 196 (Mo. banc 2015). 

53  Id. at 209.

54  571 S.W.3d 140, 144, n.3 (Mo. App. W.D. 2018).

55  Despite its frustrations, the court in Adams did grant Celis-Garcia relief.

56  592 S.W.3d 375, 381, n.5 (Mo. App. S.D. 2019).

57  599 S.W.3d 257, 263 (Mo. App. S.D. 2020).

58  Id.

59  2020 WL 7639591 (Mo. App. S.D. 2020).

60  Id. at *7.

61  See Hudson v. State, 563 S.W.3d 834, 838 (Mo. App. E.D. 2018).

62  State v. D.W.N., 290 S.W.3d 814, 826 (Mo. App. W.D 2009).

63  Id. at 821-26.

64  Id. at 824.

65  Davidson, 599 S.W.3d at 263.

66  Id.

67  Id.

68  Adams, 571 S.W.3d at 144, n.3; Snyder, 592 S.W.3d at 381, n.5.

69  Simmons v. McCulloch, 501 S.W.3d 14, 20 (Mo. App. E.D. 2016) (internal citations and quotations omitted). 

70  Amick, 462 S.W.3d at 415. 

71  State v. Moss, 789 S.W.2d 512, 517 (Mo. App. S.D. 1990).

72  Snyder, 592 S.W.3d at 380.

73  Amick, 462 S.W.3d at 415.