Deficiency in Points Relied Upon Preserves Nothing for Review Mo Court Appeals

Vol. 77, No. iii / May - June 2021

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 sectionalisation 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."ⁱⁱⁱ In society for the objection to be considered timely, it must exist made at the time the consequence arises before the court; if there is an objection to the admission of evidence, objecting to its access in a pre-trial motion is non enough to preserve the result.^iv This is considering a ruling on a pre-trial motion is field of study to change.⁵ Therefore, the objection must too be made at the time the prove 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 testify is really proffered."^vii Likewise, "[t]he purpose of a motion for new trial is to permit the trial court the opportunity to reflect on its activity during the trial."⁸ Additionally, "the bespeak raised on entreatment must be based upon the same theory presented at trial."⁹

The most common errors accept to do with the admission or exclusion of evidence. "A trial court has broad discretion to admit or exclude show at trial."^ten "[The] standard of review in addressing the access or exclusion of evidence at trial is for abuse of discretion."^xi A trial courtroom's "discretion is abused when a ruling is clearly confronting the logic of the circumstances and is and then unreasonable every bit to point a lack of careful consideration."¹²

If show is wrongly admitted, the error is properly preserved. If at that place is a reasonable probability that without the fault there would have been a different effect, the trial court's mistake is reversible.^thirteen If the error is preserved merely there is not a reasonable probability the upshot would be different, the trial courtroom's mistake is harmless.^xiv

"[T]he erroneous exclusion of prove in a criminal case creates a rebuttable presumption of prejudice. That is considering a defendant in [a] criminal case has a ramble right to present a complete defence. The state may rebut this presumption [of prejudice] by proving that the fault 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 function the excluded evidence would take played in the defense's theory."^xv

If the error is not properly preserved, and then the trial court's error is considered plain.¹⁶ Patently error is governed by Supreme Court Rule thirty.twenty, which states:

Allegations of error that are not briefed or are not properly briefed on entreatment shall non 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 thirty.20 alters the general rule past giving appellate courts discretion to review obviously errors affecting substantial rights may be considered in the discretion of the court . . . when the courtroom finds that manifest injustice or miscarriage of justice has resulted therefrom. Manifestly fault review is discretionary, and [an appellate court] will not review a claim for manifestly error unless the claimed fault facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. The apparently language of Rule 30.20 demonstrates that not every accusation of plain error is entitled to review. The plain error dominion is to be used sparingly and may not exist 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 courtroom should refuse to review for obviously mistake under Rule xxx.20. Finally, the defendant bears the burden of demonstrating manifest injustice entitling him to plain error review."¹⁷

"Plainly error." For many trial lawyers, this phrase will send a chill down the spine for fearfulness of not preserving an effect for appellate review. For many appellate lawyers, the phrase "plain mistake" will too invoke feelings of angst. While part of this frustration is directed at the trial lawyer for not fairly preserving the event for appellate review, the other part is directed at rules which seem overly rigid for their intended purpose.

This article looks at 2 bug regarding plain error. The offset part argues that a claim of error should not be considered "evidently" if the error is preserved everywhere only in a motion for new trial. 2nd, this article addresses a perceived business organization that Missouri appellate courts are becoming more than hostile to granting plain fault review on the upshot of a unanimous jury verdict.

Evidently Error Arising from a Failure to Address a Claim in a Movement for New Trial
A contempo opinion from the Supreme Court of Missouri illustrates the current controversy circling the notion of whether plainly fault should arise from failure to include a merits in the motion for new trial. In State five. Brandolese, the defendant was bedevilled of domestic assault in the 2d caste 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 accused argued that the trial court "patently erred in failing to strike for cause [a juror] because she was the sister of an banana prosecuting chaser who participated in [the defendant'due south] instance."^xx The defendant argued that this violated § 494.470.one²¹ At trial, the defence force counsel argued this juror should exist stricken for cause because of her relationship with the assistant prosecutor.²² The defense counsel did not raise the issue in his movement for new trial.²³ The defense counsel as well did not raise the claim at trial that assuasive this item juror would take violated § 494.470.one.²⁴ A narrow bulk of the court declined to grant relief because it believed the defendant "ha[d] not demonstrated the alleged mistake led to manifest injustice warranting plain fault review."²⁵

When the Brandolese example was in front of the Missouri Court of Appeals-Western District, that court held the mistake was plainly considering the lawyer did non put the outcome in the motility for new trial.²⁶ When the instance was in front of the Supreme Court of Missouri, however, the Court indicated the fact that the defense counsel had non specifically brought up § 494.470.1 too made the claim unpreserved.²⁷ The dissent pointed out this conclusion contradicted the Courtroom's reasoning from Land 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 move for new trial, since a claim of fault was made and "trial judges are presumed to know the law and utilize it in their decisions."²⁸ The dissent, however, did acknowledge that the consequence was unpreserved because the claim of fault was non in the motion for new trial.²⁹ Thus, the main reason for property that the issue was unpreserved was due to it not being raised in a move for new trial.

Both the majority and dissenting opinions, which held that the issue was not preserved considering 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 upshot.³⁰ Only 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.

InAmick, the Court stated the "rules for preservation of error for review are applied, not to enable the court to avoid the job of review, nor to make preservation of error difficult for the appellant, but, to enable the court — the trial court starting time, then the appellate court — to define the precise merits made past the defendant."³² Withal, in addition to the Brandolese Court's possible overruling of Amick, sub silentio, there is also example law that seems to acknowledge that ane purpose of requiring a motion for new trial was "to narrow the bug on entreatment[.]"³³ In light of this, as well every bit the frequency of fully litigated trial issues existence relegated to manifestly error review due to lack of inclusion in a motion for new trial, ane has to wonder if part of the reason for this requirement is to make appeals more difficult.

It is true that a trial courtroom needs to have the opportunity to reconsider a ruling made on a pre-trial motion "against the backdrop of the evidence really adduced"³⁴ at the trial, and it is truthful that a trial court could plausibly reverse or, at the very least, better its pre-trial ruling. All the same, with very express exceptions, it is unlikely that trial courts do whatsoever reflection about their rulings they fabricated during the trial when the trial is over. This is not meant as a criticism of trial courts. Quite the contrary. Trial judges genuinely heed and consider the arguments made by counsel, including reading case law and relevant statutes. Once the courtroom has made its decision, however, it is terminal.

Trials are exhausting and fourth dimension consuming and simply under very infrequent circumstances, such every bit a new instance directly on point handed down between the fourth dimension of the verdict and sentencing, is a trial courtroom going to throw out the trial and take everyone become through the process over again.³⁵ Moreover, fifty-fifty if a new case was handed down, or some other infrequent circumstance existed that caused a trial judge to have doubts near his or her prior ruling, most, if not all, trial judges volition defer to the appellate court. Motions for new trial are usually taken upwards 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 naught more than than a formality, their deprival perfunctory.

Ironically, my success in getting a move 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 motility for a new trial is a needless brunt. The case was a misdemeanor domestic attack trial. There were two witnesses, both police officers. The complaining witness did non testify. The trial lasted less than 45 minutes and was sound-recorded. Over objection, one of the police officers testified to what the lament witness told him. The objection was that her statements were inadmissible as they violated the right to confrontation under the 6th Amendment. The trial court overruled the objection and admitted the testimony. The trial court constitute the customer 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 courtroom 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. Well-nigh importantly, a unmarried issue was dispositive. Without the erroneously admitted testimony, there would have been no evidence, not to mention insufficient evidence, to convict. Considering it was sound-recorded and took upward very petty time, the parties and the trial court were able to mind to the relevant trial testimony. Thus, information technology was an piece of cake issue to resolve.

A jury trial, on the other hand, is longer than 45 minutes, unremarkably has several witnesses, and is often transcribed by a courtroom reporter. The claim of error is unremarkably non as dispositive as the ane in the misdemeanor demote trial, and neither the parties nor the trial court tin become back and review the trial. Thus, when claims of fault 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 merits 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 take to convince the trial courtroom that the mistake was prejudicial enough to warrant a new trial. "Reversal due to an evidentiary error requires a showing of prejudice. If in that location is a reasonable probability that the trial courtroom'due south mistake afflicted the outcome of the trial, in that location is prejudice."³⁷ "In evaluating whether trial court error was prejudicial, nosotros consider the whole tape and practice 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 mistake in the context of the unabridged record, there is simply no way a trial court can determine if a claimed error was prejudicial plenty to warrant a new trial. For all these reasons, a motility for new trial seems to be a needless do and there is no logic in treating a merits of error every bit not preserved only because information technology 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 only not in a motion for new trial compared to a claim that is never presented to the trial courtroom. During oral arguments in the Brandolese instance, one judge asked the defendant's lawyer if the case was nether a evidently fault standard.³⁹ The lawyer acknowledged it was but argued it was merely on plainly mistake review because of the failure to put the claim in a move for new trial; therefore, "it [was] on a different level[.]"⁴⁰ Another approximate, however, made it clear he did not hold, saying, "How can there be different levels of manifestly mistake?"⁴¹

Fundamental fairness, however, requires courts to care for these situations differently, perhaps non with different levels of patently fault, merely in a way that distinguishes between not raising the issue in a move for new trial and not raising the issue at all. Non only is at that place no logical reason for treating errors not raised in a move for new trial the same as a claim of error that is never raised, but due to how the rules stand presently, information technology is actually better for the client in these circumstances for his trial counsel to have never raised the merits at all. The reason is unproblematic. If his lawyer never raises merits at all, his post-conviction lawyer can fence that the counsel was ineffective for non raising the upshot during trial and quite perhaps could obtain relief. However, if the outcome is raised at trial but not in a movement for a new trial, the defendant has no avenue for relief, as failure to raise a merits of error in a motion for new trial is non cognizable in a post-conviction claim. "Every bit a full general dominion, post-conviction claims based on counsel'south failure to adequately preserve issues for appeal are non cognizable" in a post-confidence claim.⁴² "Even constitutional claims that could have been raised on direct appeal volition not be considered in a post-conviction proceeding except where fundamental fairness requires otherwise, and then only in 'rare and exceptional circumstances.'"⁴³ Thus, nether the electric current rules, a defendant tin sometimes exist in a improve position to obtain relief if his lawyer is less effective. This defies logic and fundamental fairness.

The rule requiring a lawyer files a motility for new trial to preserve issues for entreatment needs to be changed. Ideally, the requirement that lawyers must heighten claims of fault in a motion for new trial should be removed. Subsequently all, they are non required in a bench trial. Does a trial courtroom not need the opportunity to reverberate on its decisions from a bench trial, as well? In fact, given that in a bench trial, the judge is as well the fact finder, the need to reflect may be even greater. Moreover, motions for new trial are not required in the federal system. Dominion 51(b) of the Federal Rules of Criminal Procedure states:

A party may preserve a merits of error by informing the court — when the court ruling or lodge is made or sought — of the activeness the political party wishes the courtroom to take, or the party's objection to the court's action and the grounds for that objection. If a political party does not have an opportunity to object to a ruling or order, the absence of an objection does not afterward 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 conspicuously state the grounds for the objection."⁴⁴ Dominion 33 of the Federal Rules of Criminal Process allows a defendant to file a movement for new trial, and the courtroom "may vacate any judgment and grant a new trial if the interest of justice so requires." A motion for new trial is non required, however.

Given that a movement for new trial is not required in a demote trial or in the federal system, the requirement that a move 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 mistake was addressed at trial but not in a move 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 motility for new trial would or should take resulted in the trial judge taking action. One example of such a circumstance would exist if a new case on point was handed down in the 25-solar day period between a finding of guilt and the time the motion was due.

Another possibility would exist to requite the appellate courtroom the discretion to treat the matter as preserved. All the same 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 fabricated, one thing is articulate: the electric current rule is not fair or logical. In the Brandolese example, it is inconceivable that the trial court would have changed its mind about the juror, and the affair should have been treated as if information technology 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 merits of error in a jury trial.

Obviously Error in Jury Unanimity Cases
Regardless of whether the Courtroom changes the rule, there will be times where the error on appeal is truly a plain error. Recently, 1 event 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 captive the defendant, all 12 jurors must convict him or her of the same crime. Every bit the example of State v. Celis-Garcia ⁴⁵ shows, however, the concept of jury unanimity is not always straightforward.

In Celis-Garcia, the accused was bedevilled of 2 counts of statutory sodomy.⁴⁶ On appeal, the defendant argued that her constitutional right to a jury trial was violated considering "the State presented evidence of multiple, split acts," but "the verdict directors failed to require the jury to concur to the specific acts she committed[.]"⁴⁷ The Supreme Courtroom of Missouri agreed and reversed the convictions.⁴⁸ The merits of error was non preserved and was reviewed for obviously mistake.⁴⁹ The Court held that considering "the verdict directors misdirected the jury in a mode that affected the verdict," a manifest injustice occurred.^l

Numerous lawyers and courts have argued that the analysis from Celis-Garcia applied to their cases. However, even though 95 cases take 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 courtroom to go along Celis-Garcia in mind when information technology reversed the defendant'southward conviction on other grounds.⁵³ Interestingly, for the start four years after existence decided, at that place were no reversals on Celis-Garcia grounds. Instead, these reversals accept occurred in the terminal five years, subsequently 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 Commune have recently made it clear they are tired of granting apparently error relief in this type of case. For instance, in State v. Adams, ⁵⁴the Western Commune stated:

Though Celis-Garcia found plain error, notwithstanding the defendant'due south tender of verdict directors that suffered the same defect as those submitted past the state, defendants in future multiple acts cases should not assume that they volition enjoy a perpetual free pass to secure plain fault review in these cases. Notwithstanding that the right to a unanimous jury verdict is an important constitutional principle, Celis-Garcia has been settled constabulary for several years, rendering it more and more difficult to alibi a accused'southward failure to object to, and thus preserve, instructional mistake in multiple acts cases.

Similarly, there is virtually no excuse for the country 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 adult in subsequent cases. There should be particular sensitivity to avoiding instructional error in multiple acts cases given that the failure to do then imposes a tremendous emotional burden on young victims who may be required to testify a 2nd fourth dimension.⁵⁵

Similarly, in Country v. Snyder, ⁵⁶ the Southern District cited the offset paragraph from Adams in its decision to turn down plain mistake review. Additionally, in State 5. Davidson, ⁵⁷ the Southern Commune held the trial counsel'due south failure to object to verdict directors violating his customer'due south right to a unanimous jury verdict constituted trial strategy. In back up of this holding, the court stated:

In the instant affair, the record indicates that defense counsel joined the State in adducing show of the "several acts" of molestation which could individually serve as the basis for criminal confidence. The tape reflects that defence counsel did so in a strategic effort to show that Victim's testimony, as a whole, was non credible. As the State points out in its cursory:

If [defense] counsel had objected to the verdict manager on jury-unanimity grounds, this might have resulted in the submission of multiple culling verdict directors to accost any jury-unanimity concerns identified in the objection. Just making such an objection would have neither furthered nor benefitted [Davidson]'s trial strategy of painting Victim every bit a liar, nor achieved his goal of obtaining an amortization. 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 aforementioned act in finding him guilty; [Davidson]'s strategy was to testify that the allegations were fabricated and to obtain an outright amortization.⁵⁸

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

In the instant thing, the tape 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 amortization. There was bear witness of multiple acts of molestation against Victim 1 (in the manner described in Instruction No. 5) — if defense force 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 confronting Victim i. This was unlikely to serve defense force counsel's strategy of presenting Victim 1 as not credible, and ran the substantial take chances of simply reminding the jury of pervasiveness and magnitude of Beerbower'due south acts of molestation against Victim 1.

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

While these courts' frustration may exist understandable, these comments are inaccurate, and their takeaways tin be misleading, for three reasons:

First, these comments imply that defense lawyers are deliberately withholding objection to the faulty instructions to accept a second bite at the apple if the customer is convicted. There is not a scintilla of evidence to support this allegation of sandbagging. Moreover, equally an officer of the courtroom, a trial lawyer should be afforded the presumption that his statement is truthful. Dominion 4-1.1 requires a lawyer be competent, and a lawyer's representation is presumed to exist competent.⁶¹ Additionally, Rule 4-iii.3 requires a lawyer to address a court with complete artlessness. Likewise, in that location should be a presumption that the lawyer has complied.

2nd, denying relief on the grounds that the trial counsel made a strategic decision non 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 4 pages of analysis, how the record showed the trial counsel'south failure to object was due to trial strategy.⁶³ In item, the D.West.N. court noted the record showed that the trial counsel knew the inadmissible testimony was non admissible and still did not object.⁶⁴ No such assay was done in Davidson or Beerbower, and the Southern District'due south property that non objecting to the improper instructions was trial strategy is woefully unconvincing in both cases. Moreover, the reference to the country's brief in Davidson did not back up its determination at all. The country'south cursory was full of speculation as to what might have happened if the defense counsel had objected and its argument (apparently adopted by the Southern District) is contradictory. If the defense force counsel "joined the State in adducing bear witness of the 'several acts'"⁶⁵ "to show that Victim's testimony…was non credible[,]"⁶⁶ then insisting on multiple verdict directors would not have "reminded the jury of the pervasiveness and magnitude of Accused'due south sexual abuse[,]"⁶⁷ just rather would have helped emphasize the fact that the kid was making up the allegations.

Moreover, the Davidson court'southward belongings has the potential to create existent problems for the defendant'south 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 adjuration that his failure to do this was not trial strategy, is the motion court immune to find that credible? Or is the motion court allowed to make a finding that the trial strategy was not reasonable? Or is it leap by the Southern Commune's holding from Davidson that it was trial strategy?

Finally, what about the prosecutor and the trial court? Exercise they go "a perpetual free pass?"⁶⁸ "[U]nder our police force, the prosecutor has a duty to serve justice, not but win the case."⁶⁹ "Further, trial judges are presumed to know the police force and to apply it in making their decisions."⁷⁰ Both prosecutors and trial courts have, at the very to the lowest degree, only as much responsibleness 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. Simply for whatever reason, the Celis-Garcia issue of a unanimous verdict continues to become missed by prosecutors, defence force counsel, and trial courts akin, and it is not appropriate to lay responsibility completely upon the trial lawyer. If a defense lawyer has a motive to stay serenity and so he can become a second bite at the apple on appeal, and so a prosecutor has merely as much incentive to stay quiet to increase his or her chances of obtaining a conviction, particularly at present that the appellate courts have indicated they are not going to grant evidently error relief.

Five things explicate why the Celis-Garcia consequence continues to exist missed. First, defense force lawyers with fiddling experience are litigating this nuanced outcome. Second, even experienced defense lawyers may not exist upwards to date on the recent instance law. Tertiary, prosecutors are in the same boat as they besides have crushing caseloads and are in court all the time. Fourth, trial courts are in the same situation every bit public defenders and prosecutors. They have dockets that are backed up, are frequently in court, and, like public defenders and prosecutors, might non have the fourth dimension to keep up on the caselaw. Since most trial judges accept non had a case reversed on Celis-Garcia grounds, information technology is not ever an outcome they are enlightened of.

Finally, trials are exhausting and by the fourth dimension the instruction briefing rolls around, the parties are frustrated, tired, and eager to get this example to the jury as before long as possible.

Given these difficulties, it is not unreasonable to require trial courts to get through a checklist to ensure that common mistakes with jury instructions are non overlooked. Perhaps a specific judicial checklist for certain kinds of cases would be helpful. Issues with unanimous verdicts tend to happen in child-sex activity cases, so 1 of the items for that checklist is that there are no Celis-Garcia issues. Withal, blaming only the trial lawyers, and, ultimately, the defendant, is not appropriate.

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

A defendant's effort to bear witness that the trial court committed evident, obvious and articulate error where the defendant was represented past 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 fault should have been evident, obvious, and clear to the trial court, it likewise should take been axiomatic, obvious, and clear to trial counsel.⁷²

For two reasons, this premise is not necessarily true.

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

2d, while all members of the bar are presumed competent, this competence is non equal. It is ofttimes the case that a trial judge has had years of do as a lawyer before condign a judge, and this experience is often greater than the lawyers practicing in front of him or her. Moreover, a trial judge is in courtroom all the time and getting daily practice in making evidentiary decisions and seeing the whole movie during a trial. For example, a trial gauge will likely preside over more than kid-sex trials in a given period than a lawyer will correspond defendants in kid-sexual activity trials. Thus, the trial judge is going to take more experience in addressing evidentiary and instructional issues in this blazon of trial than a practicing lawyer.

Even in situations where the error should be only as clear to the trial lawyer as it should be to the trial court, failure to engage in apparently error review goes against the principle of judicial economy. By declining plain fault review in favor of allowing the thing to exist 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 exist even greater. If a example is gear up aside, the victim volition be told he or she is going to demand to become through the process again. If information technology is necessary to put the victim through the hardship of another trial, and then it should exist done as shortly as possible.

Determination
In Amick, the Supreme Court of Missouri stated its rules for preservation are not intended to brand 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 motility 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 take a claim of fault reviewed. The rationale that the trial court needs to be able to reverberate on its decisions made at trial is unavailing since a motion for new trial is not required in a demote trial and is non required in the federal system. Trial courts are thoughtful and consider all the arguments when making a decision, merely once they get in, it is final. Moreover, even if the trial court can exist convinced it made a mistake, it is unable to consider the mistake in the context of the entire trial. Therefore, information technology is not going to set aside the verdict and grant the motion for new trial.

While lawyers do deport some of the responsibility for the submission of jury instructions that exercise non protect a defendant's right to jury unanimity, they exercise not bear all of it, particularly given that the ultimate responsibleness 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 articulate for the trial lawyer.

Endnotes
i  James Egan is a lawyer with the Cardinal Appellate Office of the Missouri Public Defender System. He started in the trial division in Oct 2003 and transferred to the appellate sectionalisation in January 2019. The views expressed in this article are his alone and do not express the views of the Missouri Country Public Defender Arrangement.

2 State 5. Mateo, 335 Due south.Westward.3d 529, 538 (Mo. App. West.D. 2011).

three State 5. Amick, 462 South.W.3d 413, 415 (Mo. banc 2015) (citing State v. Stepter, 794 S.Westward.2d 649, 655 (Mo. banc 1990)) (internal quotations omitted).

4 Land v. Purlee, 839 Due south.W.2d 584, 592 (Mo. banc 1992).

5 Id.

6 Country v. Schneider, 483 Due south.Due west.3d 495, 504 (Mo. App. East.D. 2016).

7 Id.

8 State v. Shockley, 410 S.W.3d 179, 195 (Mo. banc 2013) (citing State five. 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 Land v. Boydston, 198 S.W.3d 671, 674 (Mo. App. S.D. 2006)) (internal quotations omitted).

x State v. Madorie, 156 Due south.W.3d 351, 355 (Mo. banc 2005).

11 Land v. Ellis, 512 S.Due west.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 Southward.West.3d 639, 640 (Mo. App. Due south.D. 2017).

14 Land v. Rogers, 820 S.Due west.2d 567, 569 (Mo. App. E.D. 1991).

15 Ellis, 512 South.W.3d at 825 (citing State 5. Walkup, 220 South.Westward. 3d 748, 757 (Mo. banc 2007)) (emphasis in original) (internal citations and quotations omitted).

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

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

xviii 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 Southward.W.3d at 525.

28 Brandolese, 601 Southward.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 South.W.3d at 415.

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

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

33 State five. Miller, 360 Southward.W.2nd 633, 636 (Mo. 1962).

34 Schneider, 483 S.W.3d at 504.

35  In my xv years as a trial lawyer, I saw trial courts improve their rulings on pre-trial motions, merely I never saw a trial court grant a motility for new trial in a jury trial. In fact, I simply heard virtually this happening once and that was considering the lawyer was ineffective.

36 Meet Dominion 29.11(e).

37 Land v. Hartman, 488 S.Westward.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 nine:30, State of Missouri v. Mark C. Brandolese,601 South.West.3d 519 (Mo banc 2020), https://www.courts.mo.gov/page.jsp?id=142672.

40  Oral Argument at 9:40, State of Missouri five. Mark C. Brandolese,601 Due south.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. Marker C. Brandolese,601 Due south.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. Eastward.D. 2014).

43 Id. at 523.

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

45  344 S.Westward.3d 150 (Mo. banc 2011).

46 Id. at 152.

47 Id.

48Id.

49Id. at 154.

50 Id. at 159.

51 Land 5. Rycraw, 507 Due south.W.3d 47 (Mo. App. E.D. 2016); Hoeber v. State, 488 Due south.Due west.3d 648 (Mo. banc 2016); State v. Carlton, 527 Southward.W.3d 865 (Mo. App. Due east.D. 2017); State 5. Drake, 514 South.W.3d 633 (Mo. App. Westward.D. 2017); State v. Adams, 571 S.Due west.3d 140 (Mo. App. W.D. 2018); Land 5. Beck, 557 Southward.W.3d 408 (Mo. App. W.D. 2018); Land v. Henry, 568 S.W.3d 464 (Mo. App. E.D. 2019); and State five. Powell, 581 S.W.3d 103 (Mo. App. W.D. 2019).

52  453 S.Due west.3d 196 (Mo. banc 2015).

53 Id. at 209.

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

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

56  592 Southward.W.3d 375, 381, n.5 (Mo. App. Southward.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).

threescore Id. at *7.

61 See Hudson 5. State, 563 S.W.3d 834, 838 (Mo. App. Eastward.D. 2018).

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

63 Id. at 821-26.

64 Id. at 824.

65 Davidson, 599 S.West.3d at 263.

66 Id.

67 Id.

68 Adams, 571 Due south.Westward.3d at 144, due north.3; Snyder, 592 Southward.West.3d at 381, n.5.

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

70 Amick, 462 S.Westward.3d at 415.

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

72 Snyder, 592 Southward.W.3d at 380.

73 Amick, 462 S.Due west.3d at 415.

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