State v. Barnaby

• Decision Date: 17 December 2002
• Docket Number: No. WD 60728.,WD 60728.
• Citation: 91 S.W.3d 221
• Parties: STATE of Missouri, Respondent, v. Nellie M. BARNABY, Appellant.
• Court: Missouri Court of Appeals

91 S.W.3d 221

STATE of Missouri, Respondent, v. Nellie M. BARNABY, Appellant.

No. WD 60728.

Missouri Court of Appeals, Western District.

December 17, 2002.

COPYRIGHT MATERIAL OMITTED

Jeremiah W. (Jay) Nixon, Attorney General, Sara L. Trower, Assistant Attorney General, Jefferson City, MO, for Respondent.

John R. Cullom, Kansas City, MO, for Appellant.

Before EDWIN H. SMITH, P.J., and LOWENSTEIN and HARDWICK, JJ.

EDWIN H. SMITH, Presiding Judge.

Nellie M. Barnaby appeals from the judgment of her conviction, after a jury trial in the Circuit Court of Dekalb County, of possession of a controlled substance on the premises of a correctional facility, § 217.360.¹ As a result of her conviction, the appellant was sentenced to a term of five years imprisonment in the Missouri Department of Corrections.

In the appellant's sole point on appeal, she claims that the trial court plainly erred in rereading, at the close of all the evidence, Instruction No. 1, which was patterned after MAI-CR 3d 302.01,² the mandatory instruction concerning the duties of the judge and jury in a criminal trial, including the jury's duty to determine the credibility of witnesses, because it violated Note on Use 2 of MAI-CR 3d 302.01, providing that "[this instruction] is not to be reread at the conclusion of the evidence."

We affirm.

Facts

On September 9, 2000, the appellant traveled to Crossroads Correctional Center (Crossroads) in Cameron, Missouri, to visit her two sons, Shawn Barnaby and Robert Ritter, who were incarcerated there. Barnaby was serving a life sentence without parole on a conviction for first-degree murder, while Ritter was serving seven years on convictions for burglary and stealing. Corrections Officer Raechel Kelley, who was monitoring the visiting room that day, observed the appellant walk into the visiting room and noticed that she appeared to be "edgy." The appellant sat down at a table with her two sons and talked for awhile, then got up and went to the restroom. After returning, the appellant sat back down, at which time Officer Kelley witnessed her spit something into a half-empty M & M bag, which she had picked up from the table. The appellant then passed the bag to Barnaby, at which time Officer Kelley approached the table and confiscated the bag and its contents. Two balloons, containing a total of 3.04 grams of marijuana, were later found in the bag. A surveillance camera in the visiting room captured the entire incident on videotape.

On December 29, 2000, the appellant was charged by information in the Circuit Court of Dekalb County with possession of a controlled substance on the premises of a correctional center, § 217.360. The appellant was tried in a one-day jury trial on October 15, 2001. Prior to the introduction of evidence, the trial court read several jury instructions to the jury, including Instruction No. 1, patterned after MAI-CR 3d 302.01. Following the reading of the instructions, the State presented its evidence, which consisted of testimony from several police officers, a chemist with the Missouri State Highway Patrol, and Officer Kelley. In addition, the State also introduced the surveillance videotape which was viewed by the jury. The only two witnesses to testify in the appellant's defense were her two sons. Barnaby essentially took credit for the offense, testifying that he had placed the balloons of marijuana in the M & M bag and did not tell the appellant what he had done.

At the close of all of the evidence, the court recessed. During the recess, the required instruction conference was held. After the recess, the trial court proceeded to read to the jury eight instructions, including rereading Instruction No. 1. The jury then deliberated for several hours before returning with a guilty verdict, recommending a prison sentence of five years.

On November 9, 2001, the appellant filed a motion for judgment of acquittal or, in the alternative, for a new trial. On November 19, 2001, the trial court overruled the motion and sentenced the appellant to five years imprisonment.

This appeal follows.

I.

In the appellant's sole point on appeal, she claims that the trial court plainly erred in rereading, at the close of all the evidence, Instruction No. 1, which was patterned after MAI-CR 3d 302.01, the mandatory instruction concerning the duties of the judge and jury in a criminal trial, including the jury's duty to determine the credibility of witnesses, because it violated Note on Use 2 of MAI-CR 3d 302.01, providing that "[this instruction] is not to be reread at the conclusion of the evidence." Specifically, she claims that the trial court's rereading of the instruction "shortly after [her] sons had testified," "constituted an unfair repetition of the credibility instruction, and unfairly focused the jurors and directed them to place undue scrutiny on the testimony of appellant's only two witnesses." She contends that this improperly suggested to the jury that her sons' exculpatory testimony should not be believed in that: (1) they were biased and prejudiced due to their familial relationship to the appellant; and (2) they were not credible due to their being convicted felons serving prison sentences. Although the appellant raised her claim of instructional error in her motion for new trial, she concedes that she did not properly preserve it for our review in that she failed to make a specific objection at trial to the rereading of Instruction No. 1, as required by Rule 28.03.³ State v. Bradshaw, 26 S.W.3d 461, 471 (Mo.App.2000). She, therefore, requests plain error review pursuant to Rule 30.20.

Rule 30.20 provides, in pertinent part, that "[w]hether 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." The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed a "plain" error, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). "Plain" error for purposes of Rule 30.20 is error that is evident, obvious and clear. State v. Hibler, 21 S.W.3d 87, 96 (Mo.App. 2000).

If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious and clear. Id. As in the case of our review for "regular" error, not every obvious error found in plain error review mandates reversal. Carr, 50 S.W.3d at 853. In the case of review for "regular" error, to be reversible, the found error must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002). Likewise, in the case of review for plain error, the found error must have prejudiced the appellant, except that such prejudice must rise to the higher level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if obvious and clear error is found in the first step of the procedure, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.

To succeed on appeal, the appellant has the burden to prove that instructional error resulted in manifest injustice or a miscarriage of justice. Id. Clear and obvious instructional error is rarely found to result in manifest injustice or a miscarriage of justice requiring reversal for plain error. Id. In the context of instructional error, reversible plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict. State v. Deck, 994 S.W.2d 527, 540 (Mo. banc 1999). Inasmuch as we do not find substantial grounds on the face of the appellant's claim for us to believe that the trial court committed evident, obvious, and clear error resulting in manifest injustice or a miscarriage of justice to the appellant, for the reasons discussed, infra, we decline plain error review.

In addressing alleged instructional error, we start with the proposition that if there is an MAI-CR instruction made applicable by the law or the Notes on Use, the trial court is required to instruct the jury based upon that instruction. Rule 28.02(c). The failure to give an instruction in violation of Rule 28.02 or any applicable Notes on Use is error, the prejudicial effect to be judicially determined. Rule 28.02(f); State v. Altaffer, 23 S.W.3d 891, 895 (Mo.App.2000).

Pursuant to Rule 27.02(e), the trial court is required in every felony jury trial to read, inter alia, MAI-CR 3d 302.01 to the jury. Note on Use 2 of this instruction reads: "This instruction will be Instruction No. 1, and will be read immediately following MAI-CR 3d 300.06. It is not to be reread at the conclusion of the evidence, but it must be given to the jury with other written instructions to be used during the jury's deliberations." (Emphasis added.) Here, there is no dispute that Instruction No. 1, which was patterned verbatim after MAI-CR 3d 302.01, was read, as required, immediately following MAI-CR 3d 300.06, the instruction which informs the jury on how the trial will proceed. There is also no dispute that in violation of Note on Use 2 of MAI-CR 3d 302.01, it was reread at the conclusion of all the evidence, constituting evident, obvious, and clear instructional error. However, there is a...