State v. Walter, SC 94658

• Decision Date: 26 January 2016
• Docket Number: No. SC 94658,SC 94658
• Citation: 479 S.W.3d 118
• Parties: State of Missouri, Respondent, v. Chadwick Leland Walter, Appellant.
• Court: Missouri Supreme Court

479 S.W.3d 118

State of Missouri, Respondent,
v.
Chadwick Leland Walter, Appellant.

No. SC 94658

Supreme Court of Missouri, en banc .

Opinion issued January 26, 2016

Walter was represented by Damien De Loyola and Greg Doty of the public defender's office in Kansas City.

The state was represented by P. Benjamin Cox of the attorney general's office in Kansas City.

George W. Draper III, Judge

Chadwick Leland Walter (hereinafter, "Walter") challenges his convictions for attempted manufacture of methamphetamine, section 195.211, RSMo 2003, and maintaining a public nuisance, section 195.130, RSMo 2000. This Court holds that the trial court plainly erred in failing to grant him a new trial based upon a photograph used in a slideshow during the state's closing argument. Accordingly, the trial court's judgment is reversed, and the case is remanded for a new trial.

Factual Background

On August 4, 2011, Walter and his girlfriend, Kathy Martinson (hereinafter, "Martinson"), visited various stores and pharmacies to purchase pseudoephedrine pills, lithium batteries, and fuel for a camp stove. Later that same day, Shane Nicholson (hereinafter, "Nicholson") was stopped by a trooper for a traffic violation. Nicholson was arrested and taken to the sheriff's office. At the sheriff's office, Nicholson's cellular telephone received a call. Nicholson was asked to place the call on "speaker" so that both he and the trooper could hear the conversation. The trooper recognized the voice on the telephone as Walter's. During the conversation, Nicholson asked Walter if "it was fire," and Walter replied, "Yeah."¹

On August 5, 2011, the trooper obtained a search warrant for Walter's residence. The trooper and nine other officers executed the search warrant at Walter's residence. Once they entered Walter's residence, they found an active methamphetamine laboratory. Walter was arrested. Walter was charged with one count of attempted manufacture of a controlled substance and one count of maintaining a public nuisance.

At trial, the state presented evidence that it believed supported a finding of Walter's guilt. Walter contested the state's evidence and presented his own evidence,

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which, if believed, could support a finding of not guilty.

During its closing argument, the state used a visual presentation with various photographs, diagrams, and lists. The final photograph used in the slideshow was an enlarged color photograph of Walter. In the photograph, Walter is wearing a bright orange prison jumpsuit and the word "GUILTY" is superimposed in large, block, red letters, running diagonally across Walter's face and filling the frame of the photograph. The jury was then instructed, and it retired to deliberate.

At some point during the jury's deliberations, defense counsel was either made aware of or viewed the state's closing argument slideshow. The record does not indicate when during the jury's deliberation defense counsel viewed Walter's photograph with the word "GUILTY" imposed across it. Further, there was no record as to whether the trial court also viewed the state's slideshow.

After the jury rendered its guilty verdict and was discharged, defense counsel made an objection to the state's improper and prejudicial presentation of Walter's photograph displayed to the jury during closing argument.² Defense counsel stated he did not make a contemporaneous objection because he did not see the photograph at the time it was displayed. The trial court also admitted that it did not see the photograph in the slideshow during closing argument. The state responded that the photograph without the superimposed text was included in the state's exhibits. The trial court deferred ruling on the objection until defense counsel filed a motion for new trial.

The trial court held a hearing on Walter's motion for new trial. Defense counsel further explained that he did not see the photograph because he was watching the state's attorney address the jury and the screen displaying the images was on the opposite side of the room from the jury. The trial court overruled Walter's motion for new trial and imposed sentence.

Walter appeals, raising multiple points of error. However, Walter's first allegation of error regarding the trial court's failure to grant him a new trial because the state's use of altered evidence in a slideshow during closing argument denied him of a fair trial is dispositive.

Standard of Review

The standard of review for alleged error in closing argument depends upon whether defense counsel objects. State v. Shurn, 866 S.W.2d 447, 460 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Walter did not object to the state's altered photograph in the slideshow presentation during closing argument until after the jury had retired and returned its verdict. A defendant must object at the time an allegedly

479 S.W.3d 123

improper argument to the jury is made to preserve the error. State v. Barker, 410 S.W.3d 225, 234 (Mo.App.W.D.2013). Further, when the objection could be made during trial, raising the issue for the first time in a motion for new trial is insufficient to preserve the alleged error. Id. The state and Walter both agree that his failure to object to the slideshow during the state's closing argument does not preserve the issue for appeal. Accordingly, this issue is reviewed for plain error only.³

Including a claim of error in a motion for new trial is a requirement of preserving an issue for review, but a claim of error is not wholly preserved absent a timely objection at trial. Therefore, including a claim of error that was not raised at trial in a motion for a new trial does not change the standard of review from plain error to the lower standard of review for an abuse of discretion. For an allegation of error to be considered preserved and to receive more than plain error review, it must be objected to during the trial and presented to the trial court in a motion for new trial. See, inter alia, Carter, 415 S.W.3d at 691 (finding the defendant did not object to statements in closing rebuttal argument at trial and the defendant "therefore, did not preserve the issue for review. When a party does not properly preserve an argument at trial, the Court may, in its discretion, review the argument for plain error when there is a manifest injustice or miscarriage of justice."); State v. McFadden, 369 S.W.3d 727, 750 (Mo. banc 2012) (failure of defense counsel to object to state's closing argument results in plain error review); State v. Tisius, 362 S.W.3d 398, 409 (Mo. banc 2012) (acknowledging that defense counsel's failure to object to the state's closing argument results in plain error standard of review pursuant to Rule 30.20); State v. Evans, 410 S.W.3d 258, 265 (Mo.App.W.D.2013) ("When counsel does not object, however, any claim of error regarding closing argument is not preserved and can be reviewed, if at all, for only plain error resulting in a manifest injustice."); State v. Thompson, 401 S.W.3d 581, 590 (Mo.App.E.D.2013) (finding defendant did not offer a timely objection at the time of the alleged error during closing argument and that his filing of a motion for new trial with the allegation of error failed to preserve the issue for appellate review); State v. Goeman, 386 S.W.3d 873, 881 (Mo.App.S.D.2012) ("Raising an issue for the first time in a motion for new trial, when an objection could have been made at trial, is insufficient to preserve the claimed error for appellate review."); State v. Tramble, 383 S.W.3d 34, 37–38 (Mo.App.E.D.2012) (reviewing the defendant's allegation of error during closing argument for abuse of discretion because the allegation of error was preserved at trial and in the motion for new trial); State v. Chambers, 234 S.W.3d 501, 512 (Mo.App.E.D.2007) (quoting State v. Petty, 967 S.W.2d 127, 140 (Mo.App.E.D.1998) and finding that the "general rule with respect to preservation of error is that an objection stating the grounds must be made at trial, the same objection must be set out in the motion for new trial and must be carried forward in the appellate brief to preserve it."); and State v. Lingle, 140 S.W.3d 178, 190 (Mo.App.S.D.2004)

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(finding defendant did not preserve a complaint for review when he failed to object during closing argument but requested a mistrial at the conclusion of the state's argument and included the alleged error in his motion for new trial). Merely presenting an allegation of unobjected error in a motion for new trial preserves nothing other than the opportunity for an appellate court to engage in plain error review. "[F]ailure to properly object to closing argument at the time it is made to a jury results in a waiver of any right to complain of the argument on appeal, even if the point is preserved in an after trial motion." State v. Hall, 319 S.W.3d 519, 523 (Mo.App.S.D.2010) (quoting State v. Samuels, 88 S.W.3d 71, 83 (Mo.App.W.D.1993) and Nishwitz v. Blosser, 850 S.W.2d 119, 124 (Mo.App.E.D.1993) ).

An error committed during closing argument will only result in a reversal when it amounts to prejudicial error. State v. Miller, 372 S.W.3d 455, 475 (Mo. banc 2012). "A conviction will be...