                        In the Missouri Court of Appeals
                                Eastern District
                                           DIVISION ONE

STATE OF MISSOURI,                              )      No. ED102678
                                                )
          Respondent,                           )      Appeal from the Circuit Court
                                                )      of St. Louis County
vs.                                             )      14SL-CR00017
                                                )
ARTHUR B. ROBINSON,                             )      Honorable Gloria Clark Reno
                                                )
          Defendant / Appellant.                )      FILED: March 22, 2016

                                              OPINION

          Arthur B. Robinson (Defendant) appeals the judgment of his conviction after a jury trial

on one count of burglary in the first degree, in violation of Section 569.160, RSMo 2000. 1 The

trial court sentenced Defendant, as a prior and persistent offender, to twenty years’

imprisonment. We reverse and remand for new trial.

                                   Factual and Procedural Background

          In January 2014, the State charged Defendant with first-degree burglary in violation of

Section 569.160, and with resisting or interfering with arrest in violation of Section 575.150. The

resisting arrest charge was dismissed, and the case went to trial on the burglary charge. At the

commencement of voir dire, however, the trial court informed the jury that the State had charged

Defendant with both felonies. Defense counsel moved for a mistrial due to that disclosure, and


1
    Unless otherwise indicated, all further statutory references are to RSMo 2000, as amended.
the trial court denied the motion. The trial court then instructed the jury pool as to the

presumption of Defendant’s innocence, the reasonable doubt standard, and that the charge

against Defendant was not evidence. After questioning by both parties, the jury was selected and

sworn in.

        In every criminal trial, the judge is mandated to read three introductory pattern

instructions as soon as the jury is sworn. MAI-CR3d 300.06 explains the order of the

proceedings and the occasional need for delay:

        This case will proceed in the following order:

        First, the Court will read to you two instructions concerning the law applicable to
        this case and its trial. Next, the attorney for the state must make an opening
        statement outlining what the attorney expects the state’s evidence will be. The
        attorney for the defendant is not required to make an opening statement then or at
        any other time. However, if the attorney chooses to do so, he may make an
        opening statement after that of the state, or the attorney may reserve his opening
        statement until the conclusion of the state’s evidence.

        Evidence will then be introduced.

        At the conclusion of all the evidence, further instructions in writing concerning
        the law will be read to you by the Court, after which the attorneys may make their
        arguments. You will then be given the written instructions of the Court to take
        with you to the jury room. You will go to that room, select a foreperson,
        deliberate, and arrive at your verdict.

        Sometimes there are delays or conferences out of your hearing with the attorneys
        about matters of law. There are good reasons for these delays and conferences.
        The Court is confident that you will be patient and understanding. We will have
        recesses from time to time.

        The following two instructions of law are for your guidance in this case. The two
        of them, along with other instructions in writing read to you at the close of all the
        evidence, will be handed to you at that time to take to your jury room.

        Trial courts must then read MAI-CR3d 302.01, which delineates the duties of judge and

jury:




                                                  2
Those who participate in a jury trial must do so in accordance with established
rules. This is true of the parties, the witnesses, the lawyers, and the judge. It is
equally true of jurors. It is the court’s duty to enforce these rules and to instruct
you upon the law applicable to the case. It is your duty to follow the law as the
court gives it to you.

However, no statement, ruling, or remark that I may make during the trial is
intended to indicate my opinion of what the facts are. It is your duty to determine
the facts and to determine them only from the evidence and the reasonable
inferences to be drawn from the evidence. In your determination of the facts, you
alone must decide upon the believability of the witnesses and the weight and
value of the evidence.

In determining the believability of a witness and the weight to be given to
testimony of the witness, you may take into consideration the witness’ manner
while testifying; the ability and opportunity of the witness to observe and
remember any matter about which testimony is given; any interest, bias, or
prejudice the witness may have; the reasonableness of the witness’ testimony
considered in the light of all the evidence in the case; and any other matter that
has a tendency in reason to prove or disprove the truthfulness of the testimony of
the witness.

It is important for you to understand that this case must be decided only by the
evidence presented in the proceedings in this courtroom and the instructions I give
you. The reason for this is that the evidence presented in court is reviewed by the
lawyers and the court, and the lawyers have the opportunity to comment on, or
dispute, evidence presented in court. If you obtain information from other places,
the lawyers do not have the opportunity to comment on or dispute it. Fairness and
our system of justice require giving both sides the opportunity to view and
comment on all evidence in the case. It is unfair to the parties if you obtain
information about the case outside this courtroom.

Therefore, you should not visit the scene of any of the incidents described in this
case, nor should you conduct your own research or investigation. For example,
you should not conduct any independent research of any type by reference to
textbooks, dictionaries, magazines, the Internet, a person you consider to be
knowledgeable or any other means about any issue in this case, or any witnesses,
parties, lawyers, medical or scientific terminology, or evidence that is any way
involved in this trial.

You should not communicate, use a cell phone, record, photograph, video, e-mail,
blog, tweet, text or post anything about this trial or your thoughts or opinions
about any issue in this case to any person. This prohibition on communication
about this trial includes use of the Internet, [List popular websites such as
“Facebook,” “MySpace,” “Twitter.”], or any other personal or public website.



                                           3
       Faithful performance by you of your duties as jurors is vital to the administration
       of justice. You should perform your duties without prejudice or fear, and solely
       from a fair and impartial consideration of the whole case. Do not make up your
       mind during the trial about what the verdict should be. Keep an open mind until
       you have heard all the evidence and the case is given to you to decide.

If the trial court plans to allow jurors to take notes, it adds parenthetical information from MAI-

CR3d 302.01:

       Each of you may take notes in this case but you are not required to do so. I will
       give you notebooks. Any notes you take must be in those notebooks only. You
       may not take any notes out of the courtroom before the case is submitted to you
       for your deliberations. No one will read your notes while you are out of the
       courtroom. If you choose to take notes, remember that note-taking may interfere
       with your ability to observe the evidence and witnesses as they are presented.

       Do not discuss or share your notes with anyone until you begin your deliberations.
       During deliberations, if you choose to do so, you may use your notes and discuss
       them with other jurors. Notes taken during trial are not evidence. You should not
       assume that your notes, or those of other jurors, are more accurate than your own
       recollection or the recollection of other jurors.

       After you reach your verdict, your notes will be collected and destroyed. No one
       will be allowed to read them.

       Courts then proceed to read MAI-CR3d 302.02, which defines what is—and what is

not—evidence:

       You must not assume as true any fact solely because it is included in or suggested
       by a question asked a witness. A question is not evidence, and may be considered
       only as it supplies meaning to the answer.

       From time to time the attorneys may make objections. They have a right to do so
       and are only doing their duty as they see it. You should draw no inference from
       the fact that an objection has been made.

       If the court sustains an objection to a question, you will disregard the entire
       question and you should not speculate as to what the answer of the witness might
       have been. The same applies to exhibits offered but excluded from the evidence
       after an objection has been sustained. You will also disregard any answer or other
       matter which the court directs you not to consider and anything which the court
       orders stricken from the record.




                                                 4
       The opening statements of attorneys are not evidence. Also, you must not
       consider as evidence any statement or remark or argument by any of the attorneys
       addressed to another attorney or to the court. However, the attorneys may enter
       into stipulations of fact. These stipulations become part of the evidence and are to
       be considered by you as such.

       In the instant case, rather than give the preliminary instructions above, the trial court

immediately turned proceedings over to the State, which made its opening argument. Neither the

State nor Defendant made an objection to the trial court’s failure to read the preliminary

instructions. Given the disposition of this case, only a brief recitation of the facts is necessary

viewed in the light most favorable to the verdict. The parties introduced testimony from several

witnesses, including a victim who testified she heard knocking on her door, footsteps inside her

residence, and thereafter saw Defendant near her porch. Other witnesses testified that they saw a

man who matched Defendant’s description on the victim’s porch and near the scene. Defendant

was arrested after fleeing the area and police. Defendant told the police he was trying to earn

money by shoveling snow but did not enter the victim’s residence. Defendant didn’t testify at

trial but called several witnesses who testified Defendant had shoveled walks for them. After

presentation of evidence by the State and by Defendant respectively, the trial court denied

Defendant’s motions for judgment of acquittal.

       Thereafter, the failure to read preliminary instructions 300.06, 302.01, and 302.02 must

have been noted, though no specifics were transcribed in our record on appeal. 2 A brief record

regarding the jury instructions was made. The prosecutor asked: “regarding 302.01 and 302.02,

are we still going to do that before the closing?” The judge answered: “Yes.” The parties agreed

that Instruction 1 would be MAI-CR3d 302.01 and that Instruction 2 would be 302.02. Those

instructions contain language forbidding jurors from certain behavior, as noted below. Rather

2
  On appeal, the failure to give instructions based on MAI-CR3d 300.06, 302.01, and 302.02 at
the beginning of trial was conceded by the State.

                                                   5
than performing an individual voir dire of the jury panel, the trial court expressed its intent to

change the instructions’ language to past tense and inquire whether the jury had comported with

the directives.

        The text of Instruction 1 was identical to MAI-CR3d 302.01, except for the following

changes (emphasis here):

        Therefore, you should not have visited the scene of any of the incidents described
        in this case, nor should you have conducted your own research or investigations.
        For example, you should not have conducted any independent research…

        You should also have not communicated by use of a cell phone, record,
        photograph, video, email, blog, tweet, text or post anything about this trial or your
        thoughts or opinions about any issue in this case to any person.

The trial judge questioned the jury about those forbidden behaviors:

        Did any of you conduct any independent research, review any magazines,
        dictionaries, or talk to anyone about the case as was instructed you at the very
        beginning not to discuss this case among yourselves or talk to anyone about the
        case? Did anyone do that? . . . Did anyone [communicate by use of a cell phone,
        record, photograph, video, e-mail, blog, tweet, text or post anything about this
        trial or your thoughts or opinions about any issue in this case to any person?

No jurors responded affirmatively.

        Regarding Instruction 2, the trial court changed to the past tense certain clauses from

MAI-CR3d 302.02, as follows:

        You are not to assume as true any fact solely because it was included in or
        suggested by a question asked a witness. A question is not evidence, and may be
        considered only as it supplies meaning to the answer.

        From time to time the attorneys made objections. They have a right to do so and
        in doing that, they were only doing their duty as they saw it. You were to draw no
        inference from the fact that an objection has been made.

        If the court sustained an objection to a question, you will disregard the entire
        question and you should not speculate as to what the answer of the witness might
        have been. The same applies to exhibits offered but excluded from the evidence
        after an objection was sustained. You will also disregard any answer or other



                                                  6
        matter which the court directed you not to consider and anything which the court
        orders stricken from the record.

        The opening statements of attorneys are not evidence. Also, you must not
        consider as evidence any statement or remark or argument by any of the attorneys
        addressed to another attorney or to the court. However, the attorneys may enter
        into stipulations of fact. These stipulations become part of the evidence and are to
        be considered by you as such.

The trial court made no inquiries whether jurors comported with Instruction 2’s directives. Nor

did it give MAI-CR3d 300.06 in any form.

        The parties made their closing arguments and the case was submitted to the jury. As

required by our precedent, see State v. Christian, 184 S.W.3d 597, 603 (Mo. App. E.D. 2006),

the jury was instructed on both the burglary charge and the lesser-included offense of first-degree

trespass. The jury found Defendant guilty of burglary in the first degree after a three-day trial.

        In a motion for judgment of acquittal or, alternatively, for new trial, Defendant raised for

the first time the trial court’s failure to give the preliminary jury instructions. The trial court

denied the motion, found Defendant to be a prior and persistent offender, and sentenced him to

twenty years’ imprisonment. The trial court entered judgment against Defendant, and this timely

appeal followed.

        Defendant assigns five errors to the trial court. Three arguments stem from the trial

court’s failure to read MAI-CR3d 300.06, MAI-CR3d 302.01, and MAI-CR3d 302.02 to the jury

before opening arguments. Defendant further challenges the sufficiency of the evidence to

support his conviction, as well as the trial court’s decision not to grant a mistrial after it revealed

Defendant’s dismissed resisting arrest charge to the venire panel.

        Because we find the trial court’s failure to read MAI-CR3d 300.06, 302.01, and 302.02 at

the beginning of the case resulted in plain error and is dispositive of this appeal, we address only

the claims of instructional error.


                                                   7
                                           Standard of Review

          Rule 28.03 3 prohibits a party from assigning error to a trial court’s failure to give an

instruction unless the party objects to that failure both during trial and in a motion for new trial.

Here, Defendant did not object to the trial court’s failure to give the preliminary instructions, and

correctly acknowledges that he did not preserve his claims of instructional error for review.

Defendant therefore requests plain error review under Rule 30.20.

          The State initially counters that cases like State v. Boyd and State v. Hodge, in which this

court declined to exercise plain error review over failures to give a mandatory instruction,

preclude any plain error review here. See Boyd, 600 S.W.2d 97, 100 (Mo. App. E.D. 1980);

Hodge, 600 S.W.2d 400, 401 (Mo. App. S.D. 1983). Insofar as those cases stood for the

proposition that failing to object to instructional error at trial precludes any appellate review,

they have clearly been supplanted by State v. Wurtzberger. There, the Supreme Court of

Missouri clarified that Rule 28.03 does not trump Rule 30.20, and that a party’s waiver of

appellate review does not extend to unpreserved claims of plain error. Wurtzberger, 40 S.W.3d

893, 897–98 (Mo. banc 2001). Under Rule 30.20, we accordingly have discretion to consider

unpreserved claims of error affecting substantial rights if manifest injustice or a miscarriage of

justice would otherwise occur. State v. Dudley, 475 S.W.3d 712, 716 (Mo. App. E.D. 2015).

          We will affirm unless we find that the trial court committed an error which caused

manifest injustice or a miscarriage of justice. State v. Russell, 462 S.W.3d 878, 882 (Mo. App.

E.D. 2015). On plain error review, the appellant bears the burden of showing the occurrence of
3
    All rule references are to Mo. R. Crim. P.

                                                    8
plain error resulting in manifest injustice or a miscarriage of justice. State v. Myles, --- S.W.3d --

--, 2015 WL 5231606, at *3 (Mo. App. E.D. 2015). The analysis proceeds in two steps. State v.

Smith, 370 S.W.3d 891, 896 (Mo. App. E.D. 2012) (internal citation omitted). First, we examine

whether, on the face of the claim, an evident, obvious, and clear error has occurred. Id. If we so

conclude, we may proceed to the second step, where we consider whether manifest injustice or a

miscarriage of justice actually resulted. Id.

                                                Discussion

       The trial court’s failure to read preliminary instructions meets the first prong of plain

error review. “Whenever there is an MAI-CR instruction” applicable under the law and Notes on

Use, that instruction “shall be given or used to the exclusion of any other instruction or verdict

form.” Rule 28.02(c) (emphasis here). The instructions at issue here are mandatory. Note on Use

2 to MAI-CR3d 300.06 requires that “[t]his instruction must be read immediately after the jury is

sworn and before reading MAI-CR3d 302.01 and 302.02. It will not be reread to the jury at the

conclusion of the evidence and will not be numbered or given to the jury when it retires to

deliberate.” Note on Use 2 to MAI-CR3d 302.01 requires “[t]his instruction will be Instruction

No. 1, and will be read immediately following MAI-CR3d 300.06.” Finally, Note on Use 2 to

MAI-CR3d 302.02 provides: “[t]his instruction will be Instruction No. 2, and will be read

immediately following MAI-CR3d 302.01.” On its face, therefore, the trial court’s failure to give

the three mandatory instructions immediately after swearing in the jury is an evident, obvious,

and clear error. See State v. Neal, 304 S.W.3d 749, 754 (Mo. App. S.D. 2010) (failure to give an

instruction in accordance with an MAI-CR or any applicable Notes on Use is error, the

prejudicial effect to be judicially determined).




                                                    9
       Even when clear and obvious, instructional error seldom constitutes plain error. Myles,

2015 WL 5231606, at *3. Plain error will be found only when the claimed error actually resulted

in manifest injustice or a miscarriage of justice. State v. Smith, 370 S.W.3d at 896. “Manifest

injustice or miscarriage of justice” is not an easy phrase to define. State v. Doolittle, 896 S.W.2d

27, 29 (Mo. banc 1995) (internal citation omitted). It results when the trial court has so

misdirected or failed to instruct the jury that it is apparent the error affected (or, as some cases

describe it, “tainted”) the verdict. Myles, 2015 WL 5231606, at *5; Bolden v. State, 423 S.W.3d

803, 813 (Mo. App. E.D. 2013).

       Some cases (and the State’s argument here) conflate the issue of whether an error taints

the verdict with the phrase “outcome determinative.” See, e.g., State v. Smith, 293 S.W.3d 149,

150 (Mo. App. S.D. 2009); State v. Jones, 296 S.W.3d 506, 513 (Mo. App. E.D. 2009). We

reject the notion that manifest injustice or miscarriage of justice can be so narrowly defined. The

convergence of the two concepts is understandable given that plain instructional error typically

results when the judge affirmatively instructs the jury, as opposed to here, where the judge’s

error is one of total omission. See, e.g. State v. Neal, 328 S.W.3d 374, 383 (Mo. App. W.D.

2010) (use of incorrect instruction totally excused State from its burden of proof); State v. Paro,

952 S.W.2d 339, 341–42 (Mo. App. E.D. 1997) (given instruction misstated elements of offense

and overstated maximum term of imprisonment). Although a finding of “outcome determinative”

naturally leads to a holding of manifest injustice or miscarriage of justice, the converse does not

follow. When an instruction is actually given, a reviewing court can discern whether a jury

following that instruction could have arrived at a verdict based on insufficient evidence or

misstated law. But where, as here, an appellate court has no logical trail to follow, using an

“outcome determinative” test precludes a complete examination of whether the trial court has “so



                                                  10
misdirected or failed to instruct the jury” that the verdict was tainted. State v. Magnum, 390

S.W.3d 853, 861 (Mo. App. E.D. 2013) (emphasis here).

       Regarding the effect of the absence of instructions, we find guidance in two cases: State

v. Williams and State v. Smith. In Williams, the Supreme Court of Missouri addressed, on plain

error review, the prejudicial effect of failing to submit to the jury (in written form) the

parenthetical note-taking portion of MAI-CR3d 302.01. Williams, 97 S.W.3d 462, 472 (Mo.

banc 2003). Though the trial court’s failure was “technically erroneous,” the court held the error

fell short of a miscarriage of justice because, by reading the instruction aloud, “the trial court

provided the jury with sufficient guidance” regarding the proper role of notetaking. Id.

       In Smith, our Western District colleagues used Williams’ “sufficient guidance” standard

to find plain error where a trial court failed to read MAI-CR3d 302.01’s parenthetical note-taking

section to the jury, despite the fact jurors were allowed to take notes. 4 Smith, 154 S.W.3d 461,

463 (Mo. App. W.D. 2005). That instruction admonishes the jury, inter alia, that notes taken

during trial are not evidence, that notes should not be assumed to be more accurate than juror

recollections, and that note-taking may interfere with each juror’s ability to observe the evidence

and witnesses as they are presented. Id. at 464; MAI-CR3d 302.01.

       At the foundation of Smith’s reasoning lay the observation that the Missouri Supreme

Court, by mandating that the note-taking language be included in the first instruction, “obviously

believed that there was potential for abuse from note-taking by jurors, unless they were given

guidance . . . and that the [other] existing mandatory instructions were not sufficient to provide

that guidance.” Id. at 470. The Smith panel first compared the contents of the missing instruction

to other instructions and oral statements, and identified where other directives were “functional
4
  The trial court in the instant case likewise failed to read MAI-CR3d 302.01’s parenthetical
information, but the record does not reveal whether the jury was permitted to take notes and this
is not a claimed error in this appeal.

                                                  11
equivalents,” i.e. whether they provided jurors with the same information as MAI-CR3d 302.01.

Id. at 466–70. For example, some of the information provided to jurors before recesses would

have implied that jurors could not discuss their notes, a prohibition also found in MAI-CR3d

302.01. Id. at 469. But much of the information included in the note-taking instruction was not

given elsewhere during trial, and in any event came in piecemeal fashion, thereby de-

emphasizing for the jurors the importance of their responsibility to focus on the evidence. Id. at

471.

       Our colleagues identified grave concerns about the jury’s ability to perform its fact-

finding mission despite the lack of guidance. The trial court did not warn jurors of the fact that

note-taking could interfere with the ability to listen to the evidence and observe the witness,

thereby failing to remind note-taking jurors “to minimize the resulting distraction so they would

not be abdicating their responsibilities . . . to listen to the evidence and observe witnesses.” Id. at

471. That concern, that jurors would rely on notes rather than listen and observe the evidence

(and remember the evidence individually), is one of the very reasons MAI-CR3d 302.01 exists.

Id. at 470. Further, our colleagues highlighted the importance of the jury’s understanding of

precisely what is (and what is not) “evidence.” Failing to read MAI-CR3d 302.01 allowed the

jury to assume their notes were evidence: it was a “stretch to believe that [admonitions from

other instructions, including MAI-CR 302.02] were the equivalent of advising the jurors, as

required by MAI-CR3d 302.01, that their notes were not evidence.” Id. at 470.

       Equally vital to Smith’s outcome was the fact that the missing instruction should have

been given at the beginning of the case. In “mandating that the note-taking information be read

to the jurors at the commencement of the trial, it is . . . obvious that the [Supreme] Court

believed that it was vital that jurors were made aware of [the possibility of being distracted from



                                                  12
the evidence] from the beginning.” Id. at 470–71. The jury’s duty to listen to the evidence and

observe the witnesses begins as soon as the first witness takes the stand, so the warning not to

over-rely on notes “would be useless, unless given at the beginning of trial.” Id. at 471.

       We find Smith’s approach consonant with the weighty interests implicated here: the roles

of jury and judge in our criminal justice system. The right to an impartial jury is enshrined in

both the federal and state constitutions. U.S. Const. amend. VI; Mo. Const. art. I, sec. 18(a). The

right to a jury trial is no procedural formality; it is a fundamental reservation of power in our

constitutional structure, meant to stand as a bulwark against “judicial despotism,” U.S. v.

Booker, 543 U.S. 220, 238–39 (2005), and to ensure the people’s ultimate control in the

judiciary, Blakely v. Washington, 542 U.S. 296, 305–06 (2004). Trial by jury has been called the

“most priceless” safeguard for the preservation of individual liberty. Irvin v. Dowd, 366 U.S.

717, 721 (1961). Under the Constitution, the institution of the criminal trial purports “to provide

a fair and reliable determination of guilt, and no procedure or occurrence which seriously

threatens to divert it from that purpose can be tolerated.” Estes v. Texas, 381 U.S. 532, 564

(1965) (Warren, C.J., concurring).

       Perhaps the jury’s most critical role is to assess evidence: a criminal defendant is entitled

to a “panel of impartial, ‘indifferent’ jurors [whose] verdict must be based upon evidence

developed at the trial.” Morgan v. Illinois, 504 U.S. 719, 727 (1992) (internal citation omitted)

(emphasis here). 5 See also Ring v. Arizona, 536 U.S. 584, 598 (2002) (by the time the Sixth

Amendment became law, the “jury’s role in determining critical facts … was entrenched.”)

(internal citation omitted). Instructions to avoid prematurely forming opinions about a case’s

5
  Insofar as we use them to establish a baseline for the jury’s constitutional function, U.S.
Supreme Court cases regarding the Sixth Amendment are instructive because, when it comes to
the right to an impartial jury, Missouri’s constitution affords greater protections than the federal
constitution. State v. Lang, 795 S.W.2d 598, 600 n. 1 (Mo. App. E.D. 1990).

                                                 13
merits help a juror base her verdict on the evidence; once a juror forms an opinion, she can no

longer be impartial. Irvin, 366 U.S. at 722.

       To safeguard the jury’s fact-finding role, courts must be alert to factors that may

undermine fairness in the fact-finding process, and must carefully guard against the dilution of

the principle that guilt must be established “by probative evidence” and beyond a reasonable

doubt. Estelle v. Williams, 425 U.S. 501, 503 (1976). Though the impact of a particular practice

on a verdict cannot always be fully determined, the “probability of deleterious effects on

fundamental rights calls for close judicial scrutiny.” Id. at 504. Courts must do the best they can

to evaluate the likely effects of a particular procedure, based on reason, principle, and common

human experience. Id. When there is an unacceptable risk of impermissible factors affecting a

jury’s verdict, a proceeding may be inherently prejudicial. Holbrook v. Flynn, 475 U.S. 560, 570

(1986). See also State v. Neal, 304 S.W.3d 749, 755 (Mo. App. S.D. 2010) (when used while

assessing erroneous jury instructions, “prejudice” means the potential for confusing or

misleading the jury).

       A jury’s execution of its duty necessarily depends on the instructions it receives from the

court. In Missouri, the trial court’s duty to instruct the jury on the law was established as early as

1876. See State v. Martin, 602 S.W.2d 772, 775 (Mo. App. E.D. 1980) (citing State v. Lane, 64

Mo. 319 (1876)). Towards the end of the nineteenth century, Justice Joseph Story explained the

intertwined duties of judge and jury:

       [It is] the duty of the court to expound the law, and that of the jury to apply the
       law as thus declared to the facts as ascertained by them. In this separation of
       functions of court and jury is found the chief value, as well as safety, of the jury
       system. Those functions cannot be confounded or disregarded without
       endangering the stability of public justice, as well as the security of private and
       personal rights.




                                                  14
Sparf v. United States, 156 U.S. 51, 106 (1985). “Upon the [trial] court rests the responsibility of

declaring the law.” Id. (emphasis here). That responsibility is related to the duty to define and

explain technical terms which the jury may otherwise misapply. State v. Jackson, 369 S.W.2d

199, 2015 (Mo. 1963).

       In finding prejudicial one trial court’s failure to read accurately a mandatory preliminary

instruction (MAI-CR 1.02, which at that time instructed voir dire panel members vis-à-vis their

behavior), we highlighted the importance of a judge accurately and consistently delivering

guidance to the jury. In doing so, we underscored the importance of Missouri’s pattern

instructions:

       MAI-CR instructions are the product of a Special Committee of the Missouri Bar
       appointed for the purpose of formulating pattern instructions for use in criminal
       cases followed by an interchange of ideas and redraftsmanship in cooperation
       with the Supreme Court towards the end that there be fewer reversals of
       convictions by reason of faulty instructions and so that statewide uniformity in the
       reading of instructions to juries in criminal cases would be achieved. The
       particular [preliminary] instruction here … is the product of thorough study by
       representatives of the circuit bench, prosecutors, defense counsel and law
       professors knowledgeable in the administration of criminal justice, adopted only
       after submission to many members of the Bar and consideration by both the
       Board of Governors of the Missouri Bar and the members of the Supreme Court.
       The Supreme Court mandated its reading to the jury by all trial judges of this state
       … We can conceive of no reason why these directions of the Supreme Court
       should not be followed by the trial courts of Missouri.

       [. . .] If we, the judiciary, constantly give currency to this practice, the value and
       benefits to be derived from the adoption of pattern instructions and the time and
       efforts extended by our committee of the Missouri Bar on Criminal Pattern
       Instructions will both be lost.

State v. Clifton, 549 S.W.2d 891, 896 (Mo. App. 1977). Strict compliance with pattern

instructions also promotes efficient appeals: we “could well do without the additional chore of

examining those cases where” parties assign error to “unnecessary deviations, modification[,]

subjective judicial constructions,” or, as here, deletions. Id. (internal quotation marks omitted).



                                                 15
       Before turning to the case at hand, we finally note that trial judges generally have great

influence over jurors, who are “quite sensitive” to any indications of the judge’s belief, and are

“inclined to draw conclusions” based on a judge’s behavior. State v. Montgomery, 251 S.W.2d

654, 657 (Mo. 1952). Relatedly, reviewing courts always presume jurors follow the trial court’s

instructions, even if the parties have provided incorrect legal theories during trial. See State v.

Cornelious, 258 S.W.3d 461, 469 (Mo. App. W.D. 2008).

       In the instant case, we conclude the trial court’s failure to read MAI-CR3d 300.06,

302.01, and 302.02 left the jury with insufficient guidance. (Weighing such intertwined

allegations of error together is within our discretion on plain error review, so we need not decide

whether failing to read one of two of the three missing instructions would hypothetically

constitute plain error. See State v. Callahan, 651 S.W.2d 186, 192 (Mo. App. W.D. 1982).) By

changing some text of MAI-CR3d 302.01 to the past tense and questioning the jury, the trial

court attempted to retroactively address some issues caused by failing to read those instructions

early in the case. The questions posed to the entire jury (e.g., “Did any of you conduct any

independent research”) may have addressed whether jurors discussed the case among

themselves, tweeted / e-mailed / blogged / texted about the case, independently researched the

allegations against Defendant, or visited the scene of the alleged crime as forbidden by the

instruction.

       However, multiple directives related to the jury’s fact-finding mission went unheard

altogether, or were given so late as to be “useless.” See Smith, 154 S.W. 3d at 471. Most

critically, the failure to read MAI-CR3d 302.01 and 302.02 left the jury without even the

definition of evidence. Notably, neither the judge’s comments and rulings nor the attorneys’

arguments and objections constitute evidence, as stressed in the instructions. But here the jury



                                                  16
was left in the dark on those matters, even though every case must be decided “only by the

evidence presented in the proceedings in [the] courtroom” (a directive that also went unheard

before the evidence began, when it mattered most). The missing MAI-CR3d 302.01 would have

offered not only a warning to avoid distractions, but also guidance in assessing evidence as it is

presented. The jurors should have been told to consider the witnesses’ manner while testifying,

the ability and opportunity of a witness to observe and remember matters, a witness’ bias or

prejudice, and the reasonableness of testimony in the context of the entire case. Instead, the jury

here was left rudderless as to its duty to examine the evidence.

       Further, the trial court made no inquiries whether the jury had complied with the

cautionary wording of MAI-CR3d 302.02, even though it changed the tense of portions of that

instruction. We accordingly conclude that the jury could have assumed as true facts solely

because they were included in or suggested by a question; that any juror could have drawn a

negative inference against Defendant because an objection was made; and that the jury could

have speculated as to the answer of any question to which an objection was sustained. See MAI-

CR3d 302.02. Nor did the trial court attempt to gauge whether the jury followed instructions that

go to the jury’s impartiality and duty to focus on the evidence. For example, MAI-302.01 tells

the jury to keep an open mind until all evidence has been presented. But instead of hearing that

instruction, especially without MAI-CR3d 300.06’s road map of the proceedings, which would

have informed the jury when it could begin drawing conclusions about what it had seen and

heard, the jury was left to form premature opinions about the case’s merits, thereby casting grave

doubt on the jury’s impartiality. See Irvin, 366 U.S. at 722.

       The State contends that our result should be guided by State v. Boyd, 600 S.W.2d 97

(Mo. App. E.D. 1980), where we declined to apply plain error review to a trial court’s failure to



                                                 17
read MAI-CR 1.08(a) at the first recess. At the time, MAI-CR 1.08(a) warned jurors not to

discuss any subject connected with the trial, or form or express any opinion about it, or access

any media related to the case. At subsequent recesses, a shorter but similar warning was given

via MAI-CR 1.08(b). Deeming the instruction “essentially procedural” (as opposed to

substantive instructions given before closing arguments and submission of the case), we opined

the issue had not been preserved for review. Boyd, 600 S.W.2d 97, 100 (Mo. App. E.D. 1980).

        Boyd is distinguishable on several grounds. First, as discussed above, Boyd broadly

applied Rule 28.03 to foreclose any review of unpreserved instructional error, a holding

supplanted by Wurtzberger’s rule that plain error review cannot be waived. Secondly, the Boyd

court noted that MAI-CR 1.08(b), which largely tracks MAI-1.08(a), was repeated at subsequent

recesses, thereby lessening the prejudice against the losing criminal defendant. The instant jury

received no such cumulative, parallel guidance. 6 Moreover, the instruction in Boyd has

undergone material revision since we decided that case. In contrast to MAI-CR 1.08, which was

enacted in 1974 and simply warned jurors against performing outside research or discussing the

trial, see State v. Abbott, 547 S.W.2d 853, 85 (Mo. App. 1977), the modern equivalent also

instructs jurors: “[i]t is important that your decision be based only on the evidence presented to

you in the proceedings in the courtroom,” MAI-CR3d 300.04. Such language underscores for the

jury the singular importance of untainted evidence, and by invoking the word “evidence”
6
  We acknowledge that MAI-CR3d 300.04.1 and 300.04.2 were given at the first recess and
subsequent breaks in this case. Those “reminder” instructions generally mirror MAI-CR3d
302.01’s prohibitions on performing research or communicating about the case, which may have
lessened the failure to give those admonitions at the outset. While the reminder instructions do
prohibit jurors from forming an opinion about the case, we find that warning (which is buried in
the middle of the instructions) insufficient to atone for not explicitly instructing jurors about
remaining impartial at the beginning of the case, as instructed by the MAI-CR committee. See
Smith, 154 S.W.3d at 471 (by offering some missing instructional information in “piecemeal”
fashion rather than at the beginning of the case, the trial court de-emphasized the importance of
the jury’s duties). And in any event, MAI-CR3d 300.04.1 incorporates the word “evidence,” a
vital term which remained undefined until after all the evidence was introduced.

                                                18
depends on the jury’s comprehension of the distinctions between evidence on one hand, and

questioning, objections, and argument on the other.

       Here, those distinctions should have been made by giving MAI-CR3d 302.02. Instead,

the trial court gave no guidance on the matter until all evidence had been introduced, all

objections had been made, and all questioning had stopped. Though the MAI-CR committee

deemed it vital that the jury was informed of its duties to remain impartial and focus on the

evidence “from the beginning” of the case, Smith, 154 S.W.3d at 470–71, in this case the jury

received no guidance on those issues until after the fact. The jury heard all the evidence without

being told what evidence is. It heard all the arguments, questions, and objections without

knowing how to distinguish them from, and consider them less important than, evidence. In

Smith, the mere failure to warn the jury about the potential perils of note-taking-related

distraction was plain error. The deleterious effects on the jury’s ability to assess the evidence and

remain impartial in this case are even graver. Those effects require us to conclude that the verdict

must be set aside.

       We therefore hold that the jury did not receive “sufficient guidance” from the trial court,

resulting in a manifest injustice or miscarriage of justice. Failing to give instructions based on

MAI-CR3d 300.06, 302.01, and 302.02 at the outset of the trial was accordingly plain error.

                                            Conclusion

       The judgment of the Defendant’s conviction for burglary in the first degree, Section

569.160, is reversed, and the cause is remanded for a new trial in accordance with this opinion.




                                               ____________________________
                                               Mary K. Hoff, Judge

Robert G. Dowd, Jr., Presiding Judge and Roy L. Richter, Judge, concur.

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