                                          In the
                        Missouri Court of Appeals
                                  Western District
 STATE OF MISSOURI,                              )
                                                 )
               Respondent,                       )   WD82293
                                                 )
 v.                                              )   OPINION FILED: January 28, 2020
                                                 )
 RAY A. JOHNSON,                                 )
                                                 )
                 Appellant.                      )

             Appeal from the Circuit Court of Jackson County, Missouri
                      The Honorable Patrick W. Campbell, Judge

 Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
                             and Gary D. Witt, Judge


       Ray A. Johnson ("Johnson") appeals his convictions of first-degree murder and

armed criminal action following a jury trial. Johnson claims the State made an improper

acquittal-first argument during closing that requires reversal of his convictions and a new

trial. Finding no reversible error, we affirm.

                          Factual and Procedural Background

       Johnson does not challenge the sufficiency of the evidence to support his

convictions of first-degree murder and armed criminal action. Viewed in the light most
favorable to the verdict, the evidence established that two witnesses driving in a vehicle

near Bob's bar observed a man later identified as Johnson shoot a male victim during a

physical altercation outside of the bar. The witnesses then observed Johnson standing over

the victim and shooting him four or five more times. Johnson fled the scene after the

shooting.

       Surveillance video showed Johnson and the victim getting into the physical

altercation, and showed the two witnesses driving by in a vehicle. Other evidence

established that Johnson and another man, William Brown ("Brown"), spoke with the

victim inside the bar; that Brown and the victim then exited the bar together; and that

Johnson and another one his friends hurried out of the bar behind Brown and the victim. It

was at this point that Johnson instigated an altercation with the victim.

       Shell casings found at the scene were determined to have been fired from the same

gun. Parts of broken eyeglasses found in two locations near the scene were genetically

matched to Johnson, and video surveillance showed Johnson wearing the located

eyeglasses just prior to the shooting. When Johnson was detained four days after the

shooting, he was wearing new eyeglasses that still had the fashion designer sticker attached.

       The victim's girlfriend identified Johnson from the bar's interior surveillance system

based on the clothing he was reported to have been wearing at the time he shot the victim.

She also identified Johnson as someone the victim might have been having trouble with.

       An autopsy established that the victim died of multiple gunshot wounds, and that at

least one of the gunshots was fired from within three feet. The victim's gunshot wounds

were on the back side of his left shoulder, clustered on the right side of the abdomen, on

                                              2
his hand, and on his buttocks. Bullets traveled through the large blood vessels in the

victim's right leg, and through the victim's lung and kidney.

       Johnson acknowledged that he was involved in an altercation with the victim just

before the shooting, and that his eyeglasses were broken during the altercation. Johnson

denied, however, that he had a gun or that he was the shooter. Johnson claimed another

unidentified individual shot the victim. Johnson's trial counsel aggressively challenged at

trial all of the evidence and testimony that tended to identify Johnson as the shooter, and

argued that the police had rushed to judgment.

       At trial, the jury was instructed on first-degree murder, and the lesser-included

offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter.

During closing argument, the State discussed the essential elements of murder in the first

degree and addressed the evidence supporting those elements, including the element of

deliberation. The State then summarized its argument, and addressed the lesser-included

offense instructions as follows:

       So we know the victim was shot by the defendant. We know that he dies as
       a result of that. We know that the defendant knew that his conduct was
       practically certain to cause the death of him, of the victim. And we know
       that he acted with deliberation.

       That's it. That's murder in the first degree. That's all you have to find to find
       him guilty of murder in the first degree. The State has proven beyond a
       reasonable doubt that that is exactly what happened and you should return a
       verdict of guilty on that charge.

       Now, you're going to notice there are these things we call lesser included
       offenses for Count I. These are not separate charges. We have charged the
       defendant with murder in the first degree. So you are only going to get to
       these if you find he is not guilty of murder first degree.


                                              3
       So the way this works is, you find him guilty of murder in the first degree,
       which I anticipate you will for the reasons we've already discussed. You
       don't look at these and you move on to Count II [the armed criminal action
       verdict director]. You don't have to even look at these instructions if you've
       done that.

       [Discussion of the difference between the essential elements of murder in the
       first degree and second-degree murder, and why the evidence would not
       support the essential elements of the remaining lesser included offenses.]

       You aren't even going to get to these if you find him guilty of murder in the
       first degree. You don't have to go through this analysis. If you find him
       guilty of murder in the first degree, again, as I anticipate you will because of
       the reasons we've discussed, and you move on to Count II.

(Emphasis added.) Johnson did not object, though he now complains on appeal that the

emphasized portion of the State's closing was an improper acquittal-first argument.

       Johnson's closing argument was devoted exclusively to the theory that Johnson had

been misidentified as the shooter. The jury instructions were not discussed. Nor did

defense counsel suggest that any of the lesser-included offense instructions were more

appropriately supported by the evidence than the instruction for first-degree murder.

       The jury convicted Johnson of first-degree murder and armed criminal action.

Johnson filed this timely appeal.

                                          Analysis

       Johnson raises two points on appeal. First, he alleges that the trial court committed

plain error when it failed to sua sponte intervene and issue a corrective instruction to the

jury because the State's argument that the jury had to find Johnson not guilty of first-degree

murder before it could consider the lesser-included offenses was an improper acquittal-first

argument that resulted in manifest injustice and a miscarriage of justice requiring a new


                                              4
trial. Second, Johnson argues that the prosecution plainly erred when it made an improper

acquittal-first argument which resulted in manifest injustice and a miscarriage of justice

requiring a new trial.

                                    Standard of Review

       Johnson concedes that both of his points on appeal are subject only to plain error

review as neither was preserved for appellate review. Plain error review "is discretionary

and limited to determining whether a plain error resulted in a 'manifest injustice or

miscarriage of justice[.]'" State v. Wood, 580 S.W.3d 566, 578 (Mo. banc 2019) (citing

Rule 30.20). "The threshold issue in plain error review is whether the [trial] court's error

was facially 'evident, obvious, and clear.'" Id. at 579 (quoting State v. Jones, 427 S.W.3d

191, 195 (Mo. banc 2014)). "If the appellant establishes a facially 'evident, obvious, and

clear' error, then this Court will consider whether the error resulted in a manifest injustice

or miscarriage of justice." Id. (quoting Jones, 427 S.W.3d at 195). "To obtain a new trial

on direct appeal based on a claim of plain error, the appellant must show 'the error was

outcome determinative.'" Id. (quoting State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc

2006)).

                                          Point One

       In his first point on appeal, Johnson argues that the trial court plainly erred when it

failed to sua sponte intervene and give a curative instruction when the State argued during

closing that the jury could consider the lesser-included offense instructions "only . . . if you

find [Johnson] is not guilty of murder first degree." Johnson argues this was an improper



                                               5
acquittal-first argument, and that the trial court had a duty to intervene to correct the

misstatement of the law.

       "Missouri's instructions on lesser-included offenses do not require that the

defendant first be acquitted of the greater offense before the jury can consider the lesser

offense." Tisius v. State, 183 S.W.3d 207, 217 (Mo. banc 2006) (citing State v. Wise, 879

S.W.2d 494, 517 (Mo. banc 1994)). "Instead, MAI-CR3d 313.04 provides that juries are

allowed to consider the lesser-included offense if they 'do not find the defendant guilty' of

the greater offense." Id. "Therefore, an acquittal first argument is a misstatement of the

law and can constitute reversible error." Id.

       The State argues that the challenged statement made during closing is not an

acquittal-first argument. The State contends that telling a jury they must find a defendant

"not guilty" of a greater offense before reaching lesser-included offense instructions is not

a direction that the jury must acquit of the greater offense. The State therefore contends

that telling a jury they must find a defendant "not guilty" of a greater offense is

indistinguishable from telling a jury they can only consider lesser-included offense

instructions if they "do not find the defendant guilty," as Johnson's jury was instructed. We

disagree.

       In every criminal case, MAI-CR4th 402.05 must be read to the jury. See MAI-

CR4th 402.05, Notes on Use; see also State v. Goucher, 111 S.W.3d 915, 916-17 (Mo.

App. S.D. 2003) (finding reversible error when MAI-CR3d 302.05, the predecessor to

MAI-CR4th 402.05, was not read to the jury). MAI-CR4th 402.05 was read to the jury in

this case. MAI-CR4th 402.05 provides, in pertinent part, that the jury's "verdict, whether

                                                6
guilty or not guilty, must be agreed to by each juror." (Emphasis added.) A finding of

"not guilty" thus requires a jury to unanimously acquit a defendant of a charged offense.

As a result, the State's argument that the jury had to find Johnson "not guilty" of first-

degree murder before they could reach the lesser-included offense instructions was an

improper acquittal-first argument.

       Though the State's argument was improper, that does not necessitate a conclusion

that the trial court plainly erred by failing to sua sponte intervene to issue a curative

instruction. This court "rarely finds plain error in closing argument, and reversal is

warranted only if the defendant shows the improper argument 'had a decisive effect on the

jury's determination.'" Wood, 580 S.W.3d at 579 (quoting State v. McFadden, 369 S.W.3d

727, 747 (Mo. banc 2012)). That is because the "absence of an objection and request for

relief during closing arguments mean that any intervention by the trial court would have

been uninvited and may have caused increased error." State v. Perry, 275 S.W.3d 237, 245

(Mo. banc 2009) (citing State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 1995)). "Indeed,

the failure of defense counsel to object to improper argument is often strategic in nature,

and the taking of uninvited action by the court in such a case simply may emphasize the

matter in a way defendant chose not to do." Id. (citing State v. Cole, 71 S.W.3d 163, 171

(Mo. banc 2002)).

       Johnson's defense strategy was misidentification. Johnson argued he was not the

shooter. As such, Johnson's trial counsel devoted no attention to the verdict directing

instructions during closing argument, and correspondingly, did not direct the jury's

attention to lesser-included instructions in the alternative to the first-degree murder

                                            7
instructions. The trial court did not evidently, obviously, or clearly error by failing to take

the uninvited action of issuing a curative instruction after the State's improper acquittal-

first argument, particularly in light of Johnson's trial strategy which did not focus on the

degree of Johnson's criminal culpability, and instead focused on whether Johnson had been

misidentified as the shooter. It is also significant that, after making the improper acquittal-

first argument, the State told the jury -- no less than three separate times -- that, if "you find

him guilty of murder in the first degree, . . . [y]our don't look at these" lesser included

offense instruction. These repeated statements (that a conviction of first-degree murder

made it unnecessary to consider the lesser offenses) were entirely accurate and proper, and

were the primary point the prosecution sought to make with respect to the lesser offenses.

       Johnson disagrees and cites State v. Holmsley for the proposition that

"'[m]isstatements of the law are impermissible during closing arguments, and the trial judge

has a duty to restrain such arguments.'" 554 S.W.3d 406, 410 (Mo. banc 2018) (quoting

State v. Anderson, 306 S.W.3d 529, 543 (Mo. banc 2010)). Johnson thus argues that our

reluctance to find plain error when a trial court fails to intervene during closing in an

uninvited manner must yield to the trial court's duty to restrain misstatements of the law

during closing.

       Johnson's argument fails to recognize that neither Holmsley nor Anderson were

plain error cases, as both involved timely objections by trial counsel to purportedly

improper statements of the law by the State during closing. Holmsley, 554 S.W.3d at 411

(noting the "trial court acknowledged the argument was improper and sustained [the

defendant's objection]"); Anderson, 306 S.W.3d at 543 (noting that trial counsel objected

                                                8
to the State's argument as a purported misstatement of the law). We review a trial court's

response to a timely objection during closing argument for abuse of discretion. Holmsley,

554 S.W.3d at 410 citing State v. Deck, 303 S.W.3d 527, 540 (Mo. banc 2010) (holding

that preserved claim of trial court error during closing argument is reviewed for an abuse

of discretion)). Plain error review is a higher standard of review than review for an abuse

of discretion. State v. Walter, 479 S.W.3d 118, 123 (Mo. banc 2016) (noting that plain

error review is a lower standard of review than review for an abuse of discretion). Holmsley

and Anderson do not modify the standard of plain error review as it is applied to

unpreserved claims of trial court error involving misstatements of the law during closing

argument.

       Even if the trial court's failure to sua sponte intervene in this case was facially

evident, obvious and clear error (which we do not find), to obtain a new trial on direct

appeal based on a claim of facially evident, obvious and clear error, Johnson must show

that the trial court's failure to sua sponte issue a curative instruction resulted in a manifest

injustice or miscarriage of justice because it was "outcome determinative." Wood, 580

S.W.3d at 579.

       The State relies on Tisuis to argue that any error associated with its acquittal-first

argument was not outcome determinative because the jury was properly instructed and the

jury can be assumed to follow the law. In Tisuis, the State argued during closing in a first-

degree murder case that "[y]ou look at murder second if and only if you do not believe that

we proved [the essential elements of first-degree murder] beyond a reasonable doubt." 183

S.W.3d at 216. Trial counsel did not object. Id. The Supreme Court rejected Tisius's claim

                                               9
of ineffective assistance of counsel. Id. at 217. The Court did not determine whether the

State's argument was an improper acquittal-first argument, and instead held that because

"[t]he jury was properly instructed on lesser-included offenses with an instruction tracking

MAI-CR3d 313.04," and because "[t]he jury is presumed to have followed the trial court's

instructions," there was no prejudice to the defendant. Id.

         Here, it is uncontested that the jury was properly instructed, with an instruction that

tracked MAI-CR3d 313.04, that it could not reach the lesser-included instructions unless

"they do not find [Johnson] guilty of the greater offense." However, the jury was also

instructed by MAI-CR4th 402.05 that to find Johnson "not guilty," they had to do so by

unanimous verdict. The State's improper acquittal-first argument, which suggested the jury

could not consider the lesser-included offense instructions unless it found Johnson not

guilty of first-degree murder, cannot be summarily disregarded as outcome determinative

on the basis that the jury can be presumed to have followed the law as instructed.

         However, Tisius also held that even if the argument made by the State in that case

"were considered an 'acquittal first' argument,1 the strength of the evidence of deliberation

precludes a finding of prejudice." Id. In an effort to distinguish Tisius, Johnson attempts

to dispel the strength of the evidence of his deliberation.




          1
            Though Tisius did not determine whether the State's argument was an acquittal-first argument, we question
whether it was. The State's argument in Tisius that the jury could reach the lesser-included offense instructions
"only if you do not believe that we proved [the elements of first-degree murder] beyond a reasonable doubt" appears
to be the functional equivalent of the guidance provided by approved criminal instructions that a jury is allowed to
consider lesser-included offense instructions if they "do not find the defendant guilty" of the greater offense. In
contrast, the State's argument in this case was plainly an acquittal-first argument for the reasons we have explained.

                                                         10
        "Deliberation" is "cool reflection for any length of time no matter how brief."

Section 565.002(3).2 Johnson acknowledges that the following evidence was consistent

with establishing deliberation: (i) Johnson's delivery of four to five additional shots while

standing over the victim after their physical altercation had ended; (ii) the fact that multiple

gunshot wounds were inflicted; (iii) the fact that Johnson fled from the scene and failed to

seek medical help for the victim; (iv) the fact that at least one of the gunshot wounds was

the result of a shot fired within two to three feet of the victim; and (v) the fact that the gun

used to shoot the victim was concealed or destroyed. Johnson argues that even though this

evidence was sufficient to establish deliberation beyond a reasonable doubt, it was not

"strong" when understood in the context of the distinction between first-degree and second-

degree murder. See State v. O'Brien, 857 S.W.2d 212, 218 (Mo. banc 1993) (holding that

"[b]oth second degree and first degree murder require that the act be intentionally done,"

but the offenses are distinguished by the requirement of deliberation for first-degree

murder).

        That, however, is not the lens applied in Tisius, where the Court did not engage in a

comparative analysis of the evidence in the context of first-degree and second-degree

murder, and instead summarily stated that the evidence of deliberation was strong,

precluding a finding of prejudice. Tisius, 183 S.W.3d at 217. Earlier in the opinion, the

Court recounted the "substantial" and "overwhelming" evidence of deliberation. Id. at 213.

That evidence included that Tisius possessed a gun; spoke for a period with officers before


        2
          All statutory references are to RSMo 2016 as supplemented through April 23, 2016, the date of Johnson's
charged conduct, unless otherwise noted. Effective August 28, 2017, the definition of "deliberation" now appears at
section 565.002(5).

                                                        11
using the gun to shoot one of the officers as part of an escape attempt; and shot an already

wounded officer a second time while the officer was lying on the ground. Here, Johnson

possessed a gun; had a conversation with the victim inside the bar; watched the victim

leave the bar, then hurriedly followed the victim out of the bar with the intent to confront

the victim; instigated a physical altercation with the victim before shooting him; delivered

four to five additional shots into the victim while standing over the already wounded

victim; fled the scene; and thereafter concealed or destroyed the gun used to shoot the

victim. This evidence of deliberation is as strong as, if not stronger than, the evidence of

deliberation in Tisius.

       "'The entire record is considered when interpreting a closing argument, not an

isolated segment.'" Wood, 580 S.W.3d at 579 (quoting McFadden, 369 S.W.3d at 747).

Though the State's argument during closing was an improper acquittal-first argument,

"[t]he state's isolated reference [ ] did not change the outcome of this case." Wood, 580

S.W.3d at 580. Johnson has not shown "a manifest injustice justifying the rare step of

finding plain error based on statements made in closing argument." Id. (citing State v.

Anderson, 79 S.W.3d 420, 439 (Mo. banc 2002) (holding that "[s]tatements made in closing

argument will only rarely amount to plain error")).

       The trial court did not plainly err when it failed to sua sponte intervene to provide a

curative instruction during the State's closing argument. Point One is denied.




                                             12
                                              Point Two

       In his second point on appeal, Johnson argues that the prosecution plainly erred

when it made an improper acquittal-first argument which resulted in manifest injustice and

a miscarriage of justice, entitling him to a new trial.

       Before addressing the merits of this point, we must first determine its cognizability

on direct appeal. The State argues that claims on appeal must identify trial court error as

required by Rule 84.04(d), which addresses the form of points relied on. The State thus

argues that because Johnson's point on appeal seeks plain error review of the prosecutor's

conduct and does not allege trial court error, the claim is not cognizable on direct appeal.

       Johnson argues that freestanding claims of prosecutorial misconduct must be

cognizable on direct appeal. He relies on Tisius, which held that "[a] freestanding claim of

prosecutorial misconduct is generally not cognizable in a Rule 29.15 proceeding," because

"[i]f the alleged misconduct was apparent at trial, then it is an issue for direct appeal, not a

Rule 29.15 proceeding." 183 S.W.3d at 212. After stating this general principle, Tisius

held that "a claim involving improper argument was apparent at trial and could have been

raised on direct appeal." Id.

       We agree with Johnson that claims of prosecutorial misconduct arising out of

conduct which was apparent at trial are cognizable, and in fact must be raised, if at all, on

direct appeal. Id. Because Johnson's claim of prosecutorial misconduct involves improper

closing argument which was apparent at trial, the claim of prosecutorial misconduct had to

be raised, if at all, on direct appeal. Id.



                                                 13
       We do not agree, however, that claims of prosecutorial misconduct that are

cognizable on direct appeal are "freestanding" claims, a label which suggests the claims

are subject to review (plain or otherwise) independent of alleged trial court error. Certainly,

preserved claims of prosecutorial misconduct apparent at trial are readily framed in terms

of trial court error as required by Rule 84.04(d) based on the trial court's denial of a

defendant's timely objection, request for curative relief (i.e. a curative instruction or a

mistrial), or motion for new trial. Similarly, where a claim of prosecutorial misconduct is

not preserved at trial, the claim can still be raised in a point relied that complies with Rule

84.04(d) by alleging trial court error in failing to sua sponte intervene to address the

prosecutorial misconduct that was apparent at trial. This observation is aptly demonstrated

by Johnson's first point on appeal.

       We therefore conclude that although claims of prosecutorial misconduct apparent at

trial are cognizable on direct appeal, they are not "freestanding," and must be framed in

terms of trial court error as required by Rule 84.04(d). See, e.g., State v. Forrest, 183

S.W.3d 218, 226-27 (Mo. banc 2006) (reviewing a claim of trial court error based on a

prosecutor's improper closing arguments alleged to rise to the level of prosecutorial

misconduct); State v. Zink, 181 S.W.3d 66, 71 (Mo. banc 2005) (reviewing claim of trial

court error in sustaining State's objection to admission of report that had not been timely

disclosed to the defendant, raised in the context of a claim of prosecutorial misconduct);

State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998) (refusing to review two claims of

prosecutorial misconduct where both claims were not preserved for appellate review

because neither claim was raised with the trial court by objection at trial or in motion for

                                              14
new trial); State v. Roberts, 948 S.W.2d 577, (Mo. banc 1997) (reviewing a claim of trial

court error in denying a motion for mistrial that alleged prosecutorial misconduct in

commenting about evidence that had been suppressed); State v. Doss, 659 S.W.2d 273,

273-74 (Mo. App. E.D. 1983) (reviewing trial court's denial of a motion for new trial which

raised an issue of prosecutorial misconduct); State v. Peterson, 833 S.W.2d 395, 396 (Mo.

App. S.D. 1992) (reviewing a claim of trial court error in denying a motion for new trial

based on a prosecutor's alleged misconduct). As a result, Johnson's second point on appeal,

which purports to assert a freestanding claim of prosecutorial misconduct untethered to a

claim of trial court error, has no merit because our review on appeal is limited to trial court

error.3 See section 512.160.2 ("No appellate court shall reverse any judgment, unless it

believes that error was committed by the trial court against the appellant, and materially

affecting the merits of the action.")

         The propriety of this conclusion is underscored by Johnson's unsupported

contention in his second point on appeal that a "freestanding" claim of prosecutorial

misconduct authorizes a court to award a new trial even in the absence of trial court error.


         3
           We recognize that our Supreme Court has used the phrase "freestanding claims of prosecutorial
misconduct" on two occasions in McIntosh v. State, 413 S.W.3d 320, 331 (Mo. banc 2013) and Tisius, 183 S.W.3d
at 212. But in both cases, the court referred to the prosecutorial misconduct claim as "freestanding" because it was
raised in a Rule 29.15 motion divorced from a claim of ineffective assistance of counsel. In rejecting the ability to
raise "freestanding claims of prosecutorial misconduct" in Rule 29.15 motions when the alleged improper conduct
was apparent at trial, our Supreme Court effectively held that such claims are no more than claims of trial court
error, and that "[c]laims of trial error will only be considered in a Rule 29.15 motion where fundamental fairness
requires, and then, only in rare and exceptional circumstances." McIntosh, 413 S.W.3d at 331; Tisius, 183 S.W.3d at
212. Though McIntosh and Tisius support the conclusion that claims of prosecutorial misconduct apparent at trial
can, and in fact must, be raised on direct appeal, neither case can be read for the proposition that prosecutorial
misconduct claims cognizable on direct appeal are "freestanding" claims that can be reviewed independent of a
claim of trial court error.
          In contrast, claims of prosecutorial misconduct that are appropriately raised in post-conviction proceedings
because they were not apparent at trial (for example, Brady violations), are, by their very nature, "freestanding"
claims of constitutional error because they could not have been raised at trial, and because they cannot be attributed
to ineffective assistance of counsel.

                                                         15
Johnson argues that he is entitled to a new trial because we should send a message to

prosecutors who, (according to Johnson), persist in making improper acquittal-first

arguments. However, "[t]he touchstone of due process in cases involving prosecutorial

misconduct is the fairness of the trial, not the culpability of the prosecutor." Roberts, 948

S.W.2d at 605 (citing Smith v. Phillips, 455 U.S. 209, 219 (1982)). "The court seeks to

ensure that the defendant receives a fair trial, not to punish society at large for the

prosecutor's misconduct." Id. (citing Smith, 455 U.S. at 219).

       In Smith, the United States Supreme Court reviewed a claim of prosecutorial

misconduct involving a Brady4 violation. 455 U.S. at 218-21. Though Smith involved an

application for federal habeas relief, and not a direct appeal, its guidance on the subject of

affording relief for prosecutorial misconduct is nonetheless instructive. In Smith, an

intermediate court of appeals concluded "that the prosecutor's failure to disclose [a juror's

job] application, without more, violated respondent's right to due process of law." Id. at

218. In rejecting the contention that "the appearance of justice" is sufficient without a

finding of trial prejudice to justify awarding a new trial, the United States Supreme Court

noted that the focus cannot be on the prosecutor's misconduct, but must instead be on the

effect of the misconduct on the trial. Id. at 219-20.

       Nor do we believe the constitutional obligation [to disclose unrequested
       information] is measured by the moral culpability, or willfulness, of the
       prosecutor. . . . If the suppression of [] evidence results in constitutional error,
       it is because of the character of the evidence, not the character of the
       prosecutor.



       4
           Brady v. Maryland, 373 U.S. 83 (1963).

                                                    16
Id. at 220 (quoting United States v. Agurs, 427 U.S. 97, 110 (1976)).

         Similarly, where a claim of prosecutorial misconduct is apparent at trial, and is

therefore cognizable on direct appeal, we concern ourselves with the impact of the alleged

misconduct on the fairness of the defendant's trial, and not on punishing the prosecutor. In

State v. Forrest, 183 S.W.3d 218, 226-27 (Mo. banc 2006), a defendant claimed trial court

error on direct appeal based on the prosecutor's improper closing arguments which were

alleged to rise to the level of prosecutorial misconduct. Our Supreme Court held:

         In situations involving prosecutorial misconduct, the test is the fairness of
         the trial, not the culpability of the prosecutor. "Where prosecutorial
         misconduct is alleged, the erroneous action must rise to the level of
         'substantial prejudice' in order to justify reversal." "The test for 'substantial
         prejudice' is whether the misconduct substantially swayed the judgment."

Id. (quoting State v. Peterson, 833 S.W.2d 395, 398 (Mo. App. S.D. 1992)). In Forrest,

the defendant's claim of prejudice was rejected as there was "nothing other than speculation

[provided by the defendant] that exclusion of [the improper argument] would have changed

the outcome of his trial." Id. at 228.

         We reach the same conclusion here. "We do not condone the conduct of the

prosecutor[] in this case."5 Smith, 455 U.S. at 220. But, as we concluded in connection


          5
            We cannot emphasize enough that prosecutors must avoid using terms or phrases that plainly fall into the
category of acquittal-first arguments. Telling a jury they must first find a defendant not guilty of a greater offense
before lesser-included offense instructions can be reached is plainly an improper acquittal-first argument. There is
virtually no explanation that will excuse such an argument from being made by a prosecutor in the future. "[T]he
responsibility of a public prosecutor differs from that of the usual advocate." In re Schuessler, 578 S.W.3d 762, 773
(Mo. banc 2019) (quoting State v. Herrington, 534 S.W.2d 44, 50 (Mo. banc 1976)). "A prosecutor 'is not an
advocate in the ordinary sense of the word, but is the people's representative, and [the prosecutor's] primary duty is
not to convict but to see that justice is done.'" Id. (quoting Herrington, 534 S.W.2d at 49). "A 'prosecutor is under a
duty to consider the public interest in the fair administration of criminal justice.'" Id. (quoting State ex rel. Norwood
v. Drumm, 691 S.W.2d 238, 241 (Mo. banc 1985)). The failure to abide by this duty may well expose a prosecutor
to discipline for professional misconduct. See, e.g., id.; State v. Sherman, 305 Kan. 88, 114-15 (2016) ("A
prosecutor who knowingly and intentionally disregards the dictates of justice in Kansas courts does so at his or her
peril," subjecting the prosecutor to "the traditional remedy of a disciplinary referral," or to an order on the trial

                                                           17
with our discussion of Johnson's first point on appeal, (the only point that was properly

framed in terms of trial court error), the State's improper acquittal-first argument did not

change the outcome of Johnson's trial. This conclusion is not altered merely because

Johnson's second point on appeal is improperly framed as a freestanding claim of

prosecutorial misconduct untethered to a claim of trial court error.

        Point Two is denied.

                                                  Conclusion

        The trial court's judgment is affirmed.



                                                     __________________________________
                                                     Cynthia L. Martin, Judge


All concur




court's own motion directing an offending prosecutor to "show cause why the prosecutor should not be found in
contempt of court for his or her misconduct"); In re Howes, 52 A.3d 1 (D.C. Ct. App. 2012) (holding that prosecutor
was subject to disbarment for flagrant violation of ethical duties).

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