            SUPREME COURT OF MISSOURI
                                       en banc
STATE OF MISSOURI,                        )
                                          )
       Respondent,                        )
                                          )
v.                                        )      No. SC94658
                                          )
CHADWICK LELAND                           )
WALTER,                                   )
                                          )
       Appellant.                         )


           APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY
                    The Honorable Larry D. Harman, Judge

                            Opinion issued January 26, 2016

       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,

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.




1
 Among methamphetamine users, “fire” refers to a “good” or “excellent” quality drug.
However, there was no evidence presented as to whether Walter knew the terminology
employed by methamphetamine users.
       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. 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. 2 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

2
  Neither defense counsel nor the trial court were presented with an advance copy of the
state’s slideshow. Accordingly, the first opportunity they had to view it was
contemporaneously with the jury during the state’s closing argument. However, due to
the configuration of the courtroom, it has been represented that it was not possible to
observe the state, the jury, and the slideshow at the same time. Defense counsel and the
trial court both indicated they were attempting to observe either the state and/or the jury
and did not watch the slides during closing argument. At some point in time, after the
jury had retired, defense counsel either saw or was made aware of the objectionable
photograph embedded within the slideshow. Defense counsel raised the objection to the
photograph after the jury returned with its verdict. Any objection made during
deliberations, assuming defense counsel knew of the objectionable photograph at that
time, would have had no impact as the jury had already been instructed and retired.
                                              3
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 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



3
  Contrary to Judge Wilson’s position in his dissenting opinion, Walter’s failure to object
to the admission at trial of Walter’s photograph with the word “GUILTY” superimposed
across the photograph makes his claim of error unpreserved. State v. Carter, 415 S.W.3d
685, 691 (Mo. banc 2013). The fact that he raised the alleged error in his motion for new
trial does not change his unpreserved error, which can be reviewed only as plain error,
into preserved error, which can be reviewed for an abuse of discretion of the trial court.
                                              4
         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) (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)).

                                              5
        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 reversed based on plain error in closing argument only when it is

established that the argument had a decisive effect on the outcome of the trial and

amounts to manifest injustice.” State v. Edwards, 116 S.W.3d 511, 536-37 (Mo. banc

2003), cert. denied, 540 U.S. 1186, 124 S. Ct. 1417, 158 L. Ed.2d 92 (2004); Rule 30.20.

“The defendant’s failure to object to an improper argument is often strategic, and

uninvited intervention may emphasize the matter in a way the defendant chose not to.”

State v. Carter, 415 S.W.3d 685, 691 (Mo. banc 2013). In reviewing closing arguments,

this Court examines the context of the argument made in light of the entire record. State

v. Anderson, 306 S.W.3d 529, 543 (Mo. banc 2010), cert. denied, 562 U.S. 931, 131 S.

Ct. 327, 178 L. Ed.2d 212 (2010); State v. Taylor, 298 S.W.3d 482, 510 (Mo. banc 2009),

cert. denied, 560 U.S. 928, 130 S. Ct. 3323, 176 L. Ed.2d 1226 (2010); Edwards, 116

S.W.3d at 537.

                                          Analysis

        Walter challenges the trial court’s denial of his motion for new trial based upon an

objectionable photograph in the state’s closing argument. Walter asserts that the state’s

use of an altered photograph depicting him in his bright orange prison jumpsuit and with

the word “GUITY” stamped across his face in big, red, block letters deprived him of a

fair trial. Walter claims the only purpose for the altered photograph was to inflame the

jury.



                                              6
                       Use of the altered photograph was improper

       Upon Walter’s request, the trial court ordered the state to provide Walter and the

trial court a copy of the slideshow it used during its closing argument. The state fully

complied with this order and reduced the images to printed pages that were able to be

included in the legal file for appellate review. 4 The slideshow consisted of a title page,

fourteen typed pages with the state’s evidence and/or timeline, three diagrams of the

residence, and twenty-two separate photographic images, the last image being the altered

photograph of Walter in his orange prison jumpsuit.

       During closing argument, the state is allowed to argue the evidence and all

reasonable inferences from the evidence. State v. Brown, 337 S.W.3d 12, 14 (Mo. banc

2011). While the state has wide latitude in closing arguments, closing arguments must

not go beyond the evidence presented, and courts should “exclude ‘statements that

misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or

otherwise tend to confuse the jury.’” State v. Deck, 303 S.W.3d 527, 543 (Mo. banc

2010), cert. denied, 561 U.S. 1028, 130 S. Ct. 3505, 177 L. Ed.2d 1095 (2010). Further,

a prosecutor may not “stray beyond the evidence presented to the jury, suggest special or

personal knowledge, or make ad hominem attacks designed to inflame the jury.” State v.

Rasheed, 340 S.W.3d 280, 286 (Mo. App. E.D. 2011). “The latitude given to parties in



4
  Given the inclination toward the ever-increasing use of technology in our daily lives and
the courts, it is inevitable that there will be an increase in the use of more technology
during trials. To control the potential erroneous and prejudicial impact upon a jury,
attorneys are encouraged to provide a preview of any slideshow to defense counsel before
showing it to a jury. This simple act is not burdensome and could prevent the necessity
of remanding a case for a new trial.
                                                 7
closing does not serve as an end run around the law of evidence.” Brown, 337 S.W.3d at

15.

       The state argues that the photograph was admitted as part of an exhibit with

Walter’s booking records. 5 The photograph in the exhibit was in an unaltered form, not

bearing the red, block letters spelling “GUILTY” across Walter’s face. Since the state is

allowed to make inferences from the evidence, it asserts there was no error in altering the

photograph and placing it in the closing argument slideshow. This Court disagrees.

       Closing argument grants each side the opportunity to highlight the evidence that

was presented. Using visual aids in explaining a case to a jury is acceptable, but the

visual aid must contain admissible evidence. Matter of Passman’s Estate, 537 S.W.2d

380, 386 (Mo. banc 1976). Parties are not allowed the opportunity “to present altered

versions of admitted evidence to support [his or her] theory of the case ….” State v.

Walker, 341 P.3d 976, 985 (Wash. 2015); see also In re Glasmann, 286 P.3d 673, 678

(Wash. 2012) (“Indeed, here the prosecutor’s modification of photographs by adding

captions was the equivalent of unadmitted evidence.”).

       The state’s modification of the photograph by adding the red, block letters with the

word “GUILTY” and superimposing it across Walter’s face clearly altered the form of

the admitted evidence. As altered, this photograph would not have been admissible

evidence. Accordingly, the use of the altered photograph was the equivalent of



5
  This exhibit was not made part of the record on appeal. However, it is uncontested that
the smaller, unaltered photograph was admitted into evidence during the state’s rebuttal.
Walter objected to the admission of his booking records, but he did not object specifically
to the admission of the photograph.
                                             8
introducing unadmitted evidence. 6 Accordingly, it was error and this Court must

determine whether this amounted to prejudicial error.

                                 Walter was prejudiced

      The trial court erred in allowing the state to use Walter’s altered photograph with

the word “GUILTY” imposed across his face, but Walter is not entitled to relief unless he

was prejudiced. Miller, 372 S.W.3d at 475. The state asserts that even if adding Walter’s

altered photograph in the closing argument slideshow were in error, there was

overwhelming evidence of his guilt. Hence, the state believes that Walter’s conviction

should stand because “overwhelming evidence of guilt may lead an appellate court to

find that a defendant was not prejudiced by trial court error.” State v. Banks, 215 S.W.3d

118, 121 (Mo. banc 2007).

      The issue of prejudice in many cases is resolved by finding a defendant was not

harmed by an improper closing argument due to the existence of overwhelming evidence

and that, accordingly, there is no prejudice. State v. Brightman, 388 S.W.3d 192, 203

(Mo. App. W.D. 2012); State v. Barton, 936 S.W.2d 781, 786 (Mo. banc 1996).

“Overwhelming evidence of guilt suggests there cannot be any reasonable doubt the

defendant committed the crime ….” State v. Duncan, 397 S.W.3d 541, 544 (Mo. App.

E.D. 2013); see also State v. Dexter, 954 S.W.2d 332, 342 (Mo. banc 1997). Trial court

6
 The state’s commentary that the slideshow depicted Walter’s photograph and then the
prosecutor merely wrote “guilty” across that image during the slideshow is specious.
When the state reduced the slideshow to printed material, it is clear there was only one
photograph of Walter’s shown. Further, the state’s comments that the prosecutor merely
wrote “guilty” on the photograph as part of his argument also rings hallow. The all
capital block lettering of the word “guilty” on Walter’s photograph clearly was part of a
pre-designed slideshow with a graphic, rather than the prosecutor modifying an image as
he was speaking to the jury.
                                              9
error will be found to be prejudicial when “there is a reasonable probability that the trial

court’s error affected the outcome of the trial.” Duncan, 397 S.W.3d at 544 (quoting

State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006), cert. denied, 549 U.S. 840, 127

S. Ct. 75, 166 L. Ed.2d 68 (2006)).

       In this case, it is clear the state made a submissible case against Walter. Yet, the

relevant inquiry is not whether a submissible case was made, but rather whether the

state’s use of Walter’s altered photograph had an effect on the jury’s deliberations to the

point that it contributed to the guilty verdict. Walter contested the state’s evidence

presented and offered his own version of events, which, if believed, would serve as the

basis for an acquittal. Looking at the entirety of the record, there was not overwhelming

evidence to support only a guilty conviction.

       In support of Walter’s defense, Martinson testified she purchased the items to

manufacture methamphetamine. Martinson further testified that her intent in purchasing

those items was to manufacture methamphetamine. Martinson stated that the

manufacturing was done without Walter’s knowledge and outside of his presence. There

was no evidence Walter knew how to make methamphetamine. While Walter did

purchase some pseudoephedrine pills, there was evidence that he suffered from chronic

sinus infections and used the pseudoephedrine pills to treat his symptoms. Further, the

presence of the syringe in the jeans at Walter’s home was not connected to either

methamphetamine use or to Walter.

       Rather than merely relying on the evidence it presented, the state chose to alter a

piece of admitted evidence and present it to the jury during closing argument. The only

                                             10
rational reason the state could have for presenting this altered photograph of Walter in his

recognizable orange prison jumpsuit was to influence the jury’s determination of his

guilt. The state argues that it did nothing improper because the photograph was

previously admitted in its unaltered state. 7

       The state’s obligation in a criminal prosecution is not to win the case but to do

justice. Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314

(1935). “It is as much [the state’s] duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every legitimate means to bring about a just

one.” Id. This Court has observed that during trial, opposing counsels may believe that

“zealous advocacy permits, if not demands, that opponents be personally derided and that

cases should be decided by appeals to prejudice, fear, envy, and bias, regardless of

whether those emotions have anything to do with the facts and law of the case.” Banks,

215 S.W.3d at 122. This mindset is antithetical to the purpose of a trial and should not be

tolerated.

       “The principle that there is a presumption of innocence in favor of the accused is

the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation

of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 15

S. Ct. 394, 403, 39 L.Ed. 481, 491 (1895). The impact a particular action may have on a

jury is difficult to fully determine, but this Court may look to “the likely effects of a


7
 While the state may argue there was no improper use of Walter’s photograph because it
was a previously admitted exhibit, the state did not label it as an exhibit in the slideshow.
Each photograph included in the slideshow, but for the altered photograph, was labeled
with an exhibit number. Walter’s altered photograph had no such exhibit number
displayed on it.
                                             11
particular procedure, based on reason, principle, and common human experience.”

Estelle v. Williams, 425 U.S. 501, 504, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126 (1976).

This Court recognizes that forcing a defendant to appear at trial in prison-issued attire

undermines the presumption of innocence and the fairness of the fact-finding process.

State v. Harris, 868 S.W.2d 203, 208 (Mo. App. W.D. 1994) and Deck v. Missouri, 544

U.S. 622, 630, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005). A defendant is not

required to appear at his or her trial wearing prison attire “because of the possible

impairment of the presumption so basic to the adversary system” Estelle, 425 U.S. at

504, 96 S. Ct. at 1693. “[T]he consequences of compelling a defendant to wear prison

clothing or of binding and gagging an accused during trial, the precise consequences …

cannot be shown from a trial transcript.” Riggins v. Nevada, 504 U.S. 127, 137, 112 S.

Ct. 1810, 1816, 118 L. Ed. 2d 479 (1992) (internal citations omitted). The Supreme

Court recognized that a defendant appearing in “such distinctive, identifiable attire may

affect a juror’s judgment.” Estelle, 425 U.S. at 504-05, 96 S. Ct. at 1693.

       While Walter was not forced to appear physically in prison attire during his trial,

the altered photograph the state presented during its closing argument compelled the

same de facto influence upon the jury. “[V]isual arguments manipulate audiences by

harnessing rapid unconscious or emotional reasoning processes and by exploiting the fact

that we do not generally question the rapid conclusions we reach based on visually

presented information.” Lucille A. Jewel, Through a Glass Darkly: Using Brain and

Visual Rhetoric to Gain A Professional Perspective on Visual Advocacy, 19 S. Cal.

Interdisc. L.J. 237, 289 (2010).

                                             12
                                         Conclusion

       In this case, the state’s use of the altered photograph of Walter impinged upon the

presumption of innocence and the fairness of the fact-finding process by juxtaposing the

photograph of Walter wearing prison attire and “GUILTY” stamped across his face with

him sitting at the defendant’s table in plain clothes. The trial court erred in failing to

grant Walter a new trial based upon the state’s use of the altered photograph during

closing argument, and Walter was prejudiced thereby. Accordingly, Walter’s convictions

for attempted manufacture of methamphetamine and maintaining a public nuisance are

vacated, and the case is remanded for a new trial.

       This Court need not address Walter’s remaining points on appeal. “Prolix claims

of trial error are presented which will not necessarily occur on retrial, and so we do not

consider them. The state may study the appellant’s brief and decide whether there are

risks as to evidence and argument which should be avoided when the case is tried again.”

State v. Wacaser, 794 S.W.2d 190, 196 (Mo. banc 1990). This Court will not issue an

advisory opinion. State v. Swiggart, 458 S.W.2d 251, 252 (Mo. 1970).

       The trial court’s judgment is vacated, and the case is remanded for a new trial.



                                                          __________________________
                                                          GEORGE W. DRAPER III, JUDGE

Breckenridge, C.J., Stith and Teitelman, JJ., concur; Wilson, J., dissents in separate
opinion filed; Russell, J., dissents in separate opinion filed; Fischer, J., concurs in opinion
of Russell, J.




                                              13
             SUPREME COURT OF MISSOURI
                                          en banc


STATE OF MISSOURI,                           )
                                             )
                        Respondent,          )
                                             )
v.                                           )       No. SC94658
                                             )
CHADWICK LELAND WALTER,                      )
                                             )
                        Appellant.           )

                                  DISSENTING OPINION

       I agree with the result reached in the dissenting opinion but write separately

because both the dissenting opinion and the principal opinion apply the wrong standard

of review. 1 This error is all too common when a criminal defendant raises a claim for the

first time in a motion for a new trial. This Court’s rules of criminal procedure are clear in

such circumstances, but the confusion results because appellate courts often misidentify

which claim was preserved for appellate review.




1
   Both the majority and dissenting opinions attempt to justify applying the wrong standard of
review in this case by noting that both parties agree “plain error” review is appropriate.
Identifying the proper standard of review is a question of law, and agreements between the
parties “cannot be invoked to bind or circumscribe a court in its determination of questions of
law.” State v. Biddle, 599 S.W.2d 182, 186 n.4 (Mo. banc 1980). See State v. Hardin, 429
S.W.3d 417, 421 n.4 (Mo. banc 2014) (state conceded defendant’s double jeopardy claim, but
this Court denied the claim after noting “parties cannot stipulate to legal issues”).
                                                 1
        Parties do not commit error, only the trial court can do so. So, if the defense

timely objects to the prosecutor’s misconduct in closing argument and the trial court

denies that objection (or sustains it but refuses to grant the relief requested), the

defendant can claim in the motion for new trial that the trial court erred in overruling the

objection or failing to grant the requested relief. If the trial court disagrees, Rule 29.11(d)

provides that the defendant has preserved this claim for appellate review. What claim?

The defendant’s claim that the trial court erred by overruling the objection (or failing to

grant the relief requested) during closing argument.

        But consider what happens when, as here, defense counsel does not raise a timely

objection during closing argument. Obviously, Walter could not move for a new trial on

the ground that the trial court erred by overruling an objection defense counsel never

made or by failing to grant relief defense counsel never requested. Therefore, the only

claim that Walter could (and did) raise in his motion for new trial is the claim that the

trial court should grant a new trial because it “plainly erred” under Rule 29.12(b) 2 when it

failed to interject itself sua sponte into the closing argument to admonish the state or

grant a mistrial on the basis of a slide that Walter concedes the trial court did not see and

to which Walter’s counsel did not object.




2
   Rule 29.12(b) is directed at trial courts, not appellate courts, and it gives trial courts discretion
to grant relief on a claim of plain error in a motion for new trial if: (a) the error affected
“substantial rights,” and (b) the court finds that a “manifest injustice or miscarriage of justice”
would occur if relief is not granted. On the other hand, Rule 30.20 applies to “plain error” in
appellate courts. It allows appellate courts to grant relief on the basis of claims that were not
briefed – or were not properly briefed – if a plain error affected the defendant’s substantial rights
and a manifest injustice or miscarriage of justice would result if relief is not granted.
                                                   2
       Rule 29.12(b) gives the trial court discretion to grant or deny such a “plain error”

claim and, if it is denied, Rule 29.11(d) provides that this claim is preserved for appellate

review. But, as above, the important question is what claim is preserved. The only claim

Walter has preserved for appellate review is the only claim he raised, i.e., that the trial

court erred by not granting a new trial after it failed to interject itself sua sponte into the

state’s closing argument and admonish the prosecution or grant a mistrial on the basis of

a slide the trial court did not see. Because Rule 29.12(b) gives the trial court discretion in

deciding such claims, an appellate court may only review Walter’s claim for an abuse of

that discretion.

       Accordingly, the proper standard of review for Walter’s claim is not the plain error

analysis available to trial courts under Rule 29.12(b) when a defendant raises a claim for

the first time in the motion for new trial. Nor is it the plain error analysis available to

appellate courts under Rule 30.20 when a defendant fails to brief (or properly brief) a

claim of error (preserved or not) that affected substantial rights and resulted in manifest

injustice or a miscarriage of justice. 3 Instead, the proper standard of review in this case –

and in any case where the defense properly briefs a claim of error that was raised for the

first time in the motion for new trial – is abuse of discretion because Rule 29.12(b) gives


3
   This case does not present the question of whether an appellate court may review for plain
error a claim that the defendant did not raise during trial or in the motion for a new trial.
Rule 84.13(c) expressly allows for such review in civil cases, see Rule 84.13(c) (plain errors may
be considered “though not raised or preserved”), but Rule 30.20 contains no such language. By
giving effect to this difference and not reviewing such claims on direct appeal even for plain
error, counsel’s failure to raise or preserve the claim can be challenged under Rule 29.15. That is
the preferable approach because, in the post-conviction context, the motion and appellate courts
will have the benefit of counsel’s explanation rather than having to guess whether the failure to
raise or preserve the error was the result of incompetence or trial strategy.
                                                3
the trial court discretion to grant or deny such claims. Here, given the overwhelming

weight of the evidence against Walter, I would hold that the trial court did not abuse this

discretion when it denied Walter relief on his plain error claim.



                                                 ______________________________
                                                 Paul C. Wilson, Judge




                                             4
             SUPREME COURT OF MISSOURI
                      en banc
STATE OF MISSOURI,                                )
                                                  )
              Respondent,                         )
                                                  )
v.                                                )      No. SC94658
                                                  )
CHADWICK LELAND                                   )
WALTER,                                           )
                                                  )
              Appellant.                          )

                                DISSENTING OPINION

       I respectfully dissent. Although I agree that the prosecutor’s use of the altered

photograph during closing arguments was likely improper, under our applicable standard

of review for plain error, such conduct amounts to reversible error only if it is established

that it had a decisive effect on the jury’s verdict and substantially affected Defendant’s

rights resulting in a manifest injustice. In light of the overwhelming evidence of

Defendant’s guilt and the trial court’s superior position from which to judge any possible

prejudice from the prosecutor’s conduct, I would hold that no such showing has been

made, and, consequently, I would affirm the decision of the trial court.
                                   Factual Background

       Because the alleged error must be considered in the context of the entire record, a

more complete discussion of the facts adduced at trial is necessary.

       The record shows that Defendant and his girlfriend went on a shopping spree

purchasing the items used in the manufacture of methamphetamine. They first went to

Walmart, where they purchased lithium batteries. Next they went to a Red Cross

pharmacy, where Defendant individually purchased pseudoephedrine pills. Once he

completed his purchase, his girlfriend separately bought pseudoephedrine pills at the

same Red Cross. They then returned to Walmart, where they purchased more

pseudoephedrine pills. After that, his girlfriend entered a different Red Cross and

purchased more pseudoephedrine pills. The couple returned once more to Walmart,

where his girlfriend bought Coleman camp fuel.

       Later that same day, an individual named Shane Nicholson was arrested after

being stopped for a traffic violation. While in custody at the Saline County Sheriff’s

Office, Nicholson received a text message that identified the sender as “Chad,” which is

an abbreviation of Defendant’s first name. Later Nicholson’s telephone rang, and he put

the telephone on speaker so that the officer could hear the conversation. The officer, who

had encountered Defendant on previous occasions, identified Defendant as the caller.

Nicholson asked the caller “if it was fire,” and Defendant replied “yeah.” In the context

of methamphetamine use, “fire” means excellent methamphetamine.

       Officers conducted a search of Defendant’s residence pursuant to a warrant in the

early morning hours the next day. When the police entered the residence, Defendant was

                                             2
in the basement. Officers found a number of items in the basement that are used in the

production and consumption of methamphetamine, including: salt, lithium batteries, two

quarts of acetone, starting fluid, Liquid Fire, a propane torch, and a metal spoon with a

powdery residue. In another part of the basement, officers also found a plastic bag

containing a white powdery substance in a bourbon container, a jug with a strong

chemical odor, and a Walmart card with white powder residue on it, which was sitting

next to a razor blade and another plastic bag also coated in white powder residue.

       The residence also contained an outdoor wood-burning stove, where officers

found burnt lithium batteries, burnt packaging for pseudoephedrine pills, a burnt acetone

container, a burnt Coleman fuel container, and burnt syringes.

       A strong chemical smell emanated from the detached garage. Officers found that

the smell was coming from the engine compartment of Defendant’s truck, which he and

his girlfriend drove to make their purchases the previous day. Under the hood of the

truck, officers found an active methamphetamine lab, including chemicals undergoing the

process of manufacturing methamphetamine and a large red mixing bowl containing

samples of methamphetamine. When shown the contents of the red mixing bowl,

Defendant voluntarily exclaimed, “this is f***ing bullshit, someone set me up, you set

me up.” All of the pseudoephedrine purchased by him and his girlfriend the previous

day, including the pseudoephedrine that he purchased individually, was found to have

been used in the attempt to make methamphetamine at his residence.

       During trial, Defendant’s mother testified that he had a history of allergies and

chronic sinus infections. His girlfriend testified that, although she had made her

                                             3
purchases with the intent to manufacture methamphetamine, Defendant did not know

about her plan, that he had purchased pseudoephedrine only because he was suffering

from a sinus infection or allergies that day, and that he did not know about or participate

in the attempt to make methamphetamine at his residence. She admitted, however, that

she had previously told her parole officer that they both purchased the pseudoephedrine

pills for the purpose of producing methamphetamine.

        The booking records from Defendant’s arrest for methamphetamine production

reflected that he did not have any medical condition that required the treatment of

pseudoephedrine pills. During his booking, he was asked whether he: (1) had a fever on

that night; (2) had a history of allergies; (3) had a history of asthma or hay fever; (4) had

recently had a cough; (5) currently had a sore throat, a cough, or a runny nose; and (6)

had a history of any other medical conditions. He responded in the negative to all of

these questions.

                                     Standard of Review

       Both parties agree that the prosecutor’s improper use of the photograph was not

preserved for appeal because Defendant failed to object during the state’s closing

argument. Consequently, his claim is reviewable, if at all, only for plain error. 1 Rule


1
  Even though Defendant apparently became aware of the photograph while the jury was
deliberating, he waited until after the jury returned its verdict to raise the issue with the
trial court. Such conduct raises the possibility that Defendant held back his objection
until he saw what the jury’s verdict would be. “To convict a trial court of an error, not
put forth by the defendant (e.g., failure to declare a mistrial sua sponte), allows an
accused to stand mute when incidents unfavorable to him or her occur during trial,
gamble on the verdict, and then seek favorable results on appeal. This puts courts in an
untenable position, and it is contrary to the principle of law that an appellate court will
                                              4
30.20. As a result of Defendant’s request for plain error review, this Court then engages

in a two-step process to determine if plain error exists. State v. Baumruk, 280 S.W.3d

600, 607 (Mo. banc 2009). First, the Court determines whether the claim of error facially

establishes substantial grounds for believing that a manifest injustice or miscarriage of

justice has resulted. Id. All prejudicial error does not constitute plain error, however. Id.

Plain error must be evident, obvious, and clear. Id. Second, if there is plain error under

the first step, the Court must determine “whether the claimed error resulted in manifest

injustice or a miscarriage of justice.” Id. at 607-08. Manifest injustice is a higher

standard than prejudice. Deck v. State, 68 S.W.3d 418, 424 (Mo. banc 2002). On plain

error review, the appellant must show that the error affected his or her rights so

substantially that a miscarriage of justice or manifest injustice will occur if the error is

left uncorrected. Id.

       Plain error relief is rarely granted for a closing argument claim because

withholding an objection to an improper argument is often a strategic decision made by

counsel. State v. Johnson, 284 S.W.3d 561, 573 (Mo. banc. 2009). This Court examines

closing arguments in the context of the entire record. State v. Anderson, 306 S.W.3d 529,

543 (Mo. banc 2010). Plain error in closing arguments is grounds for reversal of a

conviction only when it is established that the argument had a decisive effect on the

outcome of the trial and amounts to a manifest injustice. State v. Edwards, 116 S.W.3d

511, 536-37 (Mo. banc 2003). Overwhelming evidence of guilt may lead an appellate


not convict a trial court of an error not put before it to decide.” State v. White, 291
S.W.3d 354, 359 (Mo. App. 2009) (internal citations omitted).
                                               5
court to find that a defendant was not prejudiced by trial court error. State v. Davis, 318

S.W.3d 618, 642 (Mo. banc 2010). The defendant carries the burden of proving decisive

effect. Anderson, 306 S.W.3d at 543.

                                         Discussion

       Defendant fails to prove that the prosecutor’s use of the altered photograph during

closing arguments had a decisive effect on the outcome of the trial and substantially

affected Defendant’s rights resulting in a manifest injustice in light of the overwhelming

evidence of his guilt. The photograph shown by the prosecutor was not a full body shot

of Defendant in what the majority terms “a bright orange jumpsuit,” but rather depicted

him only from the shoulders up, wearing a reddish-orange, collarless V-neck top. 2 The

photograph did not signal to a layperson that the individual was clothed in prison garb.

In fact, the mugshot taken here at booking is indistinguishable from the typical mugshot,

in which the accused stands against a height chart wearing the clothes he or she had on at

the time of the arrest. Such photographs are part of the standard booking process after an

arrest and are not evidence of an accused’s guilt. Although showing a color mugshot of a

defendant with the word “GUILTY” stamped across it in bold red letters may disparage

the presumption of innocence and impair a fair trial, it does not rise to the level of the

constitutional violation found in Deck v. Missouri, 544 U.S. 622, 630 (2005). 3


2
 The altered mugshot as shown to the jury is attached to this opinion.
3
 Compare Deck, 544 U.S. at 629-31 (an accused’s due process rights are violated when
he or she is required to appear in court wearing shackles without a trial court
determination that the shackles are justified by circumstances specific to the accused’s
case), with Estelle v. Williams, 425 U.S. 501, 512-13 (1976) (absent an objection by
defense counsel, an accused’s appearance in identifiable prison garb did not establish a
                                              6
       Further, the prosecutor’s conduct here did not affect Defendant’s substantial rights

or cause a manifest injustice because the prosecutor was allowed to give his personal

opinion that, based on facts in evidence, the Defendant was guilty. State v. Moore, 428

S.W.2d 563, 565 (Mo. 1968). In this case, the prosecutor first properly offered into

evidence the mugshot unaltered, stating “that is simply not the face of someone who’s

suffering from a major sinus infection.” The prosecutor was allowed to show the

Defendant’s mugshot because it had already been admitted into evidence. State v.

Walker, 616 S.W.2d 89, 94 (Mo. App. 1981) (noting that mugshots are considered neutral

and do not indicate prior criminal activity). The prosecutor’s click of a button in the

PowerPoint slideshow that added the word “GUILTY” over Defendant’s mugshot is

simply a combination of these permitted actions.

       The State has wide latitude during closing arguments, but a prosecutor must not go

beyond the evidence presented, misrepresent the evidence or the law, or introduce

irrelevant prejudicial matters. State v. Deck, 303 S.W.3d 527, 543 (Mo. banc 2010). As

a quasi-judicial officer representing the State, a prosecuting attorney has a duty “not to

convict at any cost but to see that justice is done and that the accused receives a fair and

impartial trial.” State ex rel. Jackson Cnty. Prosecuting Attorney v. Prokes, 363 S.W.3d

71, 85 (Mo. App. 2011).




constitutional violation because there was no evidence that the state compelled him to
appear in that manner of dress), and State v. Harris, 868 S.W.2d 203, 208 (Mo. App.
1994) (no manifest injustice resulted when an accused appeared in court wearing prison
clothing because, without an objection, nothing in the record indicated that the trial court
compelled him to do so).
                                              7
       The prosecutor’s act of digitally imposing the word “GUILTY” across the

PowerPoint mugshot of Defendant was disrespectful of Defendant’s presumption of

innocence, and such conduct should not be condoned. However, it is difficult to see how

this alleged misconduct could have misled the jury. No juror, upon seeing the altered

photograph in the context of the prosecutor’s closing argument, would have believed that

the Defendant had been found guilty in a prior trial or that he had committed other

crimes. Even assuming the prosecutor’s argument was improper, under the plain error

standard of review, Defendant has the burden of proving that the state’s improper use of

the altered mugshot had a decisive effect on the outcome of the trial and affected his

rights so substantially that a manifest injustice will occur if left uncorrected. State v.

Parker, 856 S.W.2d 331, 332-33 (Mo. banc 1993). In light of the overwhelming

evidence of his guilt, Defendant has not shown that the altered photograph decisively

affected the jury’s verdict or substantially affected his rights such that a manifest injustice

resulted.

       Taken as a whole, the evidence shows that Defendant and his girlfriend went

shopping for ingredients used to make methamphetamine and that they did so in a

suspicious, piecemeal manner. These ingredients, including the pseudoephedrine that he

bought individually, were then used in an attempt to manufacture methamphetamine at

his residence later that night. During their search of the residence, officers found a

plethora of materials used in the making of methamphetamine as well as an active

methamphetamine lab set up under the hood of Defendant’s truck, which he had been

driving mere hours before. When confronted with the red mixing bowl taken from his

                                               8
garage, Defendant responded immediately and defensively that he had been “set up,”

which indicates that he knew the bowl contained methamphetamine.

       During booking procedures later that night, Defendant stated that he was not

suffering from fever, allergies, asthma, hay fever, sore throat, cough, or runny nose. This

directly contradicts his girlfriend’s trial testimony that, while she intended to make

methamphetamine with her purchases, Defendant was unaware of that intent and bought

his pseudoephedrine only for the legitimate purpose of treating allergies or a sinus

infection. Also diminishing the credibility of her testimony is the fact that he was present

with her during many of her purchases, and that she told her parole officer that they both

purchased pseudoephedrine with the intent to make methamphetamine.

       The State’s evidence did not have to go uncontested to amount to overwhelming

evidence of guilt. Defense counsel’s contentions that Defendant had no knowledge of,

and did not participate in, the attempt to make methamphetamine at his own residence

with ingredients he himself purchased one day prior, was simply incredible, and

obviously not believed by the jury. 4 When the evidence of guilt was overwhelming, there

is certainly no way to conclude that, without the alleged misconduct, the outcome of the

trial would have been, or even reasonably might have been, different. There is no

rational reason why the jury would have let this alleged misconduct affect its decision,

especially in light of the overwhelming evidence against Defendant. The altered mugshot

could not have had a decisive effect on the outcome of this case and did not substantially

4
 Evidence is reviewed in the light most favorable to the verdict. State v. Taylor, 298
S.W.3d 482, 491 (Mo. banc 2009).

                                              9
affect Defendant’s rights resulting in a manifest injustice. While I recognize the

importance of reminding state actors of their duty to see that the accused receives a fair

and impartial trial, this Court should remand for a new trial only when necessary to

correct a manifest injustice to the Defendant, and not to teach a lesson to the state. I find

no such injustice here. Our dockets are too crowded, and the jurors’ time is too valuable,

to be used so cavalierly by this Court.

         I would affirm the decision of the trial court. 5



                                                     Mary R. Russell, Judge




5
    I would affirm all other points raised by Defendant on appeal.
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