Section 24.20 Appellate Review

• Library: Criminal Practice 2012 Supp

VI. (§24.20) Appellate Review

“The giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes On Use shall constitute error, the error’s prejudicial effect to be judicially determined.” Rule 28.02(f). To preserve instructional error for appellate review, a party must object to the instruction before its submission to the jury, specifying the ground for the objection, and raise the issue in a timely filed motion for new trial. Rule 28.03. When a party wants the jury instructed on a specific matter, it is necessary to tender an instruction in proper form if required to do so under the Notes on Use.

A technical rule of appellate procedure was enforced in State v. Tatum, 807 S.W.2d 126 (Mo. App. S.D. 1991), in which the court held that instructional error was not preserved for appellate review when the challenged instruction was not set out in full in the argument portion of the brief. It is not sufficient to include the instruction in the legal file on appeal.

The harmless error doctrine of Chapman v. California, 386 U.S. 18 (1967), applies to instructional error, even if it involves a violation of constitutional rights. Rose v. Clark, 478 U.S. 570 (1986). When reviewed
for error the instructions are considered as a whole. State v. Holt, 592 S.W.2d 759 (Mo. banc 1980). The court finds prejudicial error when
the jury may have been adversely influenced by an erroneous instruction or by the lack of an instruction required by the law. State v. Rodgers, 641 S.W.2d 83 (Mo. banc 1982). When MAI-CR 3d is not followed, the appellate court will reverse the conviction if “the object and purpose of the omitted instruction is not otherwise fulfilled.” State v. Nunn, 646 S.W.2d 55, 59 (Mo. banc 1983); State v. Cook, 727 S.W.2d 413 (Mo. App. W.D. 1987).

The application of the harmless error doctrine to instructional error was clarified in Yates v. Evatt, 500 U.S. 391 (1991). Yates v. Aiken, 484 U.S. 896 (1985), was remanded to the South Carolina Supreme Court for reconsideration in light of Francis v. Franklin, 471 U.S. 307 (1985), based on an instruction that “malice is implied or presumed from the use of a deadly weapon.” The South Carolina Supreme Court found that the error was harmless because, under the evidence, the jury could have found Yates guilty of murder in spite of the erroneous instruction. The United States Supreme Court found that this was an erroneous application of the harmless error rule, which requires the appellate court to determine whether the error was harmless “beyond a reasonable doubt.” The Supreme Court then conducted its own harmless error analysis, found that the error was not harmless, and remanded the case for further proceedings.

The Supreme Court of Missouri, relying on Walton v. Arizona, 497 U.S. 639 (1990), fashioned a unique standard of appellate review of erroneous instructions that seems to apply only to the sentencing phase of capital trials. In State v. Feltrop, 803 S.W.2d 1 (Mo. banc 1991), the Court acknowledged that a penalty phase instruction was facially vague in violation of the Eighth Amendment to the United...