Section 29.16 Review Under the Plain Error Rule

• Library: Criminal Practice 2012 Supp

B. (§29.16) Review Under the Plain Error Rule

The “plain error rule,” which refers to Rules 29.12(b) and 30.20 together, is the single greatest tool that an appellate attorney has to overcome an improper or insufficient record before the trial court. An appellant who can show that the error complained of resulted in a “manifest injustice or miscarriage of justice” may properly have the point considered by the appellate court, although not raised or preserved for review or defectively raised or preserved.

Courts have made clear that the plain error rule should be used sparingly and that it does not justify a review of every trial error that has not been properly preserved for appellate review. See:

· State v. Knese, 985 S.W.2d 759, 770 (Mo. banc 1999)

· State v. Bolds, 11 S.W.3d 633, 638 (Mo. App. E.D. 1999)

· State v. Evans, 992 S.W.2d 275, 286 (Mo. App. S.D. 1999)

· State v. Hudson, 950 S.W.2d 543, 547 (Mo. App. W.D. 1997)

Under Rule 30.20, the appellate court will consider any allegation of error concerning the sufficiency of the information or indictment, verdict, judgment, or sentence, regardless of whether it was raised in the
trial court or even properly preserved for review at the appellate level. Rules 29.12(b) and 30.20 both require a sound, substantial manifestation and a strong, clear showing that injustice or a miscarriage of justice will result. See:

· State v. Wendell, 542 S.W.2d 339 (Mo. App. S.D. 1976)

· State v. Smothers, 518 S.W.2d 187 (Mo. App. W.D. 1974)

· State v. Howard, 540 S.W.2d 86 (Mo. banc 1976)

The appellate court is more likely to invoke the plain error rule when there is a close evidentiary question or when the guilt of the defendant may be in doubt. State v. Stockbridge, 549 S.W.2d 648 (Mo. App. W.D. 1977); State v. Potter, 530 S.W.2d 268 (Mo. App. S.D. 1975). When guilt has been established by overwhelming evidence, it is extremely difficult to convince the appellate court that an injustice or miscarriage of justice has been committed. Wendell, 542 S.W.2d 339; State v. Hurtt, 509 S.W.2d 14 (Mo. 1974).

Cases in which the rule has been successfully argued include the following:

· Ineffective counsel was found when the court-appointed lawyer withdrew without having filed a motion for a new trial and subsequent counsel was not appointed until after the time had expired. Nicholson v. State, 524 S.W.2d 106 (Mo. banc 1975).

· The sufficiency of evidence can always be challenged under
the plain error rule. Potter, 530 S.W.2d 268...