State v. Emanuel

683 S.W.3d 348

STATE of Missouri, Plaintiff-Respondent,

v.Napoleon EMANUEL, Defendant-Appellant.

No. SD 37611

Missouri Court of Appeals, Southern District, In Division.

Filed: February 1, 2024

APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY, The Honorable S. Rob Barker, Judge

Attorney for Appellant - Ellen H. Flottman, Craig A. Johnston of Columbia, MO.

Attorneys for Respondent - Andrew Bailey (Attorney General), Ashley Murphy of Jefferson City, MO.

JENNIFER R. GROWCOCK, J.

Napoleon Emanuel appeals a Mississippi County Circuit Court ("trial court") judgment convicting him of the class A felony of unlawful distribution of a controlled substance in a protected location, specifically within 2,000 feet of a public elementary school in violation of section 579.030, following a jury trial.¹ Emanuel claims four points of trial court error on appeal: (1) the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence that he committed the alleged drug sale knowing he was within 2,000 feet of a public elementary school; (2) the trial court plainly erred by failing to instruct the jury its verdict must be unanimous in accordance with Instruction 402.05, a required jury instruction; (3) the trial court plainly erred by failing to sua sponte issue a curative instruction or declare a mistrial after the State’s improper personalized statements during closing argument; and (4) the trial court plainly erred by failing to sua sponte issue a curative instruction or declare a mistrial after the State’s improper future dangerous argument during closing argument.² Finding merit in his instructional claim alleged in Point II, and because this point is dispositive, we do not reach the other allegations of error. We reverse and remand this case to the trial court for a new trial.

Factual Background and Procedural History

On March 2, 2018, Sergeant Travis Templemire ("Templemire"), who was assigned to the Southeast Missouri Drug Task Force, was working an undercover narcotics investigation in Charleston, Missouri. Templemire drove a confidential informant to Family Dollar, a store located in Charleston, to buy methamphetamine from a person who was going to meet the informant there. The store was around 1,400 feet from Charleston Middle School. The informant told Templemire they would be purchasing the drugs from "Junebug," who was later identified as Emanuel. When they pulled into the parking lot, Templemire saw Emanuel. Emanuel approached the vehicle and handed the informant a clear plastic baggie containing a chunky, crystal substance in exchange for $40.00. A Missouri State Highway Patrol Crime Laboratory analysis concluded the crystalline substance contained methamphetamine.

The State tried its case to a jury on April 28, 2022. In every criminal trial, the trial court must read certain patterned jury instructions from MAI-CR 4th to the jury once it is sworn, throughout the trial, and before closing arguments. One such instruction is Instruction 402.05, which instructs the jurors on the selection of a foreperson, how they may weigh the believability and credibility of witness testimony, and explains the requirement that their ultimate verdict must be unanimous.

Before opening statements, the trial court read the following instructions to the jury: Instruction 402.01 regarding Duties of the Judge and Jury and Instruction 402.02 relating to Evidence and Rulings of the Court. The trial court did not discuss Instruction 402.05 at this time. During voir dire, neither the State nor Emanuel’s trial counsel informed the jury of the unanimous jury requirement contained in Instruction 402.05, and neither party mentioned a unanimity requirement in their opening statements or at any time throughout the trial.

After the State presented its evidence and rested, the trial court held its instruction conference. The trial court stated, "Earlier we talked about Instructions 3, 4, and 5. So I’ve got 402.03 as No. 3. 402.04 as No. 4. 402.06 as No. 5." Emanuel's trial counsel asked the trial court to read Instructions 425.30, 408.14, and 425.02 to the jury as Instruction Nos. 6, 7, and 8, respectively. After additional discussion off the record, the trial court announced, "[w]e’ve compiled clean instructions … 1 through 8." Neither the State nor Emanuel offered Instruction 402.05 or made an objection to the trial court’s failure to read Instruction 402.05 to the jury when the trial court asked if either party had any objections to the jury instructions as read. Emanuel then waived his right to testify, the jury was called back into the courtroom, and Emanuel rested his case without presenting any evidence.

The trial court subsequently read Instructions 3 through 8 to the jury. At no point during its reading did the trial court recite Instruction 402.05 to the jury. No instruction read to the jury at any time during the trial included a direction to the jurors that their verdict must be unanimous. The parties made their closing arguments, and the case was submitted to the jury. Neither closing argument informed the jury its verdict must be unanimous. The verdict form did not inform the jury of the unanimity requirement, and it only required one signature, that of the jury foreman.

Following deliberations, the jury returned the completed verdict form to the trial court. The trial court read the verdict aloud: "We, the jury, find the defendant, [Emanuel], guilty of distribution of a controlled substance in a protected location, as submitted in Instruction No. 7." Neither the State nor Emanuel requested a poll of the jury regarding its verdict when the trial court asked Emanuel if he would like the jury to be polled. The trial court did not poll the jury sua sponte.

Standard of Review

[1] Emanuel requests plain error review because he concedes he did not object to the jury instructions, as read, at trial, and he raises this claim of error for the first time on appeal. Rule 28.02(f) states that failure to use a proper instruction shall constitute error, "provided that objection has been timely made pursuant to Rule 28.03."³ Rule 28.03 requires counsel to "make specific objections to instructions or verdict forms considered erroneous" and warns, "No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict[.]" Rule 28.03. However, Rule 30.20 affords us the opportunity to consider plain errors affecting substantial rights for unpreserved claims, including unpreserved instructional errors. State v. Robinson, 484 S.W.3d 862, 869 (Mo. App. E.D. 2016) (holding Rule 30.20 allows for plain error review of unpreserved claims of instructional error notwithstanding Rule 28.03).

[2–10] Our standard of review for plain error is set forth in State v. Brandolese:

Generally, this Court does not review unpreserved claims of error. State v. Cella, 32 S.W.3d 114, 117 (Mo. banc 2000). Rule 30.20 alters the general rule by giving appellate courts discretion to review "plain errors affecting substantial rights may be considered in the discretion of the court … when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. "Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error ‘facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has re-sulted.’ " State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017) (quoting State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995), and Rule 30.20). "The plain language of Rule 30.20 demonstrates that not every allegation of plain error is entitled to review." State v. Nathan, 404 S.W.3d 253, 269 (Mo. banc 2013). "The plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review." State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014). Unless manifest injustice or a miscarriage of justice is shown, an appellate court should "decline to review for plain error under Rule 30.20." Id. at 196. Finally, "the defendant bears the burden of demonstrating manifest injustice entitling him to" plain error review. State v. Oates, 540 S.W.3d 858, 863 (Mo. banc 2018) (quoting State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)).

601 S.W.3d 519, 525-26 (Mo. bane 2020). We also note:

A plain-error claim "places a much greater burden on a defendant than an assertion of prejudicial error." State v. Ralston, 400 S.W.3d 511, 520 (Mo. App. 2013). A defendant must show not only that the trial court committed evident, obvious, and clear error, but also the existence of manifest injustice or a miscarriage of justice. State v. Mueller, 568 S.W.3d 62, 75 (Mo. App. 2019). To prove plain instructional error, the defendant "must demonstrate the trial court so misdirected or failed to instruct the jury that the error affected the jury’s verdict. " [State v.] Celis-Garcia, 344 S.W.3d [150,] 154 [(Mo. banc 2011)] (citations and internal quotation marks omitted). Even clear and obvious instructional error rarely works of manifest injustice or miscarriage of justice demanding plain-error reversal. State v. Parsons, 339 S.W.3d 543, 549 (Mo. App. 2011). The outcome of plain-error review depends heavily on the facts and circumstances of each case. Ralston, 400 S.W.3d at 520.

State v. Stuckley, 573 S.W.3d 766, 768 (Mo. App. S.D. 2019) (emphasis added).

Analysis

[11–13] The constitution of this state provides "[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate[.]" Mo. Const. art. I, § 22(a). This constitutional provision guarantees a fundamental right that an accused shall enjoy a trial by twelve people that unanimously concur in the guilt of the defendant before he or she can be legally convicted.

State v. Goucher, 111 S.W.3d...