State v. Foster

674 S.W.3d 119

STATE of Missouri, Respondent,

v.Marcell FOSTER, Appellant.

No. ED 110489

Missouri Court of Appeals, Eastern District, DIVISION FIVE.

FILED: June 20, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied July 24, 2023

Application for Transfer to Supreme Court Denied September 26, 2023

For Appellant: Samuel E. Buffaloe, 1000 W. Nifong Blvd., Bldg. 7, Ste. 100, Columbia, MO 65203.

For Respondent: Ashley D. Murphy, P.O. Box 899, Jefferson City, MO 65102.

KURT S. ODENWALD, Judge

Introduction

Marcell Foster ("Foster") appeals from the trial court's judgment following a jury conviction on murder in the first degree and armed criminal action. Foster raises two points on appeal, alleging the trial court plainly erred in sua sponte failing to intervene during the State's closing argument. Specifically, Point One argues the State made an improper acquittal-first argument. Point Two contends the State's reference to the Bible implied the jury should disregard the jury instructions. Because the State's closing argument did not improperly require the jury to unanimously acquit Foster of first-degree murder before considering the lesser-included offenses, the State did not present an acquittal-first argument, and we deny Point One. Because the single, isolated reference to the Bible's teachings within the context of an otherwise permissible argument did not rise to the level of manifest injustice, we deny Point Two. Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

On December 26, 2020, Foster was involved in an altercation between multiple people in the parking lot of a bar in St. Charles. The shooting incident was captured on surveillance video. Foster fired several shots at Victim and continued shooting after Victim fell. Victim did not display or possess a weapon and had been moving away from Foster at the time he was shot. The police arrived and arrested Foster. The State charged Foster with first-degree murder and armed criminal action arising out of the shooting death of Victim.

The case proceeded to a jury trial. Foster testified that he shot Victim in self-defense or in defense of another. The trial court instructed the jury on first-degree murder and the lesser-included offenses of second-degree murder and voluntary manslaughter (Instructions Nos. 9, 10, and 11, respectively). Instruction No. 10 stated that "[a]s to Count 1, if you do not find the defendant guilty of murder in the first degree, you must consider whether he is guilty of murder in the second degree." Instruction No. 11 likewise stated, "[a]s to Count 1, if you do not find the defendant guilty of murder in the second degree, you must consider whether he is guilty of voluntary manslaughter." The trial court also instructed the jury on self-defense and defense of others.

During closing argument, the State argued that it satisfied its burden to prove every element of first-degree murder. After outlining the evidence supporting each element, the State said:

Now if we've met our elements here, and I submit to you this is—again, this one is a no-brainer, ladies and gentlemen. Game over. We're done. You do not even consider Instruction No. 10. You don't even get to No. 10. I told you the other day you start at Murder 1. Now, in due diligence, I'm going to explain No. 10 to you.

The State then walked the jury through the instructions on the lesser-included offenses. The State explained that "[i]f you do not find him guilty of murder in the first degree, you'll consider murder in the second degree." Regarding voluntary manslaughter, the State continued:

Anyway, again, you don't even get to that unless you've eliminated Murder in the First Degree.

...

Here's our voluntary manslaughter. You have not found—you have not found him guilty of Murder First Degree or Murder Second Degree, so now you're really getting down into the weeds here. Caused the death. Some of the elements are similar. No self-defense. Here's what I want to harp, though. You don't even get to this unless you've eliminated Murder First Degree and Murder Second Degree. That's the point. Of course, we have these elements. Of course, we have all of these elements that are satisfied, but my point is you don't even get that far down the elevator. That's in the basement here.

You don't get to the basement, this charge, unless you've eliminated Murder First Degree [and] Murder Second Degree. Okay?

(Emphasis added).

Also during closing argument, the State explained that serious physical injury was something "that potentially could kill you, not a firstfight where people are knocking each other down." The State argued the evidence showed Victim did not possess or display a weapon. The State said: "Think of the alternative. Anytime two people get in a fight, wrestling, whatever, altercation, anyone can just go up and start blasting away. That's absurd." Towards the end of closing argument, the State said:

Keep in mind [Victim] is moving away from his shooter. He's moving away from his murderer. He's moving away from his killer. Not once does [Victim] have any aggressive action toward the Defendant. Not one time. The fight is over by the way. Fight is over. The two bouncers, you see in the video, break it up. We heard from one [bouncer]. Broke it up. Fight is over. We have fights all the time. People don't pull guns and start blasting. Absolutely not. Fight's over. Situation is over. Some trash talking. Big deal. We learned years ago the Bible teaches us you just can't start blasting away over chatter. Can't do it.

(Emphasis added).

The jury found Foster guilty of first-degree murder and armed criminal action as charged. The trial court sentenced Foster to consecutive prison terms of life without parole on first-degree murder and fifteen years on armed criminal action. Foster moved for a new trial on different grounds than those raised now on appeal, and the trial court denied the motion.

Points on Appeal

Foster raises two points on appeal. Point One claims the trial court plainly erred in sua sponte failing to correct the State's closing argument that the jury must "eliminate" the first-degree murder offense before considering the lesser-included offenses because that phrase constituted an improper acquittal-first argument. Point Two contends the trial court plainly erred in sua sponte failing to correct the State's closing argument that "the Bible teaches us you just can't start blasting away over chatter" because it directly or indirectly asked the jury to disregard the jury instructions.

Standard of Review

Foster did not object to the State's closing argument nor raise his claims regarding closing argument in his motion for new trial. "Only an objection made timely at trial will preserve an issue for appeal." State v. Minor, 648 S.W.3d 721, 729 (Mo. banc 2022) (internal citation omitted). Foster requests we exercise discretionary plain-error review. "Rule 30.20¹ is the exclusive means by which an appellant can seek review of any unpreserved claim of error[.]" Id. at 731 (quoting State v. Brandolese, 601 S.W.3d 519, 530 (Mo. banc 2020) ).

We conduct plain-error review in two steps. First, we determine "whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." Id. (quoting Grado v. State, 559 S.W.3d 888, 899 (Mo. banc 2018) ). "All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear." Id. (quoting Grado, 559 S.W.3d at 899 ). Second, if we find plain error, we must determine "whether the claimed error resulted in manifest injustice or a miscarriage of justice." Id. (quoting Grado, 559 S.W.3d at 900 ). "To obtain a new trial on direct appeal based on a claim of plain error, the appellant must show ‘the error was outcome determinative.’ " State v. Johnson, 599 S.W.3d 222, 226 (Mo. App. W.D. 2020) (quoting State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019) ).

Discussion

I. Reviewing Claims of Plain Error in Closing Argument

Foster acknowledges that unpreserved errors in closing argument rarely rise to the level of reversible plain error. See id. at 227 (quoting Wood, 580 S.W.3d at 579 ). "It has long been held that ‘[p]lain error relief as to closing argument should rarely be granted and is generally denied without explanation.’ " State v. Hall, 319 S.W.3d 519, 523 (Mo. App. S.D. 2010) (internal quotation omitted). "Courts especially hesitate to find plain error in the context of closing argument because the decision to object is often a matter of trial strategy, and in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention." State v. Reese, 632 S.W.3d 365, 378 (Mo. App. W.D. 2021) (quoting State v. Edwards, 116 S.W.3d 511, 536 (Mo. banc 2003) ). Even if the State's argument is deemed improper, "reversal is warranted only if the defendant shows the improper argument ‘had a decisive effect on the jury's determination.’ " Johnson, 599 S.W.3d at 227 (quoting Wood, 580 S.W.3d at 579 ); Reese, 632 S.W.3d at 378 (quoting Edwards, 116 S.W.3d at 536–37 ).

A. Point I: The State Did Not Make an Improper Acquittal-First Argument

An acquittal-first argument is a misstatement of the law. Johnson, 599 S.W.3d at 226 (quoting Tisius v. State, 183 S.W.3d 207, 217 (Mo. banc 2006) ). "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." Id. (quoting Tisius, 183 S.W.3d at 217 ). Rather, the Missouri Approved Instructions–Criminal ("MAI-CR") provide that a jury may consider lesser-included offenses if it does not find the defendant guilty of the greater offense. Id. (citing MAI-CR 3d 313.04). The State "must avoid using terms or phrases that plainly fall into the category of...