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State v. Altaffer6/29/2000
es no definition be given in a situation such as Defendant=s case.
If an applicable MAI-CR instruction exists and using it comports with the substantive law, failure to comply with such instruction and the applicable Notes on Use is presumed prejudicial. State v. Roe, 6 S.W.3d 411, 415 (Mo.App. 1999). "'Whenever there is an MAI-CR instruction applicable under the law . . . , the MAI-CR instruction is to be given to the exclusion of any other instruction.'" State v. Ervin, 979 S.W.2d 149, 158 (Mo.banc 1998) (citation omitted) cert. denied, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1998). Here, Defendant has not shown that instruction 5 changed the substantive law; consequently, the trial court did not err in giving instruction 5 and rejecting Defendant's instruction "A." Point denied.
Point II: Plain Error in Closing Argument
Because the alleged error by the prosecutor in closing argument was not subject to contemporaneous objection and was not raised in Defendant's motion for new trial, it can be examined only under the plain error standard of Rule 30.20. State v. Bogard, 836 S.W.2d 87, 88 (Mo.App. 1992) (citing State v. Roberts, 709 S.W.2d 857, 864 (Mo. banc 1986).
Defendant requests plain error review by this court, arguing that the trial court's failure to declare a mistrial, sua sponte, following certain comments by the prosecutor in his closing argument, resulted in a manifest injustice. Specifically, Defendant complains about the prosecutor's reference to the two syringes found in Defendant's bag as "the means by which someone would ingest a controlled substance like methamphetamine." Defendant claims this is error because there was no evidence presented to the jury regarding how methamphetamine is taken into the body. Further, Defendant states since the method by which methamphetamine is used is not common knowledge, then the prosecutor cannot conclude in his closing argument the syringes were a "link" between Defendant and the methamphetamine.
Missouri appellate courts "rarely grant relief on assertions of plain error as to closing argument . . . because, 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. Clemmons, 753 S.W.2d 901, 907-08 (Mo. banc 1988). See also Bogard, 836 S.W.2d at 89. "Because trial strategy looms as an important consideration in any trial, assertions of plain error concerning matters contained in closing argument are generally denied without explication." Id. See State v. Amrine, 741 S.W.2d 665, 669 (Mo. banc 1987); State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986). In State v. McMillin, 783 S.W.2d 82 (Mo. banc 1990), our supreme court refused review of closing arguments stating, "'The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.'" 783 S.W.2d at 98 (citations omitted).
Adhering to the foregoing, we expressly refuse to review Defendant's complaints about the prosecutor's closing argument. Defendant waived his claim of error by failure to preserve error. Bogard, 836 S.W.2d at 89. Perhaps Defendant's lawyer "considered the remarks inconsequential not warranting objection, or as trial strategy [counsel] set the stage for built in error." See Wood, 719 S.W.2d at 760. Whatever the reason, we decline to exercise our discretion to review under the plain error rule.
Judgment affirmed.
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