Opinion handed down January 26, 2016
After shopping at multiple locations for items that could be used in making methamphetamine, Chadwick Leland Walter was arrested and charged with attempted manufacture of a controlled substance.[1] In the closing argument of Walter's trial, the prosecuting attorney included in a slideshow, shown to the jury, a picture of Walter wearing orange with the word “GUILTY” placed over Walter's face in large red lettering.[2] Walter appealed the trial court's denial of his motion for a new trial on the basis that the use of this altered photograph prevented a fair trial.[3] On appeal, the Supreme Court of Missouri, finding prejudicial error, vacated the trial court's judgment and remanded for a new trial.[4]
I. Facts and Holding
Chadwick Leland Walter (“Walter”) and Kathy Martinson (“Martinson”), his girlfriend, went to multiple locations to purchase items that could be used to make methamphetamine.[5] Police received a warrant to search Walter's home and discovered a methamphetamine lab.[6] Walter was charged with maintaining a public nuisance and one count of attempted manufacture of a controlled substance.[7] At trial, the prosecutor used a slideshow presentation as part of the prosecution's closing argument: the last photograph of the slideshow was an image of Walter, wearing orange, and had a large, red word, “GUILTY,” placed over his face.[8] No record was made regarding whether the judge or defense counsel ever viewed the last photograph of the slideshow, and defense counsel stated that he failed to object at the time the image was shown because he did not see it when it was presented to the jury.[9] After becoming aware of the photograph during jury deliberations, defense counsel waited until after the jury returned with a guilty verdict before objecting to the photograph as “improper and prejudicial” and ultimately moved for a new trial.[10]
The trial court overruled this motion and imposed a sentence, and Walter appealed, arguing, inter alia, that it was reversible error for the trial court to refuse to grant a new trial due to the prosecutor's use of the altered photograph.[11] The Missouri Court of Appeals for the Western District, in an opinion authored by Judge Gary D. Witt, rejected Walter’s argument that the use of the altered photograph inflamed the jury and deprived Walter of a fair trial and due process.[12] The case was transferred to the Supreme Court of Missouri, which in a non-unanimous opinion vacated the trial court's judgment and remanded for a new trial.[13] The court held that a trial court prejudicially errs where it fails to grant a new trial to a criminal defendant after the presumption of innocence and fairness of the trial have been negatively affected by the improper use of an altered photograph putting the defendant in a negative light and where there was not overwhelming evidence supporting only a guilty conviction.[14] Two opinions dissented were made, one focusing on the standard of review and the other challenging whether the altered photograph in fact had a decisive effect sufficient to warrant a new trial.[15]
II. Legal Background
Alleged errors that are not properly briefed are within the discretion of an appellate court to consider if they constitute “plain errors affecting substantial rights” and result in “manifest injustice or miscarriage of justice.”[16] Where a party neglects to object to the admission of evidence, due to negligence or inadvertence, plain error review may be used on appeal.[17] Plain error occurs where the trial court's error “facially establish[es] substantial grounds for believing a manifest injustice or miscarriage of justice has occurred.”[18] The less difficult standard of abuse of discretion is satisfied when “a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.”[19]
Plain error in closing argument will only lead to reversal when the closing argument “had a decisive effect on the outcome of the trial and amounts to manifest injustice.”[20] The burden of showing this effect is on the defendant, and plain error review of error in closing arguments is disfavored.[21] The rationale for this very stringent standard for plain error in closing argument relates to the idea that, unless the objector requests relief by objecting during the closing argument, the trial judge would be in the difficult position of causing an “uninvited interference with the summation” which intervention may itself result in further error.[22] Further, a defendant may be withholding an objection strategically.[23]
Missouri courts have held that for a trial court to compel a prisoner to wear prison attire while appearing in court is detrimental to the fairness of trial and the presumption of innocence and is error.[24] In like manner, it is erroneous for a trial court to admit photographs that have the sole goal of prejudicing the defendant and arousing the jury's emotions.[25] Trial courts have discretion on the admission of photographs, even photographs that are likely to be found gruesome, but under the test of legal relevance, the prejudicial effect of photographs can exceed their probative value.[26]
III. Instant Decision
In the majority opinion, written by Judge George W. Draper, III, the court embarked on a lengthy discussion of the standard of review, collecting an edifying amount of cases on the topic of failure to preserve error in a closing argument, and plain error review in the context of a closing argument.[27] The majority was satisfied that the matter at hand, the impropriety of the use of the altered photograph in the prosecution's closing argument, should be reviewed for plain error, and not for abuse of discretion because the objection to the altered photograph was not preserved for appeal.[28] In addressing whether it was improper for the prosecution to use the altered photograph, the court began by expressing the limitations of closing arguments: they may not go beyond the evidence, and courts ought to “exclude statements that . . . introduce irrelevant prejudicial matters, or otherwise tend to confused the jury.”[29]
The majority rejected the State's argument that the altered photograph had already been admitted into evidence because the unaltered photograph had itself already been admitted into evidence, and it merely altered the photograph by making an inference in the closing argument, which it claimed to be permissible.[30] The majority instead said that the altered form of the photograph would not have been admissible; therefore, it was equal to the erroneous introduction of unadmitted evidence.[31] Turning to the question of whether Walter was prejudiced, the majority was not moved by the State's argument that the defendant was not harmed because overwhelming evidence of his guilt obviated the harm of the error.[32] Instead, the majority emphasized that evidence of Walter's purported chronic sinus infections could explain his purchase of one of the materials used to make methamphetamine, and that Martinson had given testimony tending to exculpate Walter.[33]
Finally, expounding on the prejudice incurred by the use of the altered photograph, the majority cited sources regarding the duty of the criminal prosecutor to do justice and not use improper methods in prosecuting the defendant.[34] The majority analogized to the rule that it is error to force a criminal defendant to wear prison clothing at trial to support the conclusion that the altered photograph would affect the jury, infringing on the fairness of the trial and the presumption of innocence.[35] Because the photo of the defendant, described as wearing prison attire with the word 'guilty' placed across his face, was prejudicial, the majority vacated the convictions and remanded the case.[36]
In a dissenting opinion authored by Judge Paul C. Wilson, Judge Wilson focused on the standard of review, reasoning that the only claim preserved for review was the trial court's failure to grant a new trial on the basis of the trial court's failure “to interject itself sua sponte into the State's closing argument and admonish the prosecution or grant a mistrial . . . .”[37] Therefore, Judge Wilson determined, the standard of review was review for abuse of discretion, not plain error review.[38] Under this more deferential standard, Judge Wilson would have found that the evidence of Walter's guilt was overwhelming and that the trial court did not abuse its discretion.[39]
In an additional dissenting opinion by Judge Mary R. Russell, Judge Russell reviewed the factual background extensively, applying the plain error standard of review and asserting that the use of the altered photograph in closing argument would only serve as reversible error when the effect on the jury's verdict was “decisive.”[40] Russell mentioned, among other evidence, that Walter had denied that he had a cough, sore throat, or other cough-like symptoms at that time and that he said he had been “set up” when the police discovered the methamphetamine.[41] Judge Russell agreed that the act of placing the word “Guilty” across the face of the defendant in a PowerPoint was not in keeping with respect for the presumption of innocence, but found that it did not have a decisive effect on the trial's outcome.[42] Further finding that the evidence of Walter's guilt was overwhelming, Judge Russell would have affirmed the decision of the trial court.[43]
IV. Comment
This case presents a good lesson to prosecuting attorneys about what activity in a closing argument will be disfavored on appeal. Both the majority and one of the dissenting opinions agree that the prosecutor's conduct was at least not in keeping with respect for the presumption of innocence that should have been given to the defendant. The danger of a prosecutor's closing argument falling beyond the evidence is particularly felt in the realm of visual arguments, which, as discussed by the secondary source cited by the majority, often rely more on emotion than logic.[44] One is tempted to ask the Western District in this case “why even an overzealous prosecutor would tempt the grant of mistrial . . . where the evidence of guilt is this overwhelming[?]”[45]
Judge Russell's critique is well taken that the state court dockets are crowded and the juror's time should not be undervalued.[46] But it is encouraging to view this case as evidence that the Supreme Court of Missouri is concerned enough with the fairness of trial and the presumption of innocence that it would rather expend limited judicial resources than let these important principles be disparaged.
– Rich Byrd
[1] State v. Walter, 479 S.W.3d 118, 121 (Mo. 2016) (en banc).
[19] State v. Benedict, 319 S.W.3d 483, 487 (Mo. Ct. App. 2010) (internal quotation omitted) (further stating that no abuse of discretion is found when reasonable minds could differ over whether a ruling was appropriate).
[26] Cf. State v. Floyd, 360 S.W.2d 630, 633 (Mo. 1962) (referencing the balancing test but not using the phrase “legal relevance”).
[44] See Lucille A. Jewel, Through A Glass Darkly : Using Brain Science and Visual Rhetoric to Gain A Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 291-92 (2010).
