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State v. Beck7/26/2005
bly believed were acting in concert with ] and the defendant used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self-defense.
The bracketed language: "[ and those whom the defendant reasonably believed were acting in concert with ]" is the language the appellant is contending should have been added, sua sponte, by the trial court to Instruction No. 11 and was not.
The State contends in its brief that: (1) the appellant waived plain error review of his claimed instructional error as to Instruction No. 11 because he proffered it; and, (2) in the alternative, even if he did not waive plain error review, there was no error, plain or otherwise, in the trial court's failure to modify, sua sponte, Instruction No. 11, because it was patterned after the mandatory self-defense instruction, MAI-CR 3d 306.06, and that it correctly stated the law of self-defense in cases involving multiple assailants. We disagree.
A. No Waiver of Plain Error Review
Rule 28.03 requires counsel to make specific objections to an instruction considered erroneous. If a party fails to object to an instruction, prior to the jury's retiring to consider its verdict, that party may not assign as error on appeal the giving or failure to give that instruction. Id. While Rule 28.03 makes it clear that a party's failure to object at trial to an instruction preserves nothing for review as to the giving or the failure to give that instruction, State v. Hopkins,947 S.W.2d 826, 829 (Mo. App. 1997),the Missouri Supreme Court, in State v. Wurtzberger, 40 S.W.3d 893 (Mo. banc 2001), held that the failure to object does not waive plain error review, pursuant to Rule 30.20.
In Wurtzberger, the defendant was convicted of attempting to manufacture a controlled substance, methamphetamine, section 195.211.1. 40 S.W.3d at 894. He claimed, inter alia, on appeal that the trial court had plainly erred in giving the State's verdict director, instructing the jury on that offense. Id. at 896. The State contended that the defendant had waived plain error review of the State's verdict director in that his counsel, when asked at the instruction conference, expressly stated that he had "no objection" to the giving of the challenged instruction. Id. at 897. In ruling that the defendant had not waived plain error review by stating "no objection," the Court stated: "Although the state is correct that appellant waived appellate review when counsel failed to raise a specific objection to the disputed ... instruction, it misconstrues the extent of the waiver. Unpreserved claims of plain error may still be reviewed under Rule 30.20 if manifest injustice would otherwise occur." Id. at 898.
Our case is factually distinguishable from Wurtzberger . There the defendant was attacking on appeal the verdict director submitted by the State, to which he did not object at trial. However, in our case, the defendant is attacking on appeal the verdict director he himself submitted at trial. As to that circumstance, the Missouri Supreme Court stated in State v. Leisure, 796 S.W.2d 875, 877 (Mo. banc 1990) : "This Court has long held that a defendant cannot complain of an instruction given at his request." This holding is in keeping with the time-honored general rule that a party cannot invite error and then raise it as reversible error on appeal. State v. Riggins, 987 S.W.2d 457, 463 (Mo. App. 1999); State v. Radley, 904 S.W.2d 520, 523 (Mo. App. 1995); State v. Collier, 892 S.W.2d 686, 691-92 (Mo. App. 1994); State v. Miller, 593 S.W.2d 895, 897 (Mo. App. 1980). Logically, if a party gets what he requests from the trial court, he should not be able to convict it of error, plain
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