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State v. Beck7/26/2005
or otherwise, for complying with his request. More significant as to why this should be the law, however, is the fact that section 545.030.1 provides, in pertinent part, that no criminal "trial, judgment or other proceedings [shall] be . . . in any manner affected: . . . (16) For any error committed at the instance or in favor of the defendant[.]" (Emphasis added.) In referencing "any" error in section 545.030.1, it seems clear that the legislature intended to include "every" error of any stripe, which would include plain error. See State v. Williams, 24 S.W.3d 101, 115 (Mo. App. 2000) (citing Boone County Court v. State, 631 S.W.2d 321, 325 (Mo. banc 1982), holding that "any" should be construed as being 'all-comprehensive' in a statutory provision) . While Leisure and section 545.030.1(16) would seem to clearly mandate that the appellant's proffering of Instruction 11 at trial precluded or estopped him from challenging on appeal the trial court's giving of that instruction, the Missouri Supreme Court's holding in State v. Derenzy, 89 S.W.3d 472 (Mo. banc 2002),suggests otherwise.
In Derenzy, the defendant was charged with the delivery of a controlled substance, marijuana, within 2,000 feet of a school, in violation of section 195.214.1. 89 S.W.3d at 473. At trial, the defendant proffered a verdict director on the lesser-included offense of possession, which failed to accurately describe the charged offense. Id.The defendant's proffered verdict director on the lesser-included offense was rejected by the trial court, the court finding that possession of marijuana was not a lesser-included offense of the charged offense. Id. at 473-74. The defendant was convicted of the charged offense, and he appealed. Id. at 474. After opinion by this court, the case was transferred to the Missouri Supreme Court. Id. The Court found that the possession of marijuana was a lesserincluded offense of the charged offense and that the defendant was required to submit a proposed instruction instructing the jury thereon. Id. at 474-75. With respect to the appellant's failure to proffer a correct version of such an instruction, the Court held that the failure: "under circumstances render his claims of error unpreserved . . . [such that he] waived Rule 28.03 review of the point." Id. at 475(citing Wurtzberger, 40 S.W.3d at 897). However, the Court held that an "instruction on the lesser included offense was mandat " and that the defendant's failure to submit a proper lesser-included instruction did not waive plain error review, under Rule 30.20, of the trial court's failure to give such an instruction. Id. The Court then held that the trial court's failure to give a proper lesser-included instruction constituted "plain error result in manifest injustice" to the defendant, requiring reversal and remand for a new trial. Id.
We read Derenzy for the proposition that if a lesser-included instruction is mandated, the trial court is obligated to give a correct one and that while the failure of the defendant to provide a correct instruction for that purpose, as required by Rule 28.02(b), waives appellate review, under Rule 28.03, it does not waive plain error review, under Rule 30.20 . It seems logical that the Court's rationale for its holding in Derenzy would extend to a mandated self-defense instruction, such that even if the defendant proffers such an instruction in improper form, he does not waive plain error review thereof.
In In State v. Westfall, 75 S.W.3d 278, 281 (Mo. banc 2002), also decided by the Missouri Supreme Court, the defendant was convicted of first-degree assault and armed criminal action. Id. at 280. He appealed, claiming, inter alia, that the trial court erred in rejecting his proposed self-de
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