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State v. Beck7/26/2005
s claim in Point II, we now turn to the merits of his claim.
B. Plain Error
In Point II, the appellant claims that the trial court plainly erred in failing to modify, sua sponte,his self-defense instruction, Instruction No. 11, to instruct the jury that it could consider not only the actions of the victim, but the victim's friends, in determining whether he acted in lawful self-defense in stabbing the victim, because, without such modification, MAI-CR 3d 306.06 does not correctly instruct on the law of self-defense in cases of multiple assailants, as in this case. Specifically, he claims that the paragraph of Instruction No. 11, which reads: "If the [appellant] was not the initial aggressor in the encounter with Matthew Snarr, and if the [appellant] reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr and the [appellant] used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self defense," should have been modified, sua sponte, by the trial court to read: "If the [appellant] was not the initial aggressor in the encounter with Matthew Snarr, and if the [appellant] reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr ' and those whom the defendant reasonably believed were acting in concert with Matthew Snarr ' and the [appellant] used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self defense."
In State v. Hibler, this court set forth the plain error standard of review for instructional error:
Giving the language in [Rule 30.20] its plain and ordinary meaning, we interpret it as providing for a two-step process in determining plain error review. Under the rule, the first step involves an examination to determine whether the claim for review facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted, or in other words, whether on the face of the claim, plain error has, in fact, occurred. . . . Plain errors are those which are evident, obvious and clear. If plain error is found on the face of the claim, then the rule authorizes, as a matter of court discretion, a second step to determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.
Instructional error seldom rises to the level of plain error. To show that the trial court plainly erred in submitting a jury instruction, a defendant must go beyond a demonstration of mere prejudice. In the context of instructional error, plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict, and cause manifest injustice or miscarriage of justice. The defendant bears the burden of showing that plain error has occurred which resulted in manifest injustice or a miscarriage of justice.
21 S.W.3d 87, 96 (Mo. App. 2000) (citations omitted).
Rule 28.02(c) provides: "Whenever there is an MAI-CR instruction or verdict form applicable under the law and Notes On Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form." "Whenever there is evidence supporting [self] defense, [ MAI-CR 3d 306.06] must be given." MAI-CR 3d 306.06, Note on Use 2. Hence, "MAI-CR 3d 306.06 is the mandatory instruction to be given when instructing on self-defense." White, 92 S.W.3d at 191. "The giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes On Use shall constitute error, the error's prejudicial effect to be judi
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