State v. Foster, 631 S.W.2d 672, 675 (Mo.App. 1982) (reversing for failure to cross-reference a mistake of fact defense instruction in a verdict director for rape). The absence from a verdict director of an explicit cross-reference to a separate defense instruction, however, has not been viewed as plain error. State v. Dunlap, 706 S.W.2d 272, 277 (Mo.App. 1986); State v. Cooksey, 805 S.W.2d 709, 710-11 (Mo.App. 1991). In Dunlap the defendant was found guilty, as charged, of each of two counts of assault.
In our unpublished memorandum, we explained that, in cases such as State v. McClure , 632 S.W.2d 314, 317 (Mo. App. 1982), when the failure to cross-reference a special negative defense like the one set forth in Instruction No. 6 was preserved, appellate courts have found the failure to cross-reference prejudicial, even in the presence of evidence that the jury was not likely misdirected, and have reversed and remanded for a new trial. When the error was not preserved, however, cases like State v. Burns , 292 S.W.3d 501, 508 (Mo. App. 2009) and State v. Cooksey , 805 S.W.2d 709, 710-11 (Mo. App. 1991), have required the appellant to establish that "the outcome of the trial would have been different but for the alleged error" in order to be entitled to reversal under plain error review. To meet this standard of prejudice, the appellant must show that the jury either was unaware of the defense instruction or failed to use the instruction in its deliberations.
State v. Hawkins, 58 S.W.3d 12, 18 (Mo.App. 2001); State v. Cooksey, 805 S.W.2d 709, 710-11 (Mo.App. 1991); State v. Dunlap, 706 S.W.2d 272, 277 (Mo.App. 1986).
"The absence from a verdict director of an explicit cross-reference to a separate defense instruction . . . has not been viewed as plain error." Id., citing State v. Cooksey, 805 S.W.2d 709, 710-11 (Mo.App. 1991), and State v. Dunlap, 706 S.W.2d 272, 277 (Mo.App. 1986). Under the facts in this case, this court finds no plain error as a result of Instruction No. 5 having not cross-referenced the self-defense instruction.
Rather, prejudice exists, under the "plain error" rule, only where the error complained of impacts so substantially upon the rights of a defendant that manifest injustice or a miscarriage of justice will result if left uncorrected. State v. Cooksey, 805 S.W.2d 709, 711 (Mo.App.W.D. 1991). The burden of proving manifest injustice or miscarriage of justice is on the Appellant.
Rather, prejudice exists, under the "plain error" rule, only where the error complained of impacts so substantially upon the rights of a defendant that manifest injustice or a miscarriage of justice will result if left uncorrected. State v. Cooksey, 805 S.W.2d 709, 711 (Mo.App.W.D. 1991). The burden of proving manifest injustice or miscarriage of justice is on the defendant.
For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury as to cause manifest injustice or a miscarriage of justice. Id. See also State v. Cooksey, 805 S.W.2d 709, 710 (Mo. App. 1991). The defendant bears the burden of establishing manifest injustice.
Id. See also State v. Cooksey, 805 S.W.2d 709, 710 (Mo.App.W.D. 1991). The defendant bears the burden of establishing manifest injustice.
(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process.State v. Cooksey, 805 S.W.2d 709, 710 (Mo.App. 1991). Not only did defendant fail to establish a prima facie violation, but he did not even allege underrepresentation of blacks on the venire panel.
Furthermore, this court has noted "Systematic exclusion of a distinctive group is not established by the nonrepresentation or underrepresentation of a group on a particular jury panel." State v. Cooksey, 805 S.W.2d 709, 710 (Mo.App. 1991). Appellant has not shown prejudice resulting from the all white jury, or prejudice resulting from counsel's decision not to object to either the venire or the jury selected due to racial composition; therefore, the second point on appeal is denied.