And, although "[n]o error [occurs] if the trial judge does not express [an] opinion as to the nature, content or truthfulness of the evidence," id. at 614, such an opinion may be expressed implicitly through suggestive conduct or hostile remarks. See State v. Wren, 486 S.W.2d 447, 448-49 (Mo. 1972) (holding that the trial court committed prejudicial error by stating, in the presence of the jury, that it would allow defense counsel to continue his cross-examination "ad nauseum"); State v. Embry, 530 S.W.2d 401, 405 (Mo.App. 1975) (holding that the trial court committed plain error by sua sponte interjecting on behalf of the State four times during the appellant's cross-examination of a witness). We begin our analysis by placing the trial court's challenged comments and sua sponte rulings in their proper perspective.
Haddix is one of those cases. The other two are State v. Lomack, 570 S.W.2d 711 (Mo.App. 1978), and Statev. Embry, 530 S.W.2d 401 (Mo.App. 1975). Lomack involved a liquor store robbery. It occurred as the owner, his wife and an employee were opening the store.
The circumstances do not call for application of the plain error rule. The cases of State v. Haddix, 566 S.W.2d 266, 272-274[2-6] (Mo.App. 1978), and State v. Embry, 530 S.W.2d 401 (Mo.App. 1975), involved comments and inquiries by the trial judge in the presence of the jury. The court's remarks in those cases were held error because of the possibility that the remarks would indicate to the jury the court's opinion that the defendant was guilty. Embry was reviewed under the plain error rule on the theory that the remarks of the court denied the defendant a fair and impartial trial.
Our Supreme Court has held that the plain error rule does not cover all trial errors and has declined to delineate the precise bounds for applying it. State v. Mabery, 437 S.W.2d 91, 93 (Mo. 1969); State v. Embry, 530 S.W.2d 401, 404 (Mo.App. 1973). The plain error rule should be exercised "sparingly," State v. Sockel, 490 S.W.2d 336, 339 (Mo.App. 1973), and cannot be used as a vehicle for review of every alleged trial error which is not asserted or properly preserved for review.
The historical significance of approving such a probable deprivation of rights compels us to hold that manifest injustice resulted here. (Cf. State v. Embry, 530 S.W.2d 401 (Mo.App. 1975).)
Here, however, there is no allegation of juror misconduct. The sole case cited by defendant which addressed the issue of statements made by a trial judge is State v. Embry, 530 S.W.2d 401 (Mo.App. 1975). In that case, the trial judge intervened during examination of the defendant's witness.
It must remain impartial. State v. Embry, 530 S.W.2d 401, 403 (Mo.App. 1975). Here the court's comments were not excusable as a matter of controlling argument of counsel as contended by the state.
We have given this point our attention, but find it to be without merit. We find absolutely no similarity between this case and State v. Embry, 530 S.W.2d 401 (Mo.App. 1975), and the other cases cited to us by the defendant. We find that the federal courts have permitted extensive comment upon the failure to provide handwriting exemplars, e.g., United States v. Nix, 465 F.2d 90, 93-94 (5th Cir. 1972), cert. denied 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972), but those cases do not quite reach the point made here.
Review of alleged trial court errors not otherwise preserved for appellate review under the benefit of this subsection of Rule 27.20 may be considered by the appellate court in its discretion when the court deems that manifest injustice or miscarriage of justice has resulted from the alleged trial court error. The Rule is to be applied on a case by case basis where substantial rights are affected and there is a strong, clear showing that injustice will result if the Rule is not invoked. State v. Williams, 541 S.W.2d 89, 91[2] (Mo.App. 1976); State v. Embry, 530 S.W.2d 401, 404[2] (Mo.App. 1976). Our examination of the record has failed to cause us to conclude that there is any manifest injustice or miscarriage of justice present here resulting from the alleged error of the trial court which was not properly preserved to warrant application of the Rule.
The comment of the court went without challenge by the defendant at the trial. He now claims plain error under Rule 27.20 and relies principally on State v. Embry, 530 S.W.2d 401 (Mo.App. 1975) where the court took up sua sponte consideration of prejudice from judicial misconduct which went without objection. In Embry the trial court interrupted defense counsel examination of an alibi witness on four successive questions to which no objection had been made by the State.