State v. Burkett: Discretion to Decline Plain-Error Review When the Defendant Contributes to Unpreserved Error or the Claim Likely Reflects Trial Strategy

1. Introduction

State v. Burkett (Mo. banc Dec. 29, 2025) addresses two unpreserved claims raised after a jury convicted Burkett of first-degree assault and armed criminal action arising from a convenience-store altercation in Texas County. Witnesses testified Burkett pointed a semiautomatic handgun at his brother-in-law (“Victim”), threatened him, and pulled the trigger; the gun clicked but did not fire. Burkett gave multiple accounts to law enforcement and at trial.

At trial, defense counsel pursued a theory that Burkett did not intend to cause serious physical injury—arguing the gun was unloaded and used only to scare. Burkett’s own testimony, however, also included statements suggestive of self-defense. The circuit court submitted the verdict director for first-degree assault but did not instruct the jury on self-defense. Burkett did not request a self-defense instruction and affirmatively stated he had “no” objections and tendered “no” additional instructions.

On appeal, Burkett conceded lack of preservation and sought plain error review under Rule 30.20 on two issues: (1) omission of a self-defense instruction; and (2) the State’s closing argument asserting intent “does not matter” under the assault instruction without a curative instruction.

2. Summary of the Opinion

The Supreme Court of Missouri affirmed, not by holding the complained-of errors were necessarily harmless or nonexistent, but by holding that discretion warranted declining plain-error review. The Court acknowledged that Burkett’s testimony likely injected self-defense such that failure to instruct “likely amounts to plain error,” and also acknowledged the prosecutor misstated the law in closing argument and the circuit court “may have” committed clear error by not correcting it. Nevertheless, invoking the discretionary nature of Rule 30.20 (as framed by State v. Jones), the Court declined review because Burkett caused or contributed to the errors (through non-request and affirmative acquiescence) and because the unpreserved issues were plausibly attributable to reasonable trial strategy and were ill-suited for plain-error review.

3. Analysis

3.1 Precedents Cited

  • State v. Jones, No. SC101104 (Mo. banc Dec. 29, 2025):

    This is the decision’s key methodological anchor. Jones is cited for (i) the baseline that trial courts are not “convicted of error” for issues never presented; (ii) the text-driven principle that Rule 30.20 is discretionary; (iii) that an appellant’s actions/inactions contributing to error and claims likely reflecting trial strategy may justify declining review; and (iv) the admonition that plain error is to be used “sparingly.” Burkett operationalizes Jones by treating both alleged errors as discretionary “decline” cases even while assuming the presence of “evident, obvious, and clear” error.

  • State v. Oates:

    Cited to characterize self-defense as a justification defense, framing why the instruction’s omission matters substantively (it can excuse otherwise criminal conduct).

  • State v. Hurst (Powell, J., concurring):

    Supplies the doctrinal taxonomy that self-defense is a special negative defense—once injected, the State must disprove it beyond a reasonable doubt. The opinion leverages the concurrence’s explanation to emphasize that absence of self-defense is “fundamental” to criminal liability once the defense is in play.

  • State v. Bruner:

    Establishes that when substantial evidence supports self-defense, the circuit court must submit an instruction explaining the State’s burden to disprove self-defense beyond a reasonable doubt. Burkett treats this as the baseline “instructional duty” rule.

  • State v. Westfall:

    Cited for two critical propositions: (i) the duty to instruct on self-defense can exist even absent a request; and (ii) a defendant’s testimony alone can constitute substantial evidence to inject self-defense.

  • State v. Barnett and State v. Cole:

    Provide the evidentiary lens: when assessing whether self-defense was injected, courts view evidence in the light most favorable to the defendant. This supports the Court’s acknowledgment that Burkett’s testimony likely required a self-defense instruction.

  • State v. Thompson, State v. Jackson-Bey, State v. Bolden, State v. Mills, and State v. Mayes:

    These cases are invoked to address the vocabulary of “waiver,” “invited error,” and forfeiture in the plain-error context. Burkett clarifies that such labels often describe an appellate court’s choice to deny discretionary plain-error review when the defendant affirmatively caused or contributed to the error—rather than a rigid jurisdictional bar to Rule 30.20 review.

  • State v. Wurtzberger:

    Used to reject the State’s framing that Burkett “waived” plain-error review. Wurtzberger held that saying “no objection” does not automatically eliminate plain-error review; rather, review remains possible if manifest injustice would otherwise occur. Burkett recasts Wurtzberger as consistent with a discretionary framework: invited/contributed error is a powerful factor, not an absolute bar.

  • Brandolese:

    Cited for the principle that Wurtzberger does not require review of all plain-error claims—reinforcing the “sparingly used” theme.

  • State v. Ess (Wilson, J., concurring in part and dissenting in part):

    Supplies the “ill-suited for plain error” reasoning where the lack of an objection may reflect reasonable trial strategy—applied by Burkett both to instructions and to closing argument.

  • State v. Anderson and State v. Holmsley:

    Provide the governing rule for the second claim: misstatements of law are impermissible in closing and the circuit court has a duty to restrain/cure such arguments, including with a curative instruction.

  • Barton v. State, State v. Johnson, and State v. Clemons:

    Support the proposition that plain-error review of closing argument is rare because not objecting is often strategic (e.g., not highlighting the argument).

  • State v. Wood:

    Establishes that improper closing argument rarely warrants reversal absent a “decisive effect” on the jury; the Court uses this to weigh the likelihood of manifest injustice when deciding whether to exercise discretion.

  • State v. Gilbert:

    Used for the presumption that jurors follow instructions—central to the Court’s decision to discount the risk that the prosecutor’s misstatement overrode the written verdict director requiring a purposeful “attempt.”

3.2 Legal Reasoning

A. The Court’s two-step posture: acknowledging likely “plain error,” then declining review

The opinion is notable for separating (1) whether the complained-of defect looks like plain error and (2) whether the Court will exercise discretion to review it. On both points, the Court suggested the record supports “evident, obvious, and clear” error (the standard described in State v. Jones)—yet still refused review.

B. Point I (self-defense instruction): duty exists, but discretionary review is declined

Applying State v. Westfall, State v. Bruner, and State v. Barnett, the Court concluded Burkett’s testimony (“scared for his life,” gun drawn “in self-defense”) constituted substantial evidence injecting self-defense. Because self-defense is a special negative defense (from State v. Hurst) requiring the State to disprove it beyond a reasonable doubt once injected, the omission “likely amounts to plain error.”

The Court nevertheless declined review based on factors drawn from State v. Jones:

  • Contribution to the error: Burkett did not request the instruction, did not object, affirmatively said “no” objections, and did not raise it in the motion for new trial.
  • Trial-strategy incompatibility: Burkett’s trial theory focused on lack of intent (unloaded gun; mere scare tactic). A self-defense instruction would have implied intentional use of force justified by necessity, potentially undermining that theory. The Court treated this as an “ill-suited” plain-error scenario (echoing State v. Ess).
  • Clarifying “waiver” rhetoric: While prior cases use “waiver/invited error,” the Court emphasized Rule 30.20’s text—review “may” be considered—so these concepts inform discretion rather than imposing an absolute bar. State v. Wurtzberger is used to show even “no objection” does not automatically foreclose discretionary review.

C. Point II (closing argument): misstatement acknowledged, but discretionary review is declined

The prosecutor repeatedly asserted intent did not matter, despite the verdict director defining “attempt” as requiring purpose. The Court agreed the State misstated the law and that the circuit court “may have” committed clear error by failing to correct it, citing State v. Anderson and State v. Holmsley.

The Court still declined review based on:

  • Contribution/forfeiture: no objection and no request for a curative instruction.
  • Strategic non-objection concerns: plain-error review of closing argument is rare because non-objection can be strategic (citing Barton v. State, State v. Johnson, State v. Clemons).
  • Context and lack of decisive effect: under State v. Wood, the Court evaluated the whole record and observed the State later argued multiple times that Burkett intended to kill or harm.
  • Instruction-following presumption: under State v. Gilbert, jurors are presumed to follow the verdict-directing instruction requiring purpose, and to treat counsel’s arguments as non-evidence.

3.3 Impact

State v. Burkett strengthens (and concretizes) a post-State v. Jones approach to Rule 30.20: Missouri’s high court may decline plain-error review even where the record suggests an “obvious” error, particularly when:

  • the defendant affirmatively acquiesced in the procedure (e.g., “no objection” to instructions),
  • the defendant failed repeatedly to request the relief now claimed (instruction, curative instruction, new-trial claim), and
  • the alleged error plausibly aligns with counsel’s trial strategy or is otherwise ill-suited for retrospective plain-error adjudication.

Practically, the opinion incentivizes defense counsel to preserve issues (requests, objections, new-trial motions) and signals that “structural importance” of a doctrine (like self-defense as fundamental to liability once injected) does not guarantee plain-error review if the defense’s litigation choices created the posture.

4. Complex Concepts Simplified

  • Plain error (Rule 30.20): A limited safety valve allowing appellate courts to consider unpreserved errors, but only in the court’s discretion and typically only to prevent “manifest injustice or miscarriage of justice.”
  • Discretionary review: Even if an error looks obvious, the appellate court can decide not to review it—especially when the party complaining helped create it or when the issue is poorly suited for after-the-fact assessment.
  • Self-defense as a “special negative defense”: Once there is substantial evidence of self-defense, the State must disprove self-defense beyond a reasonable doubt. It is “negative” because it negates criminal liability; “special” because the State bears the disproving burden once injected.
  • “Injected into the case”: The defendant introduces enough evidence (even just defendant’s testimony) to put self-defense in play; then the jury must be instructed on it if substantial evidence exists.
  • Invited error / waiver (as used here): Not an absolute bar to Rule 30.20 review; rather, shorthand for why an appellate court may refuse discretionary plain-error review when the party’s own actions (e.g., affirmatively approving instructions) contributed to the alleged error.
  • Curative instruction: A direction from the judge telling the jury to disregard an improper statement (such as a misstatement of law in closing argument).

5. Conclusion

State v. Burkett does not deny that a self-defense instruction may have been required once Burkett testified to fear and self-defense, nor does it approve prosecutorial claims that “intent does not matter” where the verdict director requires purposeful attempt. Its central significance lies elsewhere: the Court applies Rule 30.20 as a discretionary gatekeeping doctrine, declining review when the defendant’s failure to request or object—and the likelihood of trial strategy—makes post-trial plain-error correction inappropriate. In doing so, the decision reinforces preservation norms and signals that even serious-looking, unpreserved errors may go unreviewed when the defense helped create the record posture.