“Plain Error” Is To Be Determined at the Time of Appeal

State v. Kelley, Minn.S.Ct.,  10/22/2014.  Two trials occur more or less at the same time.  In each, the trial judge gives an instruction on accomplice liability without objection.  Each defendant is convicted and appeals that conviction.  Each appeal makes the claim that the instruction on accomplice liability was incorrect and was thus “plain error” under that doctrine.  One of the appeals goes just a bit faster than the other, resulting in an opinion that says that the instruction was erroneous but not “plain error.”  A few days later, the second appeal is decided.

That’s Mr. Kelley.  The not existential question is at what point in the litigation should the appellate court determine whether an error is “plain error.”  The error was not “plain” at the time of trial.  The error was not “plain” at the commencement of the appeal.  The error became “plain” only upon the issuance of the first appellate opinion. 

Notwithstanding all that, Justice Dietzen, writing for everyone on the court but Justice Stras, pronounces that the point in the litigation at which to determine whether an error is “plain error” is on appeal.  Mr. Kelley’s error is thus “plain error” because of an earlier opinion that changed the law on what an accomplice liability instruction is supposed to look like.

Justice Stras says that adoption of a “plain at the time of appeal” rule just encourages defense counsel to sit mute whenever she thinks that the trial judge is even remotely messing things up, in the hopes that a “plain at the time of appeal” analysis will get her client a new trial.  It’s also just plain unfair.  The majority, on the other hand, says, yes, it’s rule may, indeed discourage timely objections at trial.  That’s not the point, however, of having a “plain error” mechanism.  That mechanism is to provide a qualified “safe harbor” to un-objected to errors.  Also, an appellate court out to be applying the law in effect at the time it renders its decision, which is exactly what the United States Supreme Court had concluded in Henderson v. United States, ___ U.S. ___, 133 S.Ct. 1121 (2013).

And Mr. Kelley?  He could not satisfy all of the requirements of the “plain error” rule.  Conviction affirmed.