State v. Payne, 488 S.W.3d 161

In January 2013 Payne and an associate entered a store; surveillance video showed Payne shoot two shopkeepers, killing Anan Abdallah and injuring Ali Slieman. Payne’s DNA was found on a gun near the store.
Payne was charged with first-degree murder, first-degree assault, and two counts of armed criminal action.
The day before trial the trial judge reviewed the surveillance video and 911 call with Payne off the record and discussed a plea offer the State had made; Payne declined to plead.
At trial the defense requested a voluntary manslaughter instruction (claiming sudden passion); the court refused that instruction but instructed the jury on first- and second-degree murder, first-degree assault, and armed criminal action.
The jury convicted Payne of first-degree murder, first-degree assault, and two counts of armed criminal action; Payne received life without parole for murder and life for each other count.
On appeal Payne sought plain-error review asserting (1) the court erred in refusing the voluntary manslaughter instruction and (2) the court should have recused sua sponte for participating in plea discussions and prejudging guilt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court plainly erred by refusing voluntary manslaughter instruction	Payne: Jackson requires nested-lesser instruction refusal not be based on judge’s view of evidence; voluntary manslaughter should have been submitted because of sudden passion evidence	State/Court: Voluntary manslaughter is not a nested lesser offense of murder and the jury was instructed on second-degree murder, which tested deliberation	No plain error; voluntary manslaughter not required because it is not a "nested" lesser and second-degree murder instruction already tested deliberation
Whether judge should have recused sua sponte for participating in plea discussions and prejudging case	Payne: Judge’s off-the-record review of video/911 and plea discussions show improper participation and prejudgment requiring recusal	State/Court: Presumption of judicial impartiality; no extrajudicial bias shown; reviewing evidence and discussing plea offers alone do not establish disqualifying bias	No plain error; record does not show extrajudicial source of bias or appearance of impropriety causing manifest injustice

State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014) (trial court cannot refuse timely requested nested lesser-included instruction based solely on judge’s view of evidence)
State v. Randle, 465 S.W.3d 477 (Mo. banc 2015) (definition and characteristics of nested lesser-included offenses)
State v. Jones, 427 S.W.3d 191 (Mo. banc 2014) (plain-error review standard under Rule 30.20)
State v. Baxter, 204 S.W.3d 650 (Mo. banc 2006) (plain error must be outcome-determinative to warrant new trial)
State v. Meine, 469 S.W.3d 491 (Mo. App. E.D. 2015) (no reversible error when greater and one lesser instruction given and conviction on greater; omitted lesser must test a different element)
State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009) (same principle regarding lesser-included instructions)
State v. Glass, 136 S.W.3d 496 (Mo. banc 2004) (same principle regarding lesser-included instructions)
Briggs v. State, 446 S.W.3d 714 (Mo. App. W.D. 2014) (omitted voluntary manslaughter did not challenge a different element than second-degree murder)
State v. Anderson, 402 S.W.3d 86 (Mo. banc 2013) (recusal standard; Rule 2-2.11 application)
Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (disqualifying bias must have extrajudicial source)
State v. Redmond, 937 S.W.2d 205 (Mo. banc 1996) (definition/elements of voluntary manslaughter)