¶1dissenting.
¶2I have concluded that I must dissent from the majority’s holding that we have no authority to review claims of error in MAI-CR instructions required to be given under Rule 28.02. I realize that there are many cases supporting the position taken by the majority opinion. The seminal case appears to be State v. Yeokum, 516 S.W.2d 535, 537 (Mo.App.1974), in which I participated as a panel member. Cases typifying this point of view are:
Western District:
State v. Burton, 544 S.W.2d 60, 64 (Mo.App.1976)
State v. Washington, 570 S.W.2d 838, 843 (Mo.App.1978)
State v. Grady, 577 S.W.2d 930, 931 (Mo.App.1979)
State v. Mick, 674 S.W.2d 554, 558 (Mo.App.1984)
State v. Turner, 705 S.W.2d 108, 110 (Mo.App.1986)
Eastern District:
State v. Blockton, 526 S.W.2d 915, 919 (Mo.App.1975)
State v. Crafton, 579 S.W.2d 662, 663 (Mo.App.1979)
State v. Finch, 611 S.W.2d 405, 406 (Mo.App.1981)
*824State v. Frank, 639 S.W.2d 209, 211 (Mo.App.1982)
State v. Toney, 680 S.W.2d 268, 278 (Mo.App.1984)
Southern District:
State V-. Simpson, 614 S.W.2d 31, 32 (Mo.App.1981)
State v. Davis, 675 S.W.2d 652, 658 (Mo.App.1984)
State v. Hawkins, 703 S.W.2d 67, 70-71 (Mo.App.1985)
¶3In State v. Mitchell, 704 S.W.2d 280, 284-285 (Mo.App.1986), the Southern District specifically noted that the districts of the court of appeals have consistently denied their authority to review claims of MAI-CR instructional error, but the Supreme Court of Missouri had not yet ruled the issue. While not squarely addressing the question, there is a comment in State v. Newlon, 627 S.W.2d 606, 614 (Mo. banc), cert, denied, 459 U.S. 884,103 S.Ct. 185, 74 L.Ed.2d 149 (1982), which indicates that such instructions are not reviewable at all.
¶4In none of the cases is any particular rationale given for the denial of review of MAI-CR instructions. I have come to believe that this interpretation of the power of this court to consider an error on appeal presents an unconstitutional application of the supreme court rules.
¶5In Missouri the right of criminal defendants to appeal is guaranteed by statute, § 547.070, RSMo 1978. That right of appeal is reflected in Rule 30.01 and there is no limitation in either the rule or the statute on properly preserved matters that may be raised on direct appeal. It is further a part of our constitution that the supreme court rules cannot change the law relating to the right of appeal. MO. CONST, art. V, § 5; State v. Pottinger, 287 S.W.2d 782, 784 (Mo.1956); State v. La Driere, 299 S.W.2d 512, 515 (Mo. banc 1957); State v. Lynch, 679 S.W.2d 858, 862 (Mo. banc 1984).
¶6Thus, an interpretation and application of Rule 28.02 concerning the use of instructions which denies a defendant a right to a direct appeal in this court changes the right of appeal. It changes the right of appeal because, if there is no review here, a defendant has no right of direct appeal to any court since his only claim to review by the supreme court is upon a motion for transfer after opinion in this court, the grant of which is entirely discretionary with the supreme court.
¶7I further believe that this application of Rule 28.02 may constitute a violation of federal constitutional rights. Many federal cases have concluded that once the right of appeal has been granted it may not be limited or denied by subsequent action of the state directed to individual cases. Some of the cases and their holdings are as follows:
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
Error to dismiss appeal of impoverished defendants who could not afford to furnish transcript.
Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed. 811 (1963).
Indigent defendants were denied equal protection where merits of the one appeal they had as of right were decided without benefit of counsel.
Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966).
Statute requiring imprisoned indigents to reimburse the county for cost of transcript in unsuccessful appeal while not imposing the same burden on persons receiving a suspended sentence, who were placed on probation or who were only fined is violative of equal protection. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
Criminal defendant is entitled to effective assistance of counsel on first appeal as of right.
Blanchard v. Brewer, 318 F.Supp. 28 (S.D.Iowa 1969), affirmed, 429 F.2d 89 (8th Cir.1970), cert. denied, 401 U.S. 1002, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971).
Defendant may not be deprived of appeal of right by any act or failure to act upon the part of the state which unfairly denies him his right of appeal.
¶8*825Many of these cases find that impediments to the right of appeal are unconstitutional. I believe that the denial of the right of direct appeal to a particular issue offends the principle of those cases. I realize that my dissent flies in the face of a good many decided eases, but sooner or later the issue will have to be confronted and decided.