McNeal v. State

412 S.W.3d 886, 2013 WL 5989237, 2013 Mo. LEXIS 295

• Court: Supreme Court of Missouri
• Decided: November 12, 2013
• Docket: No. SC 92615
• Status: Published

Opinions

RICHARD B. TEITELMAN, Judge.

David A. McNeal was convicted of one count of burglary in the second degree, section 569.170, and one count of stealing, section 570.030.¹ McNeal filed a Rule 29.15 motion for post-conviction relief alleging that counsel was ineffective for failing to request a jury instruction on the lesser-included offense of trespassing. The motion court overruled McNeal’s motion without holding an evidentiary hearing. The judgment is reversed, and the case is remanded.²

I. Facts

In May 2008, two men were installing floors at apartment 510 in the Riverbend Apartment complex in St. Louis. At the same time, McNeal was visiting his son’s mother, who lived next door in apartment 511. McNeal went to apartment 510 to collect $10 allegedly owed to him by a woman named Tracy. McNeal was acquainted with Tracy and had visited her in her apartment on previous occasions. As McNeal approached apartment 510, he saw two men leave the apartment. McNeal believed that the two men had visited Tracy, so he approached them to ask if Tracy was busy. It is not clear what was said, but McNeal went back to Tracy’s apartment and knocked on the door. No one answered the door, but McNeal heard the sound of a radio in the apartment. McNeal opened the door and observed that the apartment was empty. At trial, McNeal testified that he was “in shock” that the apartment was empty and that he “didn’t have any idea that the lady had moved and so I’m standing there.” McNeal testified that, once inside the apartment, he saw a drill and decided to take it. McNeal admitted stealing the drill but denied that he entered the apartment with the intent to steal.

McNeal’s counsel argued that McNeal did not enter the apartment “with the intent when he went in there.” Counsel also questioned a police officer if McNeal’s conduct, although charged as a burglary, could constitute a trespass. Although the issue of trespass was raised, counsel did not request a trespass instruction. During deliberations, the jury submitted a question to the judge asking if a burglary conviction can be based on “intent to commit the crime after he opens the door” or whether “it must occur prior to open-ingdouching the door?” The jury convicted McNeal of stealing and burglary. The convictions were affirmed on direct appeal. State v. McNeal, 292 S.W.3d 609 (Mo.App.2009).

McNeal filed a Rule 29.15 motion for post-conviction relief alleging that trial counsel was ineffective for failing to request a trespassing instruction as a lesser-included offense of burglary. McNeal alleged that the trial court would have been required to give a trespass instruction because the evidence supported the instruction. He also alleged that he was prejudiced by counsel’s failure because there was a reasonable probability that the jury would have convicted him of trespassing instead of burglary.

The motion court overruled McNeal’s claim without an evidentiary hearing. The court concluded that counsel may have had a reasonable trial strategy for not submitting a trespass instruction. The court then cited State v. Hinsa, 976 S.W.2d 69, 73 (Mo.App.1998), for the proposition that when one enters a building and commits a crime, “there is no ambiguity in his purpose for entering, hence there is no basis for submitting trespass in the first degree.” The court reasoned that McNeal was not entitled to a trespass instruction because:

Once the door was opened and it was apparent the apartment was empty there could have been no purpose at that point for [McNeal] to enter the apartment. [McNeal’s] defense was that he did not enter the apartment unlawfully because he thought Tracy lived there and he was in shock when he found the apartment vacant. This defense, if believed, would preclude a finding that he was guilty of trespass in the first degree, that he knowingly entered the apartment unlawfully. Unlawfully entering an apartment that clearly was no longer occupied by Tracy could reasonably only have been for the purpose of committing a crime therein.

The court concluded that, even if counsel had submitted a trespass instruction, McNeal would not have been entitled to the instruction. McNeal appeals.

II.Standard of Review

A motion court’s judgment will be reversed only if the findings of fact or conclusions of law are clearly erroneous. Rule 29.15(k). A judgment is clearly erroneous when an appellate court is left with a “definite and firm impression that a mistake has been made.” Zink v. State, 278 S.W.Sd 170, 175 (Mo. banc 2009).

III.Ineffective Assistance of Counsel

McNeal is entitled to an eviden-tiary hearing only if: (1) he pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (8) the matters complained of resulted in prejudice to the movant. Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011). Therefore, to obtain an evidentiary hearing on his claims of ineffective assistance of trial counsel for failure to request instructions on a lesser-included offense, McNeal must plead facts, not refuted by the record, showing “that the decision not to request the instruction was not reasonable trial strategy.” Hendrix v. State, 369 S.W.3d 93, 100 (Mo.App.2012) (quoting Oplinger v. State, 350 S.W.3d 474, 477 (Mo.App.2011)). McNeal also must plead facts showing that he was prejudiced by counsel’s failure to request the trespass instruction. In this context, “prejudice” means a reasonable probability that the outcome of the trial would have been different if the trespass instruction had been given. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). A reasonable probability exists when there is “ ‘a probability sufficient to undermine confidence in the outcome.’ ” Id. at 33-34 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

IV.Deficient Performance

■ McNeal alleged that counsel failed to request a trespass instruction and that this failure was not justified by any “strategy or reason, other than inadvertence.... ” Although there is a presumption that trial counsel’s performance is sufficient, McNeal’s .claim that trial counsel lacked a reasonable strategy for not requesting an instruction on the lesser-included offense of trespassing is not clearly refuted by the record.

Trespass in the first degree is a lesser-included offense of burglary in the second degree. State v. Yacub, 976 S.W.2d 452, 453 (Mo. banc 1998) (citing State v. Blewett, 858 S.W.2d 455, 459 (Mo.App.1993)). “A person commits the crime of trespass in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property.” Section 569.140. • Second-degree burglary requires the additional element that a person unlawfully entered a building with the purpose of committing a crime therein. Section 569.170.

“If the evidence tends to establish the defendant’s theory, or supports differing conclusions, the defendant is entitled to an instruction on it.” State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003). Therefore, “[i]f the evidence supports differing conclusions, the judge must instruct on each.” State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004). Doubt as to whether to instruct on the lesser-included offense is resolved in favor of giving the lesser-included offense instruction. Yacub, 976 S.W.2d at 453.

McNeal testified at trial that he opened the apartment door and was “in shock” to discover that the apartment was empty because he. “had no idea that the lady had moved and so I’m standing there.” McNeal testified that once he entered the apartment he noticed the drill and then decided to steal it. Additionally, the property manager for Riverbend Apartments testified that McNeal did not have permission to be in the apartment. The testimony from McNeal and the property manager provided a basis for the jury to conclude that McNeal did not enter the apartment with the intent to commit a crime and, instead, committed a trespass by unlawfully entering the apartment and then decided to commit a crime.

The motion court relied on Hinsa to support the conclusion that the only reasonable conclusion to draw from the evidence is that McNeal entered the apartment with the intent to commit a crime. Hinsa, however, is factually distinguishable. The defendant in Hinsa stopped his car at an unoccupied house at 3 a.m. for the purported reason of using the restroom. 976 S.W.2d at 70. The homeowner testified that he “maintain[ed] utilities” and “[everything was locked.” Id. at 70. The defendant entered the home and, even though the lights worked, chose to walk through the house with the aid of his flashlight while stealing several items. Id. at 71. This fact was important, because “it is inferable that [the defendant] did not turn on the lights in the house because he wanted to conceal his presence.” Id. at 73. Further, a police officer testified that he “observed several dresser drawers, chest of drawers pulled out” and that “[s]everal things looked like it had been ransacked.” Id. at 70. Finally, the defendant admitted taking “a few tables” from the back porch of the home. Id. at 73. The evidence in Hinsa showed that the defendant likely forcibly entered into an unoccupied, locked home at 3 a.m.„ searched through the home with a flashlight, moved furniture from the back porch, placed several items in his pockets, and proceeded to “ransack” various areas of the home. It was under these circumstances that the court of appeals concluded that there was “no ambiguity in [the defendant’s] purpose for entering” the home. Id. at 73.

In contrast to Hinsa, the evidence in this case demonstrates ambiguity in McNeal’s purpose in entering apartment 510. Unlike the defendant in Hinsa, McNeal did not enter a locked residence in the middle of the night or search through the premises with a flashlight in an effort to conceal his presence. Instead, there was evidence that McNeal had visited Tracy in her apartment on prior occasions, believed she still lived there and knocked on the unlocked door before entering the apartment. McNeal’s testimony demonstrates a trespass but is ambiguous with respect to whether he committed a burglary by entering with the intent to steal. Unlike in Hinsa, the evidence in this case provides a reasonable basis for a jury to conclude that McNeal committed a trespass because he unlawfully entered the apartment but did not do so with the intent of committing a crime. A trespass instruction would have been consistent with the evidence and with counsel’s argument.³ Counsel did not argue that McNeal had committed no crime. Instead, counsel raised the possibility that McNeal may have committed a trespass by entering the apartment but then failed to request an instruction on that theory. “In such all-or-nothing situations, ‘[wjhere one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.’ ” Breakiron v. Horn, 642 F.3d 126, 188 (3rd Cir.2011), quoting Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The record shows that McNeal’s counsel effectively conceded trespass but then failed to request a trespass instruction. Under these particular circumstances, the record does not clearly refute McNeal’s claim that counsel lacked an objectively reasonable strategic reason for doing so.

V. Prejudice

Having ■ determined that McNeal pleaded facts supporting a finding that counsel’s performance was deficient, the dispositive issue is whether McNeal was prejudiced by counsel’s failure to request the instruction. The state argues that, as a matter of law, McNeal cannot establish prejudice because the jury found beyond a reasonable doubt that he committed a burglary by unlawfully entering the apartment with the intent to commit a crime. According to the state, the fact that the jury found McNeal guilty of burglary necessarily forecloses the possibility that the jury instead would have found him guilty of the lesser-included offense of trespassing.

There is Missouri case law supporting the state’s argument. In Hendrix, the defendant was convicted of first-degree assault and armed criminal action. 369 S.W.3d at 96. In his post-conviction motion, he asserted that counsel was ineffective for failing to request an instruction on the lesser-included offenses of second-degree assault and third-degree assault. Id. at 99. The motion court held an evidentia-ry hearing and denied the claim. The court of appeals affirmed the judgment, holding that the movant could not establish prejudice because “ ‘[i]n making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on the grounds of evidentiary insufficiency, that the .... jury acted according to law.’ ” Id. at 100, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The court concluded that, “under the Strickland decision, we must find that the jury followed the law in reaching its decision to find Hendrix guilty of assault in the first degree. Thus, no prejudice can be established.” Id. at. 100.

The assumption underlying the state’s argument here and the holding in Hendrix is that it is illogical to conclude that the jury’s deliberative process would be impacted in any way if a lesser-included offense instruction were provided. This assumption is incorrect.

A defendant is entitled to a jury instruction on a lesser-included offense when the evidence, viewed in the light most favorable to the defendant, establishes a basis for that instruction. State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009). An instruction on a lesser-included offense is required when the evidence provides a basis for both acquittal of the greater offense and conviction of the lesser-included offense. Id. Therefore, if the trial court declines to submit a lesser-included offense that is supported by the evidence in the case, Missouri law provides that this constitutes reversible error. See State v. Williams, 313 S.W.3d 656,- 660 (Mo. banc 2010) (reversing a conviction for second-degree robbéry because the “trial court erred in not submitting the [lesser-included] stealing instruction to the jury.”). The fact that the failure to submit a lesser-included offense instruction constitutes reversible error is significant because appellate review of preserved error is “for prejudice, not mere error, and [it] will reverse only if the error is so prejudicial that it deprived the defendant of a fair trial.” Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002).

Although Johnson, Williams and similar cases involve direct appeals and not claims of ineffective assistance of counsel, the underlying rationale is that the failure to provide the jury with the option of a lesser-included offense deprives the defendant of a fair trial, even if the jury ultimately convicts the defendant of the greater offense. Without a trespass instruction, the jury was left with only two choices: conviction of burglary or acquittal. When “one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Breakiron at 126, quoting Beck, 447 U.S. at 634, 100 S.Ct. 2382. Even though juries are obligated “as a theoretical matter” to acquit a defendant if they do not find every element of the offense beyond a reasonable doubt, there is a “substantial risk that the jury’s practice will diverge from theory” when it is not presented with the option of convicting of a lesser offense instead of acquittal. Id., quoting Keeble v. United States,' 412 U.S. 205, 213, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). Therefore, under the facts of this case, the jury’s decision to convict on a greater offense does not foreclose all possibility that the jury would have convicted the defendant of the lesser offense. The jury’s decision may make it difficult for a post-conviction movant to prove prejudice, but it does not necessarily preclude a finding of prejudice as a matter of law such that a movant, like McNeal, never can obtain an evidentiary hearing.

The foregoing analysis is consistent with Patterson v. State, 110 S.W.3d 896 (Mo.App.2003), in which the court recognized that counsel can be ineffective for failing to request the instructional options supported by the evidence. In Patterson, a defendant convicted of second-degree robbery argued that his trial counsel was ineffective for failing to properly request an instruction for the lesser-included offense of stealing. Id. at 903. The court concluded that the evidence “was certainly sufficient” to support the conviction for robbery in the second-degree,. “[y]et, the record in this case also would have allowed a juror to reasonably find” for a lesser-included offense not offered. Id. at 905. The court reversed the conviction and sentence and remanded for a new trial because the evidence of guilt was not overwhelming and “there is a reasonable probability that the results of the proceedings would have been different if trial counsel had submitted a properly drafted lesser-included offense instruction.” Id. at 906-907.

Patterson is distinguishable from McNeal’s case because defense counsel in Patterson attempted to submit a lesser-included offense instruction. However, this distinction is relevant to the performance aspect óf the Strickland analysis and not the prejudice aspect'. With respect to prejudice, Patterson clearly holds that, although the defendant was convicted of the greater offense, the defendant still was prejudiced by counsel’s failure to request an instruction on the lesser-included offense. Similarly, McNeal has alleged facts, not clearly refuted by the record, showing he was prejudiced by counsel’s failure to submit a lesser-included offense instruction. McNeal is entitled to an evi-dentiary hearing on his claims.

The judgment is reversed, and the case is remanded.

RUSSELL, C.J., BRECKENRIDGE and STITH, JJ., and SHEFFIELD, Sp.J., concur; WILSON, J., dissents in separate opinion filed; FISCHER, J., concurs in opinion of WILSON, J. DRAPER, J., not participating.

1 . All statutory references are to RSMo 2000.

2 . The issue in this case is simply whether, in this particular case, McNeal's claims are clearly refuted by the record. This opinion holds only that McNeal’s clams are not clearly refuted by the record and, therefore, that he is entitled to an evidentiary hearing to ascertain the ultimate merits of his claims.

3 . This fact, plus the lack of an evidentiary hearing in this case, distinguishes Love v. State, 670 S.W.2d 499 (Mo. banc 1984). In Love, the movant was convicted of two counts of second-degree murder and alleged that counsel was ineffective for failing to request a lesser-included offense instruction on manslaughter. Id. at 500-501. At the evidentiary hearing on the movant’s claim of ineffective assistance, counsel testified that a lesser-included offense instruction would have been inconsistent with the movant's testimony that he was totally innocent of the killings. Id. at 501. Given that McNeal effectively admitted that he committed a trespass, there would be no inconsistency between the instructions and the movant’s testimony as was the case in Love.