David A. McNeal v. State of Missouri
2016 Mo. LEXIS 330
| Mo. | 2016Background
- McNeal entered apartment 510 (not on lease, no key) after knocking and, finding it empty, took a drill; charged with second-degree burglary (knowing unlawful entry with intent to commit a crime) and stealing.
- Defense at trial argued McNeal believed the occupant (Tracy) still lived there and impliedly consented to his entry; counsel told jury McNeal lacked intent to steal and did not know entry was unlawful.
- No trespass (lesser-included) instruction was requested at trial; jury convicted McNeal of burglary and stealing; sentenced to consecutive terms (10 years burglary, 6 months stealing).
- McNeal filed a Rule 29.15 post-conviction claim alleging ineffective assistance for failing to request a trespass instruction; this Court remanded for an evidentiary hearing (McNeal I).
- At the hearing, trial counsel testified the omission was strategic because a trespass instruction would have been inconsistent with the defense theory disputing the knowing-unlawful-entry element; McNeal testified he would have wanted the instruction.
- The circuit court denied relief; on appeal the Supreme Court of Missouri affirmed, holding counsel’s choice was objectively reasonable and not ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not requesting a lesser-included trespass instruction | McNeal: counsel failed to request trespass, depriving him of a jury option and was not a tactical choice | State: counsel reasonably declined because trespass instruction would contradict defense that entry was not unlawful | Counsel’s omission was objectively reasonable trial strategy; no ineffective assistance shown |
| Whether counsel actually conceded knowing unlawful entry at trial | McNeal: counsel conceded trespass during cross-exam, so an instruction was consistent | State: counsel did not concede; he preserved a defense disputing knowing unlawful entry (implied consent) | Court finds counsel did not concede and maintained theory disputing unlawful entry |
| Whether counsel’s lack of a “conscious decision” undermines reasonableness | McNeal: counsel’s testimony that it wasn’t a conscious decision shows lack of strategy | State: objective reasonableness controls, not whether decision was consciously articulated | Court: consciousness of decision immaterial; performance judged objectively and was reasonable |
| Whether failure to consult McNeal about the instruction warrants relief | McNeal: counsel didn’t discuss the trespass instruction with him | State: claim was not raised in Rule 29.15 motion and thus waived | Court: claim waived; not considered on appeal |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes ineffective assistance test: performance and prejudice)
- Love v. State, 670 S.W.2d 499 (Mo. banc 1984) (an objectively reasonable choice not to submit an available instruction is not ineffective assistance)
- McNeal v. State, 412 S.W.3d 886 (Mo. banc 2013) (remanded for evidentiary hearing on counsel performance)
- Taylor v. State, 382 S.W.3d 78 (Mo. banc 2012) (describes two-prong Strickland analysis)
- Anderson v. State, 196 S.W.3d 28 (Mo. banc 2006) (pursuing one reasonable strategy to exclusion of another is not ineffective assistance)