McNeal v. State, 2013 Mo. LEXIS 295

Background

McNeal entered an unlocked apartment (510) expecting to find an acquaintance, discovered it vacant, then took a drill; he admitted the taking but denied entering with intent to steal.
Charged with second-degree burglary and stealing; jury asked during deliberations whether intent could form after opening the door; jury convicted on both counts; convictions affirmed on direct appeal.
McNeal filed a Rule 29.15 post-conviction motion alleging trial counsel was ineffective for failing to request a trespass (lesser-included) instruction.
Motion court denied relief without an evidentiary hearing, reasoning counsel may have had strategy and citing State v. Hinsa to conclude trespass was not supported.
Missouri Supreme Court majority reversed and remanded for an evidentiary hearing, holding McNeal pleaded facts not clearly refuted showing counsel’s omission might not be reasonable and that prejudice is not foreclosed simply because the jury convicted of the greater offense.
A dissent argued no prejudice as a matter of law because the jury convicted of burglary (presumed to follow law), defended counsel’s strategic choice, and would affirm denial of an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to request a trespass (lesser-included) instruction was deficient performance	McNeal: counsel had no reasonable strategy for omitting the trespass instruction; evidence supported it	State/motion court: counsel may have had a reasonable strategy; Hinsa shows purpose was unambiguous	Majority: Not clearly refuted by record; evidence created ambiguity about intent so deficiency not resolved without hearing
Whether McNeal was prejudiced by omission (Strickland prejudice)	McNeal: reasonable probability jury would have convicted of trespass instead of burglary if instructed	State: jury convicted of burglary, so prejudice cannot be shown as a matter of law; jury presumed to follow law	Majority: conviction of greater offense does not conclusively preclude prejudice; remand for hearing to determine prejudice
Whether failure to request instruction is reversible error or per se prejudicial in post-conviction context	McNeal: failure deprived him of fair trial option and can be prejudicial post-conviction	State: reversible-error presumptions on direct appeal don’t control Rule 29.15; movant bears burden to prove prejudice	Majority: direct-appeal doctrine informs prejudice analysis but does not bar post-conviction relief; evidentiary hearing required
Whether Hinsa controls entitlement to trespass instruction here	State/motion court: Hinsa indicates purpose for entry was unambiguous (intent to steal), so trespass not available	McNeal: Hinsa is factually distinguishable (locked house, nighttime, ransacking)	Majority: Hinsa is distinguishable; evidence here supports differing conclusions so trespass instruction could be warranted

Key Cases Cited

State v. Hinsa, 976 S.W.2d 69 (Mo. Ct. App. 1998) (discussed when entry facts showed clear intent to commit crime on entry)
State v. Yacub, 976 S.W.2d 452 (Mo. banc 1998) (trespass is lesser-included of burglary)
State v. Avery, 120 S.W.3d 196 (Mo. banc 2003) (instruction required when evidence supports defendant’s theory)
State v. Pond, 131 S.W.3d 792 (Mo. banc 2004) (judge must instruct on each theory supported by evidence)
State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009) (lesser-included instruction required when evidence supports acquittal of greater and conviction of lesser)
State v. Williams, 313 S.W.3d 656 (Mo. banc 2010) (failure to submit supported lesser-included instruction is reversible error on direct appeal)
Hendrix v. State, 369 S.W.3d 93 (Mo. Ct. App. 2012) (post-conviction denial where jury presumed to follow law; court viewed conviction of greater as foreclosing prejudice argument)
Patterson v. State, 110 S.W.3d 896 (Mo. Ct. App. 2003) (counsel ineffective for failing properly to obtain lesser-included instruction where record supported prejudice)
Love v. State, 670 S.W.2d 499 (Mo. banc 1984) (post-conviction context: objective reasonableness of strategic choice to omit lesser instruction)
Strickland v. Washington, 466 U.S. 668 (Sup. Ct. 1984) (two-prong test: deficient performance and prejudice)
Beck v. Alabama, 447 U.S. 625 (Sup. Ct. 1980) (risk jury will convict of greater offense absent option for lesser)
Breakiron v. Horn, 642 F.3d 126 (3d Cir. 2011) (discusses jury tendency in all-or-nothing situations)