McNeal v. State

• Decision Date: 12 November 2013
• Docket Number: No. SC 92615.,SC 92615.
• Parties: David A. McNEAL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

412 S.W.3d 886

David A. McNEAL, Appellant,

v.STATE of Missouri, Respondent.

No. SC 92615.

Supreme Court of Missouri, En Banc.

Nov. 12, 2013.

Andrew E. Zleit, Public Defender's Office, St. Louis, for Appellant.

Shaun J. Mackelprang, Attorney General's Office, Jefferson City, for Respondent.

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 opening/touching 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 allegedthat 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.3d 170, 175 (Mo. banc 2009).

III. Ineffective Assistance of Counsel

McNeal is entitled to an evidentiary hearing only if: (1) he pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) 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, 853 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 “[e]verything 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...