available instruction in Missouri

2025This testimony merely suggests that there was fear of potential robbery, but that fear was not due to an imminent or current robbery occurring. 14 Moreover, even if the evidence would have been sufficient to give the forcible felony self-defense instruction, “[a]n objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” McNeal v. State, 500 S.W.3d 841, 844 (Mo. banc 2016) (quoting Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984)).

2023“An objectively reasonable choice not to submit an available instruction does not constitute [IAC].” Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984). “‘It is a tactical decision usually based on the belief—often a reasonable one—that the jury may convict of the lesser offense, if submitted, rather than render a not guilty verdict on the higher offense if the lesser is not submitted.’” Neal v. State, 99 S.W.3d 571 , 576 (Mo.App.

2025This testimony merely suggests that there was fear of potential robbery, but that fear was not due to an imminent or current robbery occurring. 14 Moreover, even if the evidence would have been sufficient to give the forcible felony self-defense instruction, “[a]n objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” McNeal v. State, 500 S.W.3d 841, 844 (Mo. banc 2016) (quoting Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984)).

2024Furthermore, this court has recognized that trial counsel “makes an objectively reasonable choice not to submit an available instruction when the instruction would be inconsistent with the defense’s theory at trial.” McNeal, 500 S.W.3d at 844 (emphasis added).

2023S.D.2003) (quoting State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982), overruled on other grounds by State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997)).

2011S.D.2003) (quoting State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982), overruled on other grounds by State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997)).

2023S.D.2003) (quoting State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982), overruled on other grounds by State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997)).

2011S.D.2003) (quoting State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982), overruled on other grounds by State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997)).

2017“An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” Oplinger v. State, 350 S.W.3d 474, 477 (Mo. App. S.D. 2011).

2013The Missouri Supreme Court “has recognized that submission of the no-adverse inference instruction is optional.” Barnett v. State, 103 S.W.3d 765, 773 (Mo. banc 2003) (citing MAI-CR 3d 308.14, Notes on Use 2; and Knese v. State, 85 S.W.3d 628, 635 (Mo. banc 2002), as “holding that it is reasonable for counsel to forego requesting the instruction, believing that it highlights the fact that the defendant did not testify”). “ ‘An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.’ ” Oplinger v. State, 350 S.W.3d 474, 477 (Mo

2017The decision not to request a lesser-included offense instruction may be “a tactical decision usually based on the belief—often a reasonable one—that the jury may convict of the lesser offense, if submitted, rather than render a not guilty verdict on the higher offense if the lesser is not submitted.” Hendrix v. State, 369 S.W.3d 93, 100 (Mo. App. W.D. 2012).

2014“It is a tactical decision usually based on the belief — often a reasonable one — that the jury may convict of the lesser offense, if submitted, rather than render a not guilty verdict on the higher offense if the lesser is not submitted.” Hendrix v. State, 369 S.W.3d 93, 100 (Mo.App.W.D.2012)(internal quotes and citation omitted).

2011“An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” Id. (citing State v. Shurn, 866 S.W.2d 447, 469 (Mo. banc 1993); Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984)).

2006State v. Skurn, 866 S.W.2d 447, 469 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994); Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984); State v. Butler, 904 S.W.2d 68, 73 (Mo.App.1995).

1995Likewise, “[a]n objectively reasonable choice not to submit an available instruction does not constitute ineffective assis *205 tance of counsel.” Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984) (citing McClain v. State, 560 S.W.2d 894, 896 (Mo.App.1978)).

1984McClain v. State, 560 S.W.2d 894, 896 (Mo.App.1978).

2024See Pulaski, 428 S.W.3d at 734 (citing Lemay, 710 S.W.2d at 322 ); Martin, 104 S.W.3d at 788 .

2024See Pulaski, 428 S.W.3d at 734 (citing Lemay, 710 S.W.2d at 322 ); Martin, 104 S.W.3d at 788 .

2023“An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” Shockley v. State, 579 S.W.3d 881, 913 (Mo. banc 2016).

2021“The only available defenses to revival of a judgment are those concerning ‘[1] whether the judgment creditor initiated the proceeding within the prescribed time of ten years; [2] whether service, either personal or by publication, was obtained on the judgment debtor; [3] whether the judgment existed; and [4] whether the judgment was satisfied.’” Id. (quoting Elliott v. Cockrell, 943 S.W.2d 328, 330 (Mo. App. E.D. 1997) (reversing and remanding an order reviving judgment in a reduced amount because “there were no issues regarding the existence of the judgment, service of process, or initiation

2019Ga. 1978) (holding defendant’s plea counsel was ineffective when he failed to adequately inform and advise his client as to the advisability of utilizing an insanity defense when mental evaluation revealed probable issues with defendant and such defense was the only available defense); Commonwealth v. Santiago, 414 A.2d 1016, 1017-1018 (Pa. 1980) (holding guilty plea was improperly induced when defendant’s alleged intoxication could have negated the specific intent element of the robbery offense, and defense counsel erroneously advised the defendant that no defense based on intoxication was av

2019McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018).

2017Because defense of property is used to justify the use of physical force against another person, we question whether it is even an available defense to O'Malley’s disorderly conduct, as charged, "Justification based upon defense of property is limited in scope ‘to the use of physical force by a person to prevent stealing, property damage or tampering.'” State v. Moseley, 705 S.W.2d 613, 617 (Mo. App. E.D. 1986) (quoting § 563.041.1 comment).

2013“An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” Prince, 390 S.W.3d at 237 (citation omitted).

2013The Missouri Supreme Court “has recognized that submission of the no-adverse inference instruction is optional.” Barnett v. State, 103 S.W.3d 765, 773 (Mo. banc 2003) (citing MAI-CR 3d 308.14, Notes on Use 2; and Knese v. State, 85 S.W.3d 628, 635 (Mo. banc 2002), as “holding that it is reasonable for counsel to forego requesting the instruction, believing that it highlights the fact that the defendant did not testify”). “ ‘An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.’ ” Oplinger v. State, 350 S.W.3d 474, 477 (Mo

2013The Missouri Supreme Court “has recognized that submission of the no-adverse inference instruction is optional.” Barnett v. State, 103 S.W.3d 765, 773 (Mo. banc 2003) (citing MAI-CR 3d 308.14, Notes on Use 2; and Knese v. State, 85 S.W.3d 628, 635 (Mo. banc 2002), as “holding that it is reasonable for counsel to forego requesting the instruction, believing that it highlights the fact that the defendant did not testify”). “ ‘An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.’ ” Oplinger v. State, 350 S.W.3d 474, 477 (Mo

2012“The test is ‘whether a reasonably competent attorney would have performed differently under similar circumstances.’” Id. (quoting Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984)). “‘When the failure to request a lesser-included instruction is a matter of strategy, the court should not second guess the defendant’s counsel.’” Patterson v. State, 110 S.W.3d 896, 903 (Mo.App.

2007“An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” Young v. State, 761 S.W.2d 725, 727 (Mo.App.1988).

2006State v. Skurn, 866 S.W.2d 447, 469 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994); Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984); State v. Butler, 904 S.W.2d 68, 73 (Mo.App.1995).