lesser included offense instruction in Missouri

2025“The failure to give a different lesser included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser- included offense are given and the defendant is found guilty of the greater offense.” Redmond, 686 S.W.3d at 344 (quoting State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009) and State v. Glass, 136 S.W.3d 496, 515 (Mo. banc 2004)).

2024“The failure to give a different lesser included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-included offense are given and the defendant is found guilty of the greater offense.” State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009) (emphasis omitted) (citing State v. Glass, 136 S.W.3d 496, 515 (Mo. banc 2004)).

2025“The failure to give a different lesser included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser- included offense are given and the defendant is found guilty of the greater offense.” Redmond, 686 S.W.3d at 344 (quoting State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009) and State v. Glass, 136 S.W.3d 496, 515 (Mo. banc 2004)).

2024“The failure to give a different lesser included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-included offense are given and the defendant is found guilty of the greater offense.” State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009) (emphasis omitted) (citing State v. Glass, 136 S.W.3d 496, 515 (Mo. banc 2004)).

1997When a defendant requests a lesser included offense instruction, the trial court errs in not giving the instruction if there is a basis for both an acquittal of the higher offense and a conviction of the lesser included offense. § 556.046.2; State v. Olson, 636 S.W.2d 318, 322-23 (Mo. banc 1982).

1988While automatic submission of manslaughter is no longer required in murder prosecutions, State v. Merritt, 734 S.W.2d 926, 932 (Mo.App.1987), a trial court is obligated to submit a lesser included offense instruction if the evidence arguably shows lack of an essential element of the higher offense which would not only authorize acquittal of the higher but sustain a conviction of the lesser, State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982), and if such lesser included offense instruction is requested by one of the parties or the court. § 565.025.3, L.1983, S.B.

2012Point II — Ineffective Assistance of Trial Counsel “To establish a claim of ineffective assistance of counsel for failure to request a lesser included offense instruction, a movant must show that the evidence would have required submission of a lesser included offense instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that the movant was thereby prejudiced.” Jackson v. State, 205 S.W.3d 282, 285 (Mo.App.

2011In order to establish a claim of ineffective assistance of counsel for failure to submit a lesser-included-offense instruction, Movant must demonstrate that “the evidence would have required submission of a lesser[-]included[-]offense instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that ... [M]ov-ant was thereby prejudiced.” Jackson v. State, 205 S.W.3d 282, 285 (Mo.App.2006).

2025Only when “a party’s proffered instruction involving a nested or non- nested lesser included offense alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense” do these subsections collectively obligate a trial court to give a lesser-included offense instruction when “three circumstances are met: (1) the party timely requests it; (2) there is a [rational] basis in the evidence for acquitting the defendant of the greater charged offense; and (3) there is a [rational] basis in the evidence for convicting the defendant of the lesser[-]included offense[.]

2023The court shall be obligated to instruct the jury with respect to a particular included offense only if there is a basis in the evidence for acquitting the person of the immediately higher included offense and there is a basis in the evidence for convicting the person of that particular included offense. 9 The Missouri Supreme Court has held that these statutes required a circuit court to submit a lesser-included offense instruction only where a party timely requests an instruction: Collectively, sections 556.046.2 and 556.046.3, RSMo Supp. 2002, obligate a trial court to instruct the jury on

2024When the claim is that counsel was ineffective for failing to request a lesser-included offense instruction, the movant “must demonstrate the evidence would have required the trial court to submit the instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that prejudice resulted.” Watson, 520 S.W.3d at 435 (internal quotations omitted).

2024“Even whe[n] the evidence supports the submission of a lesser-included offense instruction, [the movant] must still overcome the [Strickland] presumption that counsel’s decision not to request the instruction was reasonable trial strategy.” Id. 10 I.

2023Under this caselaw, “‘[i]f a defendant does not specifically request a lesser included offense instruction, the defendant may not complain about the trial court's failure to give the instruction.’” State v. Leonard, 490 S.W.3d 730, 744 (Mo. App. W.D. 2016) (quoting State v. Fowler, 938 S.W.2d 894, 898 (Mo. 1997); footnote omitted). “‘Part of the rationale for this rule is that failing to request a lesser-included offense instruction is often trial strategy . . . .’” Id. (citation omitted).

2023Under this caselaw, “‘[i]f a defendant does not specifically request a lesser included offense instruction, the defendant may not complain about the trial court's failure to give the instruction.’” State v. Leonard, 490 S.W.3d 730, 744 (Mo. App. W.D. 2016) (quoting State v. Fowler, 938 S.W.2d 894, 898 (Mo. 1997); footnote omitted). “‘Part of the rationale for this rule is that failing to request a lesser-included offense instruction is often trial strategy . . . .’” Id. (citation omitted).

2023To prevail on a claim that counsel was ineffective for failing to request a lesser-included offense instruction, [a movant] must 8 demonstrate “the evidence would have required the trial court to submit the instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that prejudice resulted.” “Even where the evidence supports the submission of a lesser-included offense instruction, [the movant] must still overcome the presumption that counsel's decision not to request the instruction was reasonable trial strategy.” Watson v. State,

2021Watson v. State, 520 S.W.3d 423, 435 (Mo. banc 2017) ("To prevail on a claim that counsel was ineffective for failing to request a lesser-included offense instruction, [Wynes] must demonstrate 'the evidence would have required the trial court to submit the instruction had one been requested. . . .'" (quoting McCrady v. State, 461 S.W.3d 443, 448 (Mo. App. E.D. 2015))).

2003A trial court is only required to give a lesser-included offense instruction when the evidence supports acquitting the accused of the greater offense and convicting him of the lesser offense. § 556.046.2; State v. Hineman, 14 S.W.3d 924, 927 (Mo.banc 1999); State v. Mease, 842 S.W.2d 98 , 111 — 12[27] (Mo.banc 1992).

2001In State v. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999), the Missouri Supreme Court stated as follows: The trial court is not obligated to give a lesser-included offense instruction unless the evidence supports acquitting the defendant of the greater offense and convicting him of the lesser offense.

2014In State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), the state invoked Olson to support its argument that a lesser included offense instruction was not appropriate unless the defendant introduced affirmative evidence disputing the differential element.

2014In State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), the state invoked Olson to support its argument that a lesser included offense instruction was not appropriate unless the defendant introduced affirmative evidence disputing the differential element.

2015Based on the fact that the jury here was instructed on the lesser-included offense of voluntary manslaughter in addition to murder in the second degree, the State cites several cases for the proposition that "[t]he failure to give a different lesser-included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-included offense are given and the defendant is found guilty of the greater offense." See, e.g., State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009); State v. Glass, 136 S.W.3d 496, 515 (Mo. banc 2004); State v. Johnston, 957

2013Assuming, arguendo, that the evidence presented at Movant’s trial would have supported a claim that the trial court erred in rejecting Movant’s proffered instructions, 6 Movant cannot prevail because “[t]he failure to give a different lesser-included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-included offense are given and the defendant is found guilty of the greater offense.” Johnson, 284 S.W.3d at 575 (emphasis as stated in original); see also State v. Johnston, 957 S.W.2d 734, 751-52 (Mo. banc 1997) (where defendant was

2014Indeed, “due process requires that a lesser included offense instruction be given only when the 6 This Court reached the same conclusion on similar circumstances in State v. Mease, 842 S.W.2d 98, 112 (Mo. banc 1992).

2003A trial court is only required to give a lesser-included offense instruction when the evidence supports acquitting the accused of the greater offense and convicting him of the lesser offense. § 556.046.2; State v. Hineman, 14 S.W.3d 924, 927 (Mo.banc 1999); State v. Mease, 842 S.W.2d 98 , 111 — 12[27] (Mo.banc 1992).

2020Citing Oplinger v. State, 350 S.W.3d 474, 477 (Mo. App. S.D. 2011), Movant asserts that “trial counsel must make an informed decision whether to request a lesser- included offense instruction.” Movant argues that trial counsel here did not make an informed decision on whether to request lesser-included offenses.

2020Citing Oplinger v. State, 350 S.W.3d 474, 477 (Mo. App. S.D. 2011), Movant asserts that “trial counsel must make an informed decision whether to request a lesser- included offense instruction.” Movant argues that trial counsel here did not make an informed decision on whether to request lesser-included offenses.

2015The Missouri Supreme Court held: When a jury is “presented with instructions on murder in the first degree and murder in the second degree, [and] had the opportunity to find that [the defendant’s] actions were not deliberate” but nonetheless convicts of first degree murder, “no reasonable basis exists to suggest that the jury would have reduced the conviction had they been presented with” a different lesser-included offense instruction.- State v. Jones, 979 S.W.2d 171, 185 (Mo. banc 1998).

2007See also State v. Glass, 136 S.W.3d 496, 515 (Mo. banc 2004)(explaining that, “[w]hen a jury is ‘presented with instruc *288 tions on murder in the first degree and murder in the second degree, [and] had the opportunity to find that [the defendant’s] actions were not deliberate’ but nonetheless convicts of first degree murder, ‘no reasonable basis exists to suggest that the jury would have reduced the conviction had they been presented’ with a different lesser included offense instruction.”) (quoting State v. Jones, 979 S.W.2d 171, 185 (Mo. banc 1998)).

2025“Doubt as to whether to instruct on the lesser-included offense is resolved in favor of giving the lesser-included offense instruction.” McNeal v. State, 412 S.W.3d 886, 890 (Mo. banc 2013) (internal citation omitted).

2023McNeal observed “[t]he assumption underlying . . . 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.” Id. at 892 .

2013Applying this presumption of trial strategy from Strickland, Love holds that the only question presented when a defendant claims counsel was ineffective for failing to request a lesser-included offense instruction “is whether a reasonably competent attorney would have performed differently under similar circumstances.” Love, 670 S.W.2d at 502 .

2013Indeed, Love considers precisely the same claim that the majority opinion finds merits a hearing in this case (i.e., whether counsel’s decision not to request the lesser-included offense instruction was a strategy or mistake), and holds that it does not matter. “[I]t is not important whether counsel’s decision was simply a matter of strategy based upon a reasonable awareness of applicable law or whether it was the product of an uninformed notion that no alternative was available.” Id. 3 The majority opinion seeks to distinguish Love on the ground that an eviden-tiary hearing had been held befo

2020In order for a defendant to obtain a lesser-included-offense instruction, “‘the lesser crime must be included in the higher crime with which the accused is specifically charged, and . . . the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense.’” State v. Sanders, 522 S.W.3d 212, 217 (Mo. 2017) (quoting State v. Hibler, 5 S.W.3d 147, 150 (Mo. 1999)).

2020A defendant cannot “selectively alter or omit criminal conduct [alleged in the charging instrument] when requesting a lesser included offense instruction.” Id. at 218 .

2022Id. at 300 . 5 The motion court found, “As self-defense was not argued or given in this case and the trial strategy was for a less[er-]included offense, there was no basis for trial counsel to argue the notion of ‘imperfect self-defense’ to the jury.” Reed argues that the motion court’s conclusion that imperfect self-defense was unavailable because self-defense was not asserted is clearly erroneous and, therefore, should be reversed.

2014See, e.g., Pond, 131 S.W.3d at 794 (holding that the defendant was entitled to a lesser included offense when discrepancies in the victim’s statements to witnesses and her testimony at trial could have led a “reasonable jury [to] find the prior statements more believable”); Derenzy, 89 S.W.3d at 474 (“If a reasonable juror could draw inferences from the evidence presented that an essential element of the greater offense has not been established, the trial court should instruct down”); State v. Beeler, 12 S.W.3d 294, 300 (Mo. banc 2000) (“[W]here the facts are such that no rational factfinder c

2016“A defendant is permitted to adopt a trial strategy and to attempt to persuade the jury of it.” State v. Dexter, 954 S.W.2d 332, 344 (Mo. banc 1997).

2013Id.

2025Only when “a party’s proffered instruction involving a nested or non- nested lesser included offense alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense” do these subsections collectively obligate a trial court to give a lesser-included offense instruction when “three circumstances are met: (1) the party timely requests it; (2) there is a [rational] basis in the evidence for acquitting the defendant of the greater charged offense; and (3) there is a [rational] basis in the evidence for convicting the defendant of the lesser[-]included offense[.]

2025Only when “a party’s proffered instruction involving a nested or non- nested lesser included offense alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense” do these subsections collectively obligate a trial court to give a lesser-included offense instruction when “three circumstances are met: (1) the party timely requests it; (2) there is a [rational] basis in the evidence for acquitting the defendant of the greater charged offense; and (3) there is a [rational] basis in the evidence for convicting the defendant of the lesser[-]included offense[.]

2010The State contends there was no such basis because the jury would have been required to “disbelieve some of the evidence of the state, or decline to draw some or all of the permissible inferences.” This, the State claims, “does not entitle the defendant to an instruction otherwise unsupported by the evidence.” The State mistakenly relies on State v. Warrington, 884 S.W.2d 711, 717 (Mo.App.1994); State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App.1991); and State v. Pruett, 805 S.W.2d 724, 725-26 (Mo.App.1991), to support its argument that a defendant is not entitled to a lesser included offense in

1996State v. Warrington, 884 S.W.2d 711, 717 (Mo.App.1994).

2014Here, as in Pond, the State relies on pre-Santillan cases and argues that “a defendant is not entitled to a lesser included offense instruction merely because a jury might disbelieve some of the State’s evidence.” 131 S.W.3d at 794 .

2014Here, as in Pond , the State relies on pre-Santillan cases and argues that “a defendant is not entitled to a lesser included offense instruction merely because a jury might disbelieve some of the State’s evidence.” 131 S.W.3d at 794 .

2016Id. , I. believe that there is no conflict in Derenzy between our general principles of instructional review and Rule 28.

2003Even though the defendant submitted an erroneous instruction, the court held “[t]he trial court committed plain error by failing to provide [the lesser included offense instruction] to the jury.” Id. at 475 .

2007“An instruction on a lesser offense is not proper unless it is impossible to commit the greater without committing the lesser.” Barnard, 972 S.W.2d at 465 .

2001Section 556.046.2; State v. Mease, 842 S.W.2d 98, 111-12 (Mo. banc 1992), cert. denied, 508 U.S. 918 , 113 S.Ct. 2363 , 124 L.Ed.2d 269 (1993); State v. Barnard, 972 S.W.2d 462, 466 (Mo.App.1998).

2014Rather, Williams reaffirms that a party’s entitlement to a lesser included offense instruction under 556.046 is determined by whether “a reasonable juror could draw inferences from the evidence presented that an 17 essential element of the greater offense has not been established.” 313 S.W.3d at 660 (emphasis added).

2014To the contrary, it reaffirms the well-established rule that a party’s entitlement to a lesser included offense instruction under section 556.046.2 is determined by whether “a reasonable juror could draw inferences from the evidence presented that an essential element of the greater offense has not been established.” 313 S.W.3d at 660 (emphasis added).

2010The State contends there was no such basis because the jury would have been required to “disbelieve some of the evidence of the state, or decline to draw some or all of the permissible inferences.” This, the State claims, “does not entitle the defendant to an instruction otherwise unsupported by the evidence.” The State mistakenly relies on State v. Warrington, 884 S.W.2d 711, 717 (Mo.App.1994); State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App.1991); and State v. Pruett, 805 S.W.2d 724, 725-26 (Mo.App.1991), to support its argument that a defendant is not entitled to a lesser included offense in

1996Further, this court noted that the defendant was not entitled to a lesser included offense instruction “merely because the jury might disbelieve some of the state’s evidence.” Id.