lesser included instruction in Missouri

2017The Court’s analysis, much like the Court’s recent decision in State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014), focused upon the decision whether to submit a lesser-included instruction.

2014The principal opinion here, and in the companion case, State v. Jackson, 433 S.W.3d 390 , 2014 WL 2861550 (Mo. banc 2014) (No. SC93108, decided June 24, 2014), asserts that from this point henceforth, the trial court no longer will determine whether there is sufficient evidence presented from which a lesser included instruction may be given, and the trial court must always instruct on any lesser included instruction.

2014Section 569.020, RSMo 2000 (emphasis ours). 4 “When there is no evidence indicating that the robbery was committed by some means other than the use of a deadly weapon or dangerous instrument, a lesser- included instruction is not required.” State v. Hand, 305 S.W.3d 476, 481 (Mo. App. S.D. 2010); see also State v. Eoff, 193 S.W.3d 366, 373-74 (Mo. App. S.D. 2006) and State v. Williams, 857 S.W.2d 530, 532-33 (Mo. App. S.D. 1993).

2014“When there is no evidence indicating that the robbery was committed by some means other than the use of a deadly weapon or dangerous instrument, a lesser-included instruction is not required.” State v. Hand, 305 S.W.3d 476, 481 (Mo. App.S.D.2010); see also State v. Eoff, 193 S.W.3d 366, 373-74 (Mo.App.S.D.2006) and State v. Williams, 857 S.W.2d 530, 532-33 (Mo.App.S.D.1993).

2022Prejudice means that, had the lesser-included instruction been given, "there is a reasonable probability that the outcome of the trial would have been different[.]" Id. (quoting Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)).

2022Although "doubt as to whether to instruct on the lesser-included offense is resolved in favor of giving the lesser-included instruction," id., it can also be an objectively reasonable strategy not to submit an available lesser-included instruction, especially when 7 the attorney concludes that it is in the best interest of his client "to deny the jury the opportunity to compromise on some middle ground" between the greater offense and acquittal.

2015S.D.1996)). 7 Prine has asserted in this Court that his “counsel had no way of knowing that the Missouri Supreme Court would change the rules as to when a trial court is required to give a lesser-included instruction.” We consider ourselves bound by our supreme court’s view otherwise — that Jackson reiterates what our supreme court has held in cases dating back to State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), followed by State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004), and again in State v. Williams, 313 S.W.3d 656 (Mo. banc 2010).

2015S.D. 1996)).7 Prine has asserted in this Court that his “counsel had no way of knowing that the Missouri Supreme Court would change the rules as to when a trial court is required to give a lesser-included instruction.” We consider ourselves bound by our supreme court’s view otherwise—that Jackson reiterates what our supreme court has held in cases dating back to State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), followed by State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004), and again in State v. Williams, 313 S.W.3d 656 (Mo. banc 2010).

2016“When the failure to request a lesser-included instruction is a matter of strategy, the court should not second guess the [defense].” Id.

2003“When the failure to request a lesser-included instruction is a matter of strategy, the court should not second guess the defendant’s counsel.” State v. Dexter, 954 S.W.2d 332, 344 (Mo. banc 1997).

2023Trial counsel is not ineffective for failing to request a lesser-included instruction when to request it would be inconsistent with the defense presented at trial, as “[c]ounsel will not be deemed ineffective ‘for seeking to employ the best defense for [his or her] client by not offering the jury a middle ground for conviction.’” Jones, 514 S.W.3d at 82 (quoting Jackson v. State, 205 S.W.3d 282, 286 (Mo. App. E.D. 2006)).

2007Jackson v. State, 205 S.W.3d 282, 285 (Mo.App.2006).

2022Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984).

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.

2020Rather, it is well-established that “[i]f 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).

2020Rather, it is well-established that “[i]f 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).

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See, e.g., Commonwealth v. Porro, 458 Mass. 526 , 939 N.E.2d 1157, 1167 (2010) ("Where there is no evidence to justify a lesser included instruction ... we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D.2005); People v. Van Norstrand, 85 N.Y.2d 131 , 623 N.Y.S.2d 767 , 647 N.E.2d 1275, 1278 (1995) ("Our inquiry is ... whether, under any reasonable view of the evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one.

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See also State v. Wall, 212 Ariz. 1 , 126 P.3d 148, 151 (2006); State v. Tomlin, 266 Conn. 608 , 835 A.2d 12, 27 (2003); State v. Dahlin, 695 N.W.2d 588, 595-97 (Minn.2005); State v. Brent, 137 N.J. 107 , 644 A.2d 583, 588 (1994); State v. Tamburano, 201 Neb. 703 , 271 N.W.2d 472, 475 (1978); Bignallv.

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See also State v. Wall, 212 Ariz. 1 , 126 P.3d 148, 151 (2006); State v. Tomlin, 266 Conn. 608 , 835 A.2d 12, 27 (2003); State v. Dahlin, 695 N.W.2d 588, 595-97 (Minn.2005); State v. Brent, 137 N.J. 107 , 644 A.2d 583, 588 (1994); State v. Tamburano, 201 Neb. 703 , 271 N.W.2d 472, 475 (1978); Bignallv.

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See, e.g., Commonwealth v. Porro, 458 Mass. 526 , 939 N.E.2d 1157, 1167 (2010) ("Where there is no evidence to justify a lesser included instruction ... we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D.2005); People v. Van Norstrand, 85 N.Y.2d 131 , 623 N.Y.S.2d 767 , 647 N.E.2d 1275, 1278 (1995) ("Our inquiry is ... whether, under any reasonable view of the evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one.

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See, e.g., Commonwealth v. Porro, 458 Mass. 526 , 939 N.E.2d 1157, 1167 (2010) ("Where there is no evidence to justify a lesser included instruction ... we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D.2005); People v. Van Norstrand, 85 N.Y.2d 131 , 623 N.Y.S.2d 767 , 647 N.E.2d 1275, 1278 (1995) ("Our inquiry is ... whether, under any reasonable view of the evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one.

2014See Keeble, 412 U.S. at 208 .

2014See Keeble, 412 U.S. at 208 , 93 S.Ct. 1993 .

2014Section 569.020, RSMo 2000 (emphasis ours). 4 “When there is no evidence indicating that the robbery was committed by some means other than the use of a deadly weapon or dangerous instrument, a lesser- included instruction is not required.” State v. Hand, 305 S.W.3d 476, 481 (Mo. App. S.D. 2010); see also State v. Eoff, 193 S.W.3d 366, 373-74 (Mo. App. S.D. 2006) and State v. Williams, 857 S.W.2d 530, 532-33 (Mo. App. S.D. 1993).

2014“When there is no evidence indicating that the robbery was committed by some means other than the use of a deadly weapon or dangerous instrument, a lesser-included instruction is not required.” State v. Hand, 305 S.W.3d 476, 481 (Mo. App.S.D.2010); see also State v. Eoff, 193 S.W.3d 366, 373-74 (Mo.App.S.D.2006) and State v. Williams, 857 S.W.2d 530, 532-33 (Mo.App.S.D.1993).

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See also State v. Wall, 212 Ariz. 1 , 126 P.3d 148, 151 (2006); State v. Tomlin, 266 Conn. 608 , 835 A.2d 12, 27 (2003); State v. Dahlin, 695 N.W.2d 588, 595-97 (Minn.2005); State v. Brent, 137 N.J. 107 , 644 A.2d 583, 588 (1994); State v. Tamburano, 201 Neb. 703 , 271 N.W.2d 472, 475 (1978); Bignallv.

2014Section 569.020, RSMo 2000 (emphasis ours). 4 “When there is no evidence indicating that the robbery was committed by some means other than the use of a deadly weapon or dangerous instrument, a lesser- included instruction is not required.” State v. Hand, 305 S.W.3d 476, 481 (Mo. App. S.D. 2010); see also State v. Eoff, 193 S.W.3d 366, 373-74 (Mo. App. S.D. 2006) and State v. Williams, 857 S.W.2d 530, 532-33 (Mo. App. S.D. 1993).

2014“When there is no evidence indicating that the robbery was committed by some means other than the use of a deadly weapon or dangerous instrument, a lesser-included instruction is not required.” State v. Hand, 305 S.W.3d 476, 481 (Mo. App.S.D.2010); see also State v. Eoff, 193 S.W.3d 366, 373-74 (Mo.App.S.D.2006) and State v. Williams, 857 S.W.2d 530, 532-33 (Mo.App.S.D.1993).

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See also State v. Wall, 212 Ariz. 1 , 126 P.3d 148, 151 (2006); State v. Tomlin, 266 Conn. 608 , 835 A.2d 12, 27 (2003); State v. Dahlin, 695 N.W.2d 588, 595-97 (Minn.2005); State v. Brent, 137 N.J. 107 , 644 A.2d 583, 588 (1994); State v. Tamburano, 201 Neb. 703 , 271 N.W.2d 472, 475 (1978); Bignallv.

2014See, e.g., State v. Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has shown, all jurisdictions except Iowa and Florida, which are discussed below, require some support in the evidence for a court to be obligated to instruct down. 8 6 See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there is no evidence to justify a lesser included instruction … we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647

2014See, e.g., Commonwealth v. Porro, 458 Mass. 526 , 939 N.E.2d 1157, 1167 (2010) ("Where there is no evidence to justify a lesser included instruction ... we have concluded that it is reversible error to allow the jury to convict the defendant of the lesser charge.”); State v. Keller, 695 N.W.2d 703, 716 (N.D.2005); People v. Van Norstrand, 85 N.Y.2d 131 , 623 N.Y.S.2d 767 , 647 N.E.2d 1275, 1278 (1995) ("Our inquiry is ... whether, under any reasonable view of the evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one.

2011Indeed, “if a lesser-included instruction is mandated, the [circuit] court is obligated to give a correct one and that while the failure of the defendant to provide a correct instruction for that purpose ... waives appellate review ..., it does not waive plain error review, under Rule 30.20.” State v. Beck, 167 S.W.3d 767, 777 (Mo.App.2005). *142 Rule 30.20 authorizes this Court to review, in its discretion, “plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted there from.” Our Supreme Court has established a threshol

2008However, as the Western District of this court explained in State v. Beck, 167 S.W.3d 767, 777 (Mo.App.2005), “if a lesser-included instruction is mandated, the trial court is obligated to give a correct one and that while the failure of the defendant to provide a correct instruction for that purpose, as required by Rule 28.02(b), waives appellate review, under Rule 28.03, it does not waive plain error review, under Rule 30.20.” The question becomes whether plain error review is warranted.

2015S.D.1996)). 7 Prine has asserted in this Court that his “counsel had no way of knowing that the Missouri Supreme Court would change the rules as to when a trial court is required to give a lesser-included instruction.” We consider ourselves bound by our supreme court’s view otherwise — that Jackson reiterates what our supreme court has held in cases dating back to State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), followed by State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004), and again in State v. Williams, 313 S.W.3d 656 (Mo. banc 2010).

2015S.D. 1996)).7 Prine has asserted in this Court that his “counsel had no way of knowing that the Missouri Supreme Court would change the rules as to when a trial court is required to give a lesser-included instruction.” We consider ourselves bound by our supreme court’s view otherwise—that Jackson reiterates what our supreme court has held in cases dating back to State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), followed by State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004), and again in State v. Williams, 313 S.W.3d 656 (Mo. banc 2010).

2023Trial counsel is not ineffective for failing to request a lesser-included instruction when to request it would be inconsistent with the defense presented at trial, as “[c]ounsel will not be deemed ineffective ‘for seeking to employ the best defense for [his or her] client by not offering the jury a middle ground for conviction.’” Jones, 514 S.W.3d at 82 (quoting Jackson v. State, 205 S.W.3d 282, 286 (Mo. App. E.D. 2006)).

2018"Counsel has no duty to request an instruction that would undermine the defense theory presented at trial." Jones , 514 S.W.3d at 80-81 (finding counsel's all-or-nothing strategy reasonable); see also McNeal v. State , 500 S.W.3d 841 , 845 (Mo. banc 2016).

2018"Counsel has no duty to request an instruction that would undermine the defense theory presented at trial." Jones , 514 S.W.3d at 80-81 (finding counsel's all-or-nothing strategy reasonable); see also McNeal v. State , 500 S.W.3d 841 , 845 (Mo. banc 2016).

2017McNeal II, 500 S.W.3d at 844 .

2015S.D.1996)). 7 Prine has asserted in this Court that his “counsel had no way of knowing that the Missouri Supreme Court would change the rules as to when a trial court is required to give a lesser-included instruction.” We consider ourselves bound by our supreme court’s view otherwise — that Jackson reiterates what our supreme court has held in cases dating back to State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), followed by State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004), and again in State v. Williams, 313 S.W.3d 656 (Mo. banc 2010).

2015S.D. 1996)).7 Prine has asserted in this Court that his “counsel had no way of knowing that the Missouri Supreme Court would change the rules as to when a trial court is required to give a lesser-included instruction.” We consider ourselves bound by our supreme court’s view otherwise—that Jackson reiterates what our supreme court has held in cases dating back to State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), followed by State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004), and again in State v. Williams, 313 S.W.3d 656 (Mo. banc 2010).

2014Section 556.046.1(1) also closely tracks the language of the lesser included defense definition developed by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

2014Section 556.046.1(1) also closely tracks the language of the lesser included defense definition developed by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

2024See Stewart v. State, 387 S.W.3d 424, 429-30 (Mo. App. S.D. 2012) (holding it was the movant's burden to establish that the jury would have found him not guilty of the charged crime, but would have convicted him of the lesser-included offense). 13 Point IV denied.

2022Prejudice means that, had the lesser-included instruction been given, "there is a reasonable probability that the outcome of the trial would have been different[.]" Id. (quoting Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)).