Movant appeals the denial of his Rule 27.26 motion (repealed January 1, 1988). Movant sought to vacate his convictions for capital murder, § 565.001, RSMo 1978 (repealed October 1,1984), and armed criminal action, § 571.015, RSMo 1978, for which Movant was sentenced to consecutive terms of life imprisonment without possibility of parole for fifty years and twenty-five years’ imprisonment respectively. We affirm.
Movant’s convictions were affirmed on direct appeal.
State v. Burton,
In his first point Movant alleges his lawyer was ineffective for not interviewing four potential witnesses: Elijah Horne, Jennifer Shaw, Darryl Miller and Kenneth Bonner. Our review is governed by
Day v. State,
Further there is no evidence that Movant’s lawyer was aware of the existence of any of these witnesses except Elijah Horne. The motion court found that Movant had presented no evidence that his attorney was aware prior to trial that Horne possessed any useful information. Counsel cannot be held ineffective for fail
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ing to call witnesses about whom he or she has had little or no notice.
Id.
at [8]. The other three above-named witnesses were not mentioned as potential witnesses until the instant appeal. Accordingly, this court cannot consider the issue.
Moton v. State,
Additionally, there are no page citations in the argument portion of Movant’s brief relating to this point. Movant does make reference to affidavits attached to the brief, but evidentiary deficiencies cannot be remedied by exhibits or appendices unilaterally attached to Movant’s brief.
State v. Wolford,
In his second point, Movant claims prejudice in that his lawyer did not object to and preserve for appeal the “identification testimony” of Nina Whitfield. He claims that had his lawyer preserved the issue, this appellate court which decided Movant’s direct appeal could have assessed Ms. Whitfield’s “identification” in light of
Neil v. Biggers,
In his third point, Movant asserts “the court erred in overruling appellant’s motion to vacate sentence by concluding that failure to object cannot be ineffective assistance of counsel.” The trial court did not so conclude. It stated the standard is quite stringent. It correctly stated that as a general rule the failure to object to certain evidence does not rise to the level of ineffective assistance of counsel unless movant has suffered a substantial deprivation of the right to a fair trial.
Williams v. State,
In his fourth point relied on, Movant asserts his post-conviction attorney was “ineffective” for not presenting certain witnesses at the Rule 27.26 evidentiary hearing. Our Supreme Court has expressly and repeatedly held that “a post-conviction proceeding cannot be used to challenge the effectiveness of counsel in the post-conviction proceeding, but is limited to the validity of movant’s conviction and sentence.”
Sloan v. State,
Finally, Movant claims the motion court erred in not issuing findings on the claims contained in his “supplemental motion,” thus violating Rule 27.26(i). Defendant’s allegation in the supplemental motion was that his lawyer was ineffective for not preserving on appeal the issue of whether Defendant deliberated. Defendant’s claim is at odds with the record. In paragraph 20 of its extensive findings, the motion court stated:
The court has reviewed ex gratia the allegations of the unverified amended motion and supplement and finds that they do not entitle movant to relief.
The trial court’s generalized finding would be sufficient to permit appellate review.
See Stewart v. State,
Judgment affirmed.
