607 S.W.2d 209 | Mo. Ct. App. | 1980
Movant was convicted of assault with intent to kill with malice and first degree murder. His convictions were upheld in State v. Collins, 520 S.W.2d 155 (Mo.App.1975).
A subsequent Rule 27.26 motion alleging ineffective assistance of counsel by reason of failing to investigate and interview certain witnesses allegedly supporting mov-ant’s claim of mistaken identification was denied by the trial court without evidentia-ry hearing. This latter action was reversed and the cause remanded for hearing in Collins v. State, 564 S.W.2d 936 (Mo.App.1978). On remand and after full hearing by the trial court, movant’s 27.26 motion was denied. This appeal has followed and we affirm.
The gravamen of movant's motion is that on the date of the assault and murder his face was so swollen as to be unrecognizable. Hence, he contends, he could not have been identified by the state’s identification witness who was a victim of the assault and was acquainted with him through previous personal social encounters. At the hearing three witnesses testified that on the date the offense occurred mov-ant’s face was swollen. They also related that movant’s trial attorney had not contacted them prior to trial. However, it is significant that none of the witnesses found movant’s face to be so swollen as to render him unrecognizable. Thus, movant was not deprived of a defense by the failure to call the witnesses, and it is his burden to establish that their evidence would offer a legitimate defense. Jones v. State, 600 S.W.2d 189, 191 (Mo.App.1980); Charles v. State, 570 S.W.2d 700, 702 (Mo.App.1978).
Furthermore, the trial court found, after hearing all the evidence, including that of movant’s trial attorney, that the trial attorney had made an extensive investigation to locate witnesses. Inconsistencies between movant’s 27.26 witnesses and his trial attorney were resolved in favor of the latter with the finding that his counsel’s assistance had not deprived him of his constitutional right to a fair trial. Williams v. State, 566 S.W.2d 241, 242 (Mo.App.1978).
Judgment affirmed.
. The holding of Seales v. State, 580 S.W.2d 733 (Mo. banc 1979), adopting the standard for effective assistance of counsel set forth by the United States Court of Appeals for the Eighth Circuit is prospective only. Id. at 737. Seales was reaffirmed in State v. Rone, 603 S.W.2d 575 (Mo. banc 1980).