603 S.W.2d 16 | Mo. Ct. App. | 1980
Movant was convicted by a jury of robbery in the first degree by means of a dangerous and deadly weapon. His conviction was affirmed on appeal in State v. Harris, 571 S.W.2d 443 (Mo.App.1978). Movant then filed this Rule 27.26 motion in which he challenged the effectiveness of his trial counsel. He was accorded an eviden-tiary hearing. The court below overruled the motion. Movant appeals.
We must affirm the ruling of the Rule 27.26 judge unless it appears his findings, conclusions, or judgment are clearly erroneous. King v. State, 592 S.W.2d 262, 263 (Mo.App.1979). In order to prove ineffective assistance of counsel, it was necessary for movant to show: (1) his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and (2) movant was prejudiced by this failure. Seales v. State, 580 S.W.2d 733, 736-37 (Mo. banc 1979).
Movant contends on appeal and testified at the evidentiary hearing that his trial counsel did not permit him to testify in his own behalf. Trial counsel gave contrary testimony on this issue. Credibility is peculiarly within the province of the trial court. Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971). This point has no merit.
Finally, movant complains of trial counsel’s failure to call a witness able to testify in movant’s favor on a damaging piece of physical evidence. As we noted above, trial counsel’s testimony at the Rule 27.26 hearing was that movant supplied him with no witnesses. Failure to call this witness cannot be attributed to counsel’s ineffectiveness. The court below was not clearly erroneous in finding counsel adequately represented movant. McCoy v. State, 574 S.W.2d 11, 12 (Mo.App.1978); Jones v. State, supra.
The judgment is, affirmed.