592 S.W.2d 262 | Mo. Ct. App. | 1979
Movant was convicted by a jury of robbery in the first degree. His conviction was affirmed on appeal, State v. King, 539 S.W.2d 744 (Mo.App.1976).
Subsequently, Movant filed a Rule 27.26 motion in which he challenged the effectiveness of his trial counsel. He was afforded an evidentiary hearing. Extensive evidence was presented by Movant and State. His motion was denied. We affirm.
Movant contends the court’s conclusion that defendant had effective assistance of counsel was based on an erroneous finding that defense counsel had made a conscious decision not to use a'witness. Movant gave his lawyer (hereinafter “Lawyer”) the name and address of one Herman Bradford as a potential witness at his trial. Lawyer asked his investigator (hereinafter “Investigator”) to find Bradford. Investigator reported his unsuccessful efforts to locate Bradford.
During the trial, Investigator handed Lawyer a note to the effect that the King witness was outside. Lawyer believed this witness was Bradford. Lawyer did not recall if he went outside and talked to Bradford and then decided not to use him as a witness, or if he decided not to use him after the note was given to him. Lawyer recalls that he did make a decision not to use Bradford. His strategy was not to use Bradford. He did not remember why.
Lawyer’s testimony substantiates the trial court’s finding that trial counsel had made a conscious decision not to use Bradford as a witness. We must affirm the ruling of the trial judge unless it appears his findings, conclusions and judgment are clearly erroneous. Laney v. State, 584 S.W.2d 411, 413 (Mo.App.1979).
Accordingly, the judgment is affirmed.
