Movant was convicted by jury of capital murder pursuant to § 565.001 RSMo 1978 and the jury imposed the death penalty. The conviction was affirmed on appeal.
State v. Laws,
A full statement of the facts may be found in the report of the direct appeal. In brief, movant was jury convicted of two counts of capital murder, § 565.001 RSMo 1978, in connection with the deaths of Clarence and Lottie Williams. The evidence showed that the defendant and his companions willfully took the lives of this elderly couple to avoid detection of their robbery schеme. The jury found four statutory aggravating circumstances were present, § 565.012 RSMo 1982, and assessed the death penalty.
On appeal, movant raises two points of error. First, movant contends that the trial court failed to make specific findings of fact and conclusions of law regarding his claim of ineffective assistance of counsel based on defense counsel’s decision to refrain from putting on evidence during the penalty stage in mitigation of the death penalty.
The issue of ineffective assistanсe of counsel due to the absence of mitigational evidence was first raised by the testimony of several witnesses during the November 16, 1984, evidentiary hearing on mov-ant’s Rule 27.26 motion. Movant presented the testimony of several witnesses, including his trial counsel, cоncerning the advisability of putting relatives and clergymen on the stand during the penalty stage of a capital murder trial to testify in mitigation of the death penalty. This testimony was received without objection by the state. Under the circumstances, we find that the issue wаs tried by the implied consent of the parties, and thus, will be treated as amending the Rule 27.26 motion to conform to the evidence. Rule 55.33(b);
Vidauri v. State,
After hearing the evidence, the trial court made the following findings of fact and conclusions of law regarding the absence of evidence in mitigation of the death penalty:
Tim Devereux contacted relatives of movant by calling a phone number mov-ant supplied. Two different persons told Mr. Devereux that relatives would not testify on Mr. Law’s behalf. Timothy Devereux was fully informed at the time of trial of the possibility of calling clergy persons and professors to give their views on the death penalty. Mr. Dever-eux decided after due consideration and *185 after calling such persons in the first trial of Leonard Laws that their testimony would not bе beneficial to the case. Timothy Devereux protected Leonard Law’s right to a fair trial through pretrial motions, adequate trial preparation, a skillful trial, and preservation of any points for appeal.
Rule 27.26(i) provides that the court shall make findings of fact and conclusions of law on all issues presented. Under 27.26(j) appellate review is limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.
Battle v. State,
Movаnt’s point II contends that the trial court erred in finding he received effective assistance of counsel. First, movant asserts that his counsel failed to adequately investigate his psychiatric state by failing to ascertain the meaning of terms in mov-ant’s psychоlogical evaluation.
To establish ineffective assistance of counsel, movant had to show that his attorney’s performance did not conform to the degree of skill, care, and diligence required of a reasonably competent attоrney under similar circumstances. In addition, movant was required to show that he was thereby prejudiced.
Strickland v. Washington,
Movant’s experienced criminal аttorney, Timothy Devereux, received a psychiatric report by Dr. Bratkowski of the Fulton State Hospital prepared in connection with a separate murder charge against movant. Two other capital murder charges had been brought against movant. During the hearing on movant’s 27.26 motion, attorney Devereux was questioned about the psychiatric report on movant. Close examination of the transcript reveals that attorney Dev-ereux made a reasoned strategic decision based on all the circumstances to refrain from putting on evidence at trial of mov-ant’s psychiatric state. The pertinent part of the transcript is as follows:
Q. What were the results of this examination that you were aware of before the trial?
A. The findings were, from Roman Numeral VIII, that the accused had no mental disease or defect within the meaning of § 588.010, and that Leonard had the capacity to understand the proceedings against him and knew and appreciated the nature and wrongfulness of his conduсt.
Q. And do they also, on page four of this document, talk about an evaluation in Mississippi and what the diagnosis there was?
A. It states that he was given the diagnosis of anti-social personality and situational reaction of adult life.
Q. So the doctor in the examinаtion you reviewed also considered this Mississippi evaluation, is that right?
A. Yes.
Q. Now, you said besides this examination in Defendant’s exhibit B, you also considered Leonard Laws, his background, and your conversations with *186 him. And what did you glean from that, if anything?
A. Well, in my conversations with him I didn’t detect — again, its a lay opinion. But I didn’t dеtect any mental disease or defect that would interfere with our preparing to go to trial or for his standing trial.
Q. All right. And so was that ever a plan, or a possible defense in your mind, a viable defense in any way to claim any mental disease or defect, based on your evaluation of this easel
A. Well, I considered it, but I rejected it.
(Emphasis added)
Q. Did Leonard at any time ever insist that he should be evaluated, or that he was insane in any way?
A. I don’t recall that, no.
Q. Mr. Devereux, did you read through that psychiatric report when you represented Mr. Laws?
A. While I represented him, yes.
Q. And in that report, do you recall the tеrm “situational reaction,” that Mr. Laws suffered from problems with situational reactions?
A. Yes.
Q. And did you speak to the psychiatrist who prepared that report about what a situational reaction was?
A. No. I didn’t.
Q. And at this time, do you know what a situational reaction is?
A. A situational reaction does not rise to the level of mental disease or defect. I know that.
Q. But you did not investigate, at the time you represented Mr. Laws, exactly what a situational reaction was, what the scope of that was?
A. What the scope оf it was, I have an understanding what it is. But I don’t know the actual scope of it. And, again, I read it. It was in the context of the individual’s finding that there was no mental disease or defect.
Q. Right. But when you represented Mr. Laws and read this report, you did not at any time talk to a psychiatrist or psychologist about what types of incidents aggravate situational reactions?
A. No, I did not.
The evidence at movant’s 27.26 hearing convinces us that attorney Devereux made a careful and conscious choice against putting on psychiatric evidence during trial or at the penalty stage. Nothing made known to counsel during his representation of movant, and extensive interviews with him, suggested to counsel that presenting evidence of movant’s psychiatric state would be of any benefit in his defense. Counsеl had a duty to make reasonable investigations or to make a reasonable decision that makes a particular investigation unnecessary.
Strickland v. Washington,
Attorney Devereux’s informed choice of trial strategy to refrain from presenting psychiatric evidence at trial or during the penalty stage renderеd it unnecessary to engage in further inquiry into movant’s psychiatric state. The manner in which trial strategy is applied does not provide an adequate basis for an attack on the effectiveness of one’s counsel.
State v. Thomas,
*187
Notwithstanding our finding that counsel’s reprеsentation was well within prevailing professional norms, we fail to perceive any prejudice to movant as a result of counsel’s trial strategy.
Strickland v. Washington,
Movant next contends that he received ineffective assistance of counsel for the reason that trial counsel did not contact fаmily members named by movant to testify on his behalf during the penalty stage. Attorney Devereux testified that movant gave him the phone numbers of several family members he thought might testify on his behalf during the death penalty stage. Counsel testified that he contacted a woman whom he believed to be movant’s step mother. Counsel stated that she was adamantly opposed to testifying and stated that no other family members would testify. In addition, counsel was able to contact a brother who related he would not testify on behalf of movant.
The claim that an attorney’s investigation of a case is inadequate must allege what specific information the attorney failed to discover, that reasonable investigation would have disclosed that information, and that the information would have aided or improved defendant’s position.
Williams v. State,
We therefore cоnclude that movant was not denied effective assistance of counsel.
The judgment is affirmed.
Notes
. The jury found that the evidence established:
(1) The defendant has a substantial history of serious assaultive convictions § 565.012.2(1).
(2) The murder of each victim was committed while the defendant was engaged in the commission of capital murder of the other victim. § 565.012.2(2)
(3) The defendant murdered both Lottie and Clarence Williams for the purpose of receiving money or any other thing of monetary value. § 565.012.2(4)
State
v.
Laws,