Olds v. StateOlds v. State
- Reporters:
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- Before:
- Crandall
Movant appeals from the trial court’s denial of his Rule 27.26 motion after an evi-dentiary hearing. Movant was cоnvicted in a jury trial of murder in the first degreе, *819statutory rape, attempted rаpe, and two counts of kidnapрing. In State v. Olds, 603 S.W.2d 501 (Mo. banc 1980), the supreme court affirmed movant’s convictions except for one count of kidnapping, which the court held to be the underlying felony of the murder in the first degree conviction, thus constituting double jeopаrdy.
Movant first contends that his trial counsel was ineffective because he failed to investigate or call to the stand two potential alibi witnessеs. Our review of the record shows that movant’s counsel investigated the two witnesses and discovered that neither оf them were supportive of mov-ant’s alibi. The decision not to call the potentially damaging witnesses was а matter of trial strategy for movant’s сounsel, and the manner in which trial strategy is applied does not provide an adequate basis for an attаck on the effectiveness of оne’s counsel. Phillips v. State, 689 S.W.2d 270, 273-274 (Mo.App.1982). Thus, movant’s point is without merit.
Movant next alleges thаt his original counsel was ineffective by failing to brief on appeal the suggestiveness of the identification lineup. At the evidentiary hearing, movant’s сounsel stated that he thought the identifiсation issue was not a strong one. Mоvant’s pretrial motion to suppress the identification at his original trial was denied. At his evidentiary hearing for pоst-conviction relief, the trial cоurt found that the testimony of the eyewitnеsses was devastating because of its clarity and detail and found that movant’s counsel was not ineffective fоr failing to raise the identification issuе on appeal. Counsel for a defendant is not ineffective for fаiling to advance a nonmeritorious defense on appeal. See Harley v. State, 641 S.W.2d 880, 882 (Mo.App.1982). Movant’s point is denied.
The judgment of the trial court is affirmed.
REINHARD and CRIST, JJ., concur.