This is a Rule 29.15 case in which the motion court denied the request of Michael Teaster (“Movant”) for post-conviction relief.
In his only point on appeal, Movant charges, in two subparts, he received ineffective assistance of counsel in the underlying criminal case because his trial counsel “failed to investigate and call Lowell Mason [“Witness”] at trial” and “argued to the jury that [Movant] ‘was sobering up’ “at the time of the traffic stop and arrest. Movant asserts Witness could have easily been located and would have provided a viable defense to the charge. Furthermore, Movant claims the “sobering up” comment during counsel’s closing argument amounted to an admission of guilt and was not reasonable trial strategy.
Appellate review of a denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); State v. Ervin,
To prevail on a claim of ineffective assistance of counsel, a movant must show: First, that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, that counsel’s deficient performance prejudiced the defense. Strickland v. Washington,
To obtain relief, a movant must prove both the performance and the prejudice prongs of the Strickland test, and if he or she fails to satisfy either prong, we need not consider the other. State v. Simmons,
In Movant’s first contention, he claims trial counsel was ineffective for failing to investigate Movant’s assertion that he knew of a witness who could provide a viable defense and for failure to call Witness at trial. Witness was fishing with Movant on the day of the arrest and was present at the scene of the arrest.
To prevail on this claim, Movant must prove: (1) trial counsel knew of the existence of the witness, (2) the witness could have been located through reasonable investigation, (3) the witness would have testified, and (4) the testimony would have provided a viable defense. State v. Harris,
Failure to interview a witness is rarely sufficient to support a claim of ineffective assistance of counsel. State v. Bolds,
Since trial counsel and Movant disagreed as to these pretrial events, the motion court had to make the decision of whom to believe. We must defer to the motion court’s superior position in determining the credibility of witnesses. Simmons,
Movant’s second contention asserted trial counsel was ineffective because, in closing argument, counsel stated Movant was “sobering up” at the time of the traffic stop and subsequent arrest. Movant claims this was an admission of guilt. Movant has taken one comment by trial counsel and has not shown the full context in which it was made. The jury was presented with evidence which was basically uncontradicted. At trial, one police officer testified Movant admitted to him that he had nine beers prior to the arrest. Both officers also testified Movant was intoxicated based on Movant’s failure to pass the field sobriety tests. A picture showing Movant’s eyes were not bloodshot on the night of the arrest was the only evidence Movant presented. Movant did not testify because of his prior record. Trial counsel stated “whatever drinking he had been doing, the effects of it were wearing off. And hopefully, the jury would believe that they had worn off sufficiently at that time to decide that he wasn’t guilty.” Counsel further claimed “that was the only reasonable argument to make from the evidence.” “The allegation that counsel gave an ineffective closing argument is a matter of trial strategy which does not provide a basis for post-conviction relief.” State v. Hamilton,
We are not left with the definite and firm impression a mistake has been made and do not find the motion court’s findings and conclusions are clearly erroneous. Point denied.
The judgment is affirmed.
Notes
. All rule references are to Missouri Supreme Court Rules (2000), unless otherwise indicated.
. All statutory references are to RSMo 1994, unless otherwise indicated.
