Ward v. StateWard v. State
- Reporters:
- , ,
- Before:
- Karohl
After an evidentiary hearing the motion court denied movant’s request for post conviction relief under Rule 27.26, repealed effective January 1, 1988, and replaced by Rule 29.15. He was tried and found guilty of attempted rape. The court rejected movant’s claim that his trial counsel “failed to undertake any prеtrial investigation which would have materially helped his case.” The motion court found movant’s trial counsel did make reasonable investigation of the case and did discuss matters arising out of his investigation with movant prior to trial. It also found that movant failed to establish any specific information which would have been discovered by additional investigation, failed to prove how movant’s dеfense would have benefited, and failed to show that such information, if any, would hаve been discovered in additional investigation.
The factual setting for the mоtion appears in this court’s opinion in State v. Ward, 682 S.W.2d 124 (Mo.App.1984). Shortly after 10:15 p.m. the prоsecuting witness purchased some items at a 7-11 store. She crossed a street to return to a hotel where she lived and worked. Movant grabbed her arm, forсed her into an alley beside the hotel, struck her two or three times in the face, pulled down her slacks and lowered his trousers. She was yelling to the hotel dеsk clerk for help. A police officer arrived and observed movant оn top of the victim. Movant was arrested after a foot chase.
We hold the findings, conclusions and judgment of the motion court were not clearly erroneous. Rule 29.15(j); Stevenson v. State, 720 S.W.2d 10, 11 (Mo.App.1986). Movant claimed ineffective assistance of counsel. This claim must be supported by allegations of specific informatiоn which was not discovered, that reasonable investigation would have discоvered the information and that the material so discovered would have bеnefited the mov-ant in a defense of the charge. Warren v. State, 740 S.W.2d 251, 252 (Mo.App.1987).
The basic facts were simple and involved only three persons, movant, the victim and a policе officer. Movant’s trial counsel testified he visited the 7-11 store, the hotel, and thе scene of arrest. Counsel attempted to find the clerk who sold the victim sоme food items and, according to movant, a bottle of whiskey. This testimony alоne was sufficient to support the finding of the motion court that movant’s counsеl was not ineffective for failure to undertake any pretrial investigation.
Mоvant’s defense was consent. The arresting officer testified the victim mentionеd the purchase of whiskey at the 7-11 store. She also purchased coffеe, donuts and cigarettes. The victim denied purchasing the whiskey. Accordingly, this cоnflict in evidence as it relates to the victim’s credibility, was before the jury. Part of movant’s argument is that trial counsel was ineffective for failure to depоse the victim or subpoena or call the clerk of the 7-11 store in order tо present evidence about the purchase of whiskey in support of the defense of consent. However, the performance of such aсts would not have served to present any evidence not otherwise befоre the jury. It follows that mov-ant’s evidence failed to establish that the efforts оf his attorney fell below an objec*71tive standard of reasonableness or a reasonable probability that further efforts would have altered the result. Movant failed to satisfy the requirements to support his claim for relief in the absence of proof of these elements. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 369-70, 88 L.Ed. 2d 203 (1985).
Movant’s counsel also tеstified that he intentionally, as a matter of strategy, did not depose the victim. Cоunsel was aware of the nature of the testimony of the prosecuting witness who had moved from Missouri to Indiana before trial. An effort to depose her wаs as likely to promote her return for trial than to develop evidence useful to the defense. Matters of trial strategy, generally, do not constitute ineffective assistance of counsel. Mahaney v. State, 660 S.W.2d 774, 775 (Mo.App.1983).
We affirm.
GRIMM, P.J., and GARY M. GAERTNER, J., concur.