Cox v. State, 40127

• Decision Date: 19 December 1978
• Docket Number: No. 40127,40127
• Citation: Cox v. State, 578 S.W.2d 54 (Mo. App. 1978)
• Parties: Donald Garfield COX, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 54

578 S.W.2d 54

Donald Garfield COX, Movant-Appellant, v.STATE of Missouri, Respondent.

No. 40127.

Missouri Court of Appeals, St. Louis District, Division Four.

Dec. 19, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 16, 1979.

William J. Shaw, Public Defender, William B. Haller, Asst. Public Defender, Clayton, for movant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Eric Martin, Asst. Attys.Gen., Jefferson City, Courtney Goodman, Jr., Pros.Atty., Clayton, for respondent.

CRIST, Judge.

Movant was found guilty by a jury of murder in the first degree and sentenced by the court to life imprisonment.His conviction was affirmed by this court.State v. Cox, 542 S.W.2d 40(Mo.App.1976).Reference is made thereto for a detailed statement of facts.

Movant then filed his Rule 27.26 Motion contending ineffective assistance of counsel in that (1) his attorney failed to endorse two alibi witnesses in time to have them called at trial, and (2)he was prejudiced by his attorney's failure to preserve the issue of error in the admission into evidence of a double-shot picture taken of movant by the police after his arrest.

The trial court, after the appointment of counsel, dismissed appellant's motion without a hearing for failure to state a claim for relief.A denial of a motion without a hearing was equivalent to findings and conclusions opposed to the grounds stated in the motion.If the court was correct in its conclusion, its order is sufficient.Stout v. State, 543 S.W.2d 797, 798-799(Mo.App.1976).We affirm the order of the trial court if it is not clearly erroneous and can be sustained on any ground, stated or not.State ex rel. Reece v. Campbell, 551 S.W.2d 292, 298(Mo.App.1977).

The threshold requirement to plead ineffective assistance is to allege facts sufficient to establish that a duty existed upon counsel as to the movant.SeeHaynes v. State, 534 S.W.2d 552, 554(Mo.App.1976).The allegation as to the failure to endorse witnesses is deficient in this respect, particularly in view of this court's discussion of issues related to movant's alibi defense on direct appeal.The trial court's order as to this point is not clearly erroneous and no error of law appears.We determine that an opinion with reference to movant's first contention would have no precedential value.The judgment of the trial court with reference thereto is affirmed in accordance with Rule 84.16(b).

Did movant have ineffective assistance of counsel by reason of his attorney's failure to complain in his motion for a new trial of the admission into evidence of a double-shot picture of movant?To establish ineffective assistance movant must establish such prejudicial conduct of counsel as to have resulted in a substantial deprivation of the right to a fair trial.Nelson v. State, 537 S.W.2d 689, 695(Mo.App.1976);SeeHaliburton v. State, 546 S.W.2d 771, 774(Mo.App.1977).The double-shot picture showed frontal and profile views.The shots were taken after his arrest.There was a writing...