Mitchell v. State, 52706

Decision Date19 January 1988
Docket NumberNo. 52706,52706
Citation747 S.W.2d 234
PartiesStephen MITCHELL, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

William J. Shaw, Public Defender, Shawn A. Goulet, Asst. Public Defender, Clayton, for appellant.

William L. Webster, Atty. Gen., Jeffrey Philip Dix, Asst. Atty. Gen., Jefferson City, for respondent.

CRIST, Judge.

Movant appeals the denial of his Rule 27.26 motion after an evidentiary hearing. We affirm.

Movant was convicted by a jury of assault first degree, § 565.050; robbery first degree, § 569.020, RSMo 1986; and kidnapping, § 565.110, RSMo 1986. He was sentenced to two life sentences and one thirty-year sentence to be served concurrently. His conviction was affirmed in State v. Mitchell, 674 S.W.2d 184 (Mo.App.1984).

Movant seeks to vacate his convictions and sentences because of ineffective assistance of counsel. In order to prove ineffective assistance of counsel, movant must prove his attorney failed to exercise the customary skill and diligence of a reasonably competent attorney and that he was prejudiced thereby. Abrams v. State, 698 S.W.2d 15, 17 (Mo.App.1985). Movant bears a heavy burden of proving unfairness resulting from alleged ineffective assistance of counsel. Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987).

Movant first contends his counsel was ineffective by failing to contact certain witnesses to testify on his behalf. He proffers that four months before his original trial, he provided his counsel with the names, addresses, and phone numbers of three witnesses who could provide him with an alibi. Movant was denied the testimony of those witnesses because his lawyer did not attempted to endorse them until the day of trial, and endorsement was not allowed at that point.

At the Rule 27.26 hearing, only one of these witnesses testified. She stated movant was at her home until after midnight on the night in question. She further testified that she went to bed at midnight that night and did not awaken until 9 a.m. The crime was committed at 2:35 a.m.

In movant's original motion for new trial, he asserted these absent witnesses "would have testified only as to the defendant's appearance and not to alibi...." At the Rule 27.26 hearing, movant's original trial counsel testified at length about his problems with the three absent witnesses. He stated he had contacted two of the three witnesses and they did not have their alibi testimony together. As late as May 1983, movant's lawyer was not sure if there was an alibi defense. He decided not to use the alibi witnesses as a matter of trial strategy. Movant's lawyer was unable, until the morning of trial, to determine an alibi defense was proper. At that point, the court denied his request to endorse the three witnesses.

The credibility of witnesses is to be determined by the trial court. Hampton v. State, 558 S.W.2d 369, 370 (Mo.App.1977). The trial court properly found movant's lawyer made a decision not to use the three witnesses because of the confusion of movant and the witnesses as to the facts of the alibi.

"If an attorney believes that the testimony of an alibi witness would not unqualifiedly support his client's position, it is a matter of trial strategy not to call him to the...

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5 cases
  • Turner v. State
    • United States
    • Missouri Court of Appeals
    • December 4, 2012
    ...to satisfy his burden that this testimony would have established a viable defense.” Barnes, 334 S.W.3d at 722.See also Mitchell v. State, 747 S.W.2d 234, 235 (Mo.App.1988) (no IAC in failing to call alibi witnesses who “did not have their alibi testimony together”). Indeed, it is not a fore......
  • Starr v. State, 16497
    • United States
    • Missouri Court of Appeals
    • May 9, 1990
    ...does not demonstrate incompetency of counsel unless manifestly wrong. Beeman v. State, 502 S.W.2d 254, 257 (Mo.1973); Mitchell v. State, 747 S.W.2d 234, 236 (Mo.App.1988); Fitzpatrick v. State, 578 S.W.2d 339, 340 (Mo.App.1979). There was no evidence before the hearing court that trial coun......
  • Evans v. State, 54379
    • United States
    • Missouri Court of Appeals
    • October 25, 1988
    ...Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987). The credibility of witnesses is for the motion court. Mitchell v. State, 747 S.W.2d 234, 235 (Mo.App.1988). Movant's trial counsel's investigations were reasonable. She had investigated the co-defendants' prior statements, and she could......
  • Cooper v. State, 16167
    • United States
    • Missouri Court of Appeals
    • October 25, 1989
    ...that such a decision was manifestly wrong, citing Fitzpatrick v. State, 578 S.W.2d 339, 340 (Mo.App.1979). See also Mitchell v. State, 747 S.W.2d 234, 236 (Mo.App.1988). Those findings and conclusions are supported by the record and are not clearly Cooper next claims that his trial lawyer w......
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