Page v. State, 43679

• Decision Date: 09 February 1982
• Docket Number: No. 43679,43679
• Citation: 632 S.W.2d 293
• Parties: Richard PAGE, Movant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 293

632 S.W.2d 293

Richard PAGE, Movant, v. STATE of Missouri, Respondent.

No. 43679.

Missouri Court of Appeals, Eastern District, Division One.

Feb. 9, 1982.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 19, 1982.

Application to Transfer Denied May 17, 1982.

Howard E. McNier, St. Louis, for movant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for respondent.

STEWART, Presiding Judge.

This is a proceeding under Rule 27.26 in which movant seeks to have his conviction for assault with intent to maim with malice aforethought vacated. The trial court dismissed the Motion to Vacate Judgment and Sentence without an evidentiary hearing.

The incident giving rise to movant's conviction took place while movant was incarcerated in the St. Louis City Medium Security Institution. He slashed Mark Moore, another inmate, in the neck with a piece of glass that had been a part of a light fixture in movant's cell.

Movant's first trial for that offense resulted in a mistrial. In that trial Mark Moore, the victim, was called as a witness. Moore did not testify at the second trial in which movant was convicted.

This court affirmed the conviction. State v. Page, 580 S.W.2d 315 (Mo.App.1979).

In movant's 27.26 motion he alleged that his trial counsel was ineffective because he failed to call Robert Ingram to testify on movant's behalf; that Robert Ingram "would have testified that movant acted in 'self defense' ...."

We agree with the trial court's finding that the above quoted portion of movant's motion was not an allegation of fact but was conclusory and did not meet the requirements of Rule 27.26. Trout v. State, 523 S.W.2d 529 (Mo.App.1975). The movant's motion does not allege any facts that would demonstrate that Ingram would testify to any elements of the defense of self defense. The bare conclusion that Ingram would testify that "movant acted in self defense" gives no indication of the facts that could have been developed through this witness. Simpson v. State, 603 S.W.2d 9 (Mo.App.1980). See also Rice v. State, 585 S.W.2d 488 (Mo. banc 1979).

Movant contends that he should have had an evidentiary hearing upon the allegation in his motion that " 'Movant will call to testify additional witnesses he desired called for the defense who's (sic) names Movant gave counsel and who were similarly confined to the City Jail and were present on the date and time of the alleged crime and who will all testify that Movant's counsel failed to seek them out and interview them to assert the material aspect of their testimony at trial and whether same was favorable to the defense' ...."

This allegation suffers the same malady as the first issue discussed above. It does not identify any of the persons who might be witnesses and fails to state the substance of the testimony that might be expected. It follows that there is no basis for believing that the outcome of the trial would have been affected by the testimony of the unidentified witnesses. Simpson v. State, supra, at 11; Dickerson v. State, 594 S.W.2d 293 (Mo.App.1979).

Such allegations illustrate the sound basis for the requirement that motions under Rule 27.26 state facts, not conclusions, as a foundation for relief. It gives the trial court an opportunity to make a rational determination as to whether there is factual support for relief without the unnecessary expense of frivolous litigation.

The movant's next point relied on reads as follows:

"The Findings of Fact, Conclusions of Law and Decision of the Trial Court were clearly erroneous in overruling Appellant's Rule 27.26 Motion in that the Trial Court should have found ineffective assistance of counsel per se in defense trial counsel's failure to assure the appearance at the second trial by the alleged victim of Appellant's assault who had testified in person at the first trial at which the jury was unable to reach a verdict, as said failure by defense trial counsel is not mere trial error or trial strategy as asserted by the Trial Court."

The State correctly observes that this point does not formulate and isolate the precise issue that defendant expects us to review nor does it advise us wherein and why the trial court erred. State v. Collins, 602 S.W.2d 12 (Mo.App.1980).

The only reference to the victim's absence in the movant's motion to vacate judgment reads as follows:

"Movant was deprived of his right to confront and cross-examine the State's sole witness, one, Marl (sic) Moore, at the second trial before a different jury because his lawyer failed to 'object' to the unavailability of Mark Moore at the second trial, all to the 'prejudic...