Tyler v. State, 40411

• Decision Date: 26 June 1979
• Docket Number: No. 40411,40411
• Citation: 588 S.W.2d 3
• Parties: Curtis TYLER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 3

588 S.W.2d 3

Curtis TYLER, Appellant, v. STATE of Missouri, Respondent.

No. 40411.

Missouri Court of Appeals, Eastern District, Division Three.

June 26, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 17, 1979.

Application to Transfer Denied Nov. 14, 1979.

Robert C. Babione, Public Defender, Theodore Guberman, Kevin C. Curran, Asst. Public Defenders, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael Sullivan, St. Louis, for respondent.

REINHARD, Presiding Judge.

Movant appeals the denial of his Rule 27.26 motion following an evidentiary hearing. In 1975, Curtis Tyler was convicted by a jury on the charge of First Degree Murder under the felony-murder statute. He then was sentenced to life imprisonment. This court affirmed the conviction. State v. Tyler, 556 S.W.2d 473 (Mo.App.1977). Movant maintains that the trial court erred in denying his 27.26 motion because he had been denied effective assistance of counsel.

Specifically, movant charges that counsel was ineffective because 1) he had failed to investigate the state's allegation that Tyler had a prior felony conviction, and then disclosed that movant had such conviction to the jury on voir dire, and 2) because counsel did not interview a key state's witness, Calvin Gales. It is argued that, had Gales been interviewed, counsel would have learned that the witness was "under pressure" to testify for the state and, moreover, that counsel would have been aided in impeaching the credibility of the witness at trial.

Our review of an order overruling a Rule 27.26 motion is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Pickens v. State, 549 S.W.2d 910(1) (Mo.App.1977); Rule 27.26(j). On review of a post-conviction motion to vacate judgment, the Court of Appeals is required to give due regard to the trial court's opportunity to hear witnesses, and must defer to its determination of credibility unless it clearly and convincingly appears that it has abused its discretion. Lahmann v. State, 509 S.W.2d 791, 794(1-4) (Mo.App.1974).

Movant has failed to show how defense counsel's failure to investigate his prior conviction record was unduly prejudicial or how such failure denied movant a fair trial. The trial judge explained to the jury that the information regarding a prior felony was incorrect, a "clerical error", and instructed the jury to disregard it. The court, however, did not grant a mistrial. Our court said when this matter was raised on direct appeal that the judge's explanation to the jury and instruction to the jury to disregard anything regarding a former conviction was sufficient relief. State v. Tyler, 556 S.W.2d 473, 476(6) (Mo.App.1977). In order to show ineffectiveness of counsel, movant has the burden of showing that counsel breached a duty to his client, and that such breach resulted in prejudice...