Underwood v. State, 40489
| Decision Date | 30 October 1979 |
| Docket Number | No. 40489,40489 |
| Citation | 591 S.W.2d 140 |
| Parties | Lloyd UNDERWOOD, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Robert C. Babione, Public Offender, Kevin Curran, Asst. Public Defender, St. Louis, for movant.
Lloyd Underwood, pro se.
John Ashcroft, Atty. Gen., Paul Robert Otto, Teresa Aloi Angle, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
After an extended evidentiary hearing Movant Lloyd Underwood (hereafter defendant) appeals the denial of his Rule 27.26 motion.
Defendant seeks to set aside his 1970 armed robbery conviction, affirmed on appeal in State v. Underwood, 470 S.W.2d 485 (Mo.1971). As a prior felon defendant had been sentenced to 30 years in prison. At the original trial defendant was represented by retained counsel, Mr. Lawrence Willbrand. Appointed counsel represented defendant on his original appeal, on the present motion, and on this appeal from its denial.
Defendant's motion first charges ineffective assistance of trial counsel by failing to make an adequate pre-trial investigation in not interviewing three prospective witnesses: the victim Dorothy Wolff, the arresting officer Ronald Roach, and defendant's brother Tom Underwood. These in turn.
Defendant testified but trial counsel did not recall that he asked counsel to interview the robbery victim and discredit her by showing she was a prostitute. Instead, trial counsel made the tactical decision to cross-examine the victim about probable entrapment, based on testimony that two police officers were waiting at the scene of the robbery as the victim returned from a bank with an empty money bag.
Defendant also contends trial counsel failed to interview police officer Roach about his testimony he took the money bag from the victim's car rather than from her person as alleged. Due to illness Roach did not testify. But on cross-examination officer Steenbergen supported defendant's factual contention.
Defendant's last challenge to counsel's trial preparation is about defendant's prior conviction. He now contends trial counsel failed to interview his brother Tom Underwood who defendant says could have contradicted the workhouse warden's identification testimony. Defendant himself negated this by admitting he had in fact been confined at the time in question.
We accept the trial court's conclusion that the extent of trial counsel's pre-trial investigation was discretionary and was not so inadequate as to deny defendant a fair trial. Compare Aikens v. State, 549 S.W.2d 117(2-4) (Mo.App.1977). We deny defendant's primary point.
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Joiner v. State
...their testimony related to an issue which movant had waived by not bringing it up on direct appeal after his trial. Underwood v. State, 591 S.W.2d 140 (Mo.App.1979). For the foregoing reasons, the record shows the trial court did not err in overruling movant's motions for post-conviction Th......
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Hufft v. State, 15586
...any claimed error at sentencing is a matter for direct appeal. Arbeiter v. State, 738 S.W.2d 515, 516 (Mo.App.1987); Underwood v. State, 591 S.W.2d 140, 141 (Mo.App.1979). Movant fails to allege any "rare and exceptional" circumstances which would permit raising this point for the first tim......