Opinion
No. 46159.
March 22, 1983.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS CITY, GEORGE ADOLF, J.
Robert G. Burridge, Michael R. Swafford, St. Louis, for movant-appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Appeal from the denial of a Rule 27.26 motion. We reverse and remand for an evidentiary hearing.
At approximately 9:00 a.m. on May 22, 1978, in the City of St. Louis, a robbery was committed. An elderly woman was struck on the head from behind with a heavy object and her purse was stolen. Movant was arrested and charged with this crime.
On June 27, 1978, Assistant Public Defender Linda Murphy entered her appearance as counsel for movant. Ms. Murphy filed a memorandum with the court whereby she advised the state that she was endorsing as an alibi witness on behalf of movant, one Mrs. Ella Scales. The memorandum further advised that Mrs. Ella Scales would have testified that Jerome Abrams was painting her house at the time of the alleged robbery. This endorsement was filed on September 14, 1978. On December 21, 1978, Assistant Public Defender Linda Murphy withdrew as movant's counsel and Assistant Public Defender Joseph Webb entered his appearance on movant's behalf.
On the morning of January 31, 1979, the case against movant went to trial. The endorsed alibi witness, Mrs. Ella Scales, was not produced and did not testify. Movant was found guilty of robbery in the first degree and was sentenced to twenty years imprisonment. His conviction was appealed and the conviction was affirmed. State v. Abrams, 597 S.W.2d 230 (Mo.App. 1980).
In his Rule 27.26 motion, movant alleged he had ineffective assistance of counsel in that his lawyer had failed to call Ella Scales who would have, and will testify, movant was at her home painting between the hours of 8 o'clock in the morning and 12 o'clock noon on the day of robbery which occurred at approximately 9:00 a.m. The alleged failure of movant's lawyer to call Ella Scales as a witness who would establish that defendant was at her home at the time of the robbery entitles movant to an evidentiary hearing. Mullen v. State, 638 S.W.2d 304, 305 (Mo.App. 1982).
Reversed and remanded for an evidentiary hearing.
CRANDALL, P.J., and REINHARD, J., concur.