Opinion
No. 44154.
March 16, 1982.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS CITY, JACK L. KOEHR, J.
Kuelker, Gates Shaumann, H. Carl Kuelker, St. Louis, for movant.
John Ashcroft, Atty. Gen., Kristie Green, Melinda Corbin, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Movant Gregory Montgomery appeals from an adverse ruling on his Rule 27.26 motion after an evidentiary hearing. We affirm.
Movant was convicted, in 1978, of robbery in the first degree, and sentenced to thirty years imprisonment. The trial court's judgment and sentence was affirmed in State v. Montgomery, 588 S.W.2d 80 (Mo.App. 1979).
Movant asserts incompetent counsel at his original trial by reason of his lawyer's failure to call his mother and his girlfriend to testify as alibi witnesses. To prevail, movant must show: (1) that his counsel failed to perform some duty; and (2) that this failure actually prejudiced the defense. Walker v. State, 567 S.W.2d 398 (Mo.App. 1978). Moreover, upon review of a motion to vacate a conviction, we are limited to a determination of whether the findings, conclusions and judgments of the trial court are clearly erroneous. Porter v. State, 596 S.W.2d 480 (Mo.App. 1980).
Both the movant's desired witnesses testified at the Rule 27.26 hearing. Their testimony put defendant at another place 1 1/2 to 2 hours before the robbery. Such testimony was of little help to movant's case. Moreover, the trial court, exercising its duty to ascertain the veracity of the witnesses, Jones v. State, 598 S.W.2d 595, 596 (Mo.App. 1980), did not believe them. The trial court properly determined movant failed to show, by a preponderance of the evidence, that movant was prejudiced by ineffective assistance of counsel.
The judgment of the trial court is based on findings of fact which are not clearly erroneous.
Judgment affirmed.
REINHARD, P. J., and SNYDER, J., concur.