Opinion
No. 53093.
March 8, 1988. Motion for Rehearing and/or Transfer to Supreme Court Denied April 6, 1988. Application to Transfer Denied May 17, 1988.
APPEAL FROM CITY OF ST. LOUIS CIRCUIT COURT; ROBERT H. DIERKER, JR., JUDGE.
Holly G. Simons, Asst. Public Defender, St. Louis, for appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals the denial of his Rule 27.26 motion after an evidentiary hearing. We affirm.
Movant was convicted by a jury of assault in the second degree and armed criminal action. He was sentenced as a prior and persistent offender to two concurrent ten-year prison terms. Movant shot victim three times after an episode concerning movant's child and the child's mother, Charlene White.
In his Rule 27.26 motion, movant alleged his lawyer failed to investigate and interview before trial Charlene White, who testified for the State. At the Rule 27.26 hearing, movant's lawyer testified he had interviewed White prior to trial. White also testified she spoke with defense counsel before trial. Movant testified that, to his knowledge, his counsel never spoke to White. It is for the trial court to determine the credibility of witnesses. Hampton v. State, 558 S.W.2d 369, 370 (Mo.App. 1977).
After alleging in his point relied on that movant's lawyer was ineffective for failing to adequately investigate charges against movant with regard to interviewing and deposing witnesses, movant admits his lawyer interviewed Charlene White. Movant asserts on appeal that his counsel was ineffective for failing to depose Charlene White and James Jackson.
Since the issue of deposing White and Jackson was not raised in his 27.26 motion or presented to the trial court during the evidentiary hearing, movant is precluded from raising that issue at this stage. Mallett v. State, 716 S.W.2d 902, 905 [1] (Mo.App. 1986); Walker v. State, 715 S.W.2d 261, 262 [1] (Mo.App. 1986).
In any event, the trial court did not err in finding movant had effective assistance of counsel. See Sanders v. State, 738 S.W.2d 856, 859 (Mo.banc 1987).
Judgment affirmed.
GARY M. GAERTNER, P.J., and REINHARD, J., concur.