Opinion
No. 15698.
February 21, 1989. Motion for Rehearing and/or Transfer to Supreme Court Denied March 15, 1989.
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, DON BONACKER, J.
James R. Schumacher, Asst. Public Defender, Springfield, for movant-appellant.
William L. Webster, Atty. Gen., William J. Swift, Asst. Atty. Gen., Jefferson City, for respondent.
Following jury trial movant was convicted of assault in the first degree. See § 565.050, RSMo 1978. The trial court found defendant to be a dangerous offender, see § 558.016.4, RSMo Supp. 1984, and sentenced him to imprisonment for 25 years. The conviction and sentence were affirmed. State v. Stiles, 712 S.W.2d 42 (Mo.App. 1986).
Thereafter, movant filed a motion under Rule 27.26 seeking to set aside the conviction. Following an evidentiary hearing the trial court made findings of fact, conclusions of law, and entered judgment denying the motion. Movant appeals. This appeal continues to be governed by Rule 27.26 as sentence was pronounced and the motion to vacate filed before January 1, 1988. Rule 29.15(m).
In reviewing the trial court's decision this court is limited to determining whether the findings, conclusions, and judgment of the trial court were clearly erroneous. Rule 27.26(j). These findings are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake has been made. Richardson v. State, 719 S.W.2d 912, 915 (Mo.App. 1986).
Movant contends that the trial court erred in denying his motion because he was denied his right to effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article I, Section 18(a) of the Missouri Constitution. He states that his counsel at the criminal trial failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise by failing to investigate, subpoena and call two defense witnesses who would have rebutted and impeached the testimony of the state's witnesses.
Movant has the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f). "To sustain a claim of ineffective assistance of counsel movant must establish that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability being a probability sufficient to undermine confidence in the outcome." Tatum v. State, 693 S.W.2d 903, 904 (Mo.App. 1985). See also Applegate v. State, 705 S.W.2d 110 (Mo.App. 1986).
Movant testified that he twice gave the attorney a list of potential witnesses which names included the two that he now contends should have been interviewed and called to testify. Movant's defense counsel stated he was not given such a list and one of the potential witnesses was never mentioned to him. He said he was told of the other after the trial and he talked to her. What she told him "wasn't particularly helpful." She told him that there had been a discussion between movant and the victim and that then the victim pushed movant and movant drew a revolver and shot him.
The trial court chose to believe the attorney. Credibility of the witnesses is generally a matter for the trial court's determination to which this court gives considerable deference. Pool v. State, 670 S.W.2d 210, 211-212 (Mo.App. 1984). See also Trimble v. State, 588 S.W.2d 168, 170 (Mo.App. 1979) (trial judge could disbelieve testimony, even when uncontradicted).
The trial judge did not believe movant's testimony and was justified in doing so. In addition, the trial court also found, and had a basis to find, that even had the witnesses testified, that the result of the criminal trial would not have changed. There was evidence to support the trial court's findings, and we cannot say that the judgment entered based on them was clearly erroneous.
The judgment is affirmed.
HOGAN and MAUS, JJ., concur.