Opinion
No. 13990.
June 25, 1985.
APPEAL FROM THE CIRCUIT COURT, PEMISCOT COUNTY, JOHN R. BAILEY, J.
Charles H. Stegmeyer, Stegmeyer Stegmeyer, Ltd., Belleville, Ill., for movant-appellant.
William L. Webster, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., for respondent.
Movant filed a motion under Rule 27.26 seeking to vacate convictions of sodomy and attempted rape earlier affirmed here. See State v. Sipes, 651 S.W.2d 659 (Mo.App. 1983). Following an evidentiary hearing the trial court denied the motion and movant appeals.
Movant contends that the trial court erred in finding that he received effective assistance of counsel because his defense counsel at the criminal trial failed to contact and subpoena for the trial two alibi witnesses favorable to him, after movant told the attorney of the witnesses.
The evidence regarding this issue was in conflict. Movant testified that he gave the attorney the names and addresses of the witnesses. The attorney testified that movant said several times that he had alibi witnesses. The attorney said he requested their names and addresses on more than one occasion, but movant never did give him that information. The trial court found that appellant did not advise the attorney who the witnesses were or where they could be located. Obviously, if movant failed to provide his counsel with those witnesses, counsel could not be ineffective for failing to contact and subpoena them for trial. See Franklin v. State, 655 S.W.2d 561, 566 (Mo.App. 1983).
Movant had to establish his grounds for relief by a preponderance of the evidence. Rule 27.26(f). Appellate review is to determine whether the trial court's findings, conclusions, and judgment are clearly erroneous. Rule 27.26(j). Assessing the credibility of the witnesses was for the trial court. Trimble v. State, 588 S.W.2d 168, 170 (Mo.App. 1979). In doing so the trial court believed movant's trial attorney. Denying the motion on the ground that the attorney was not told the names and location of the witnesses was supported by the evidence and not clearly erroneous.
The judgment is affirmed.
HOGAN, P.J., and MAUS and CROW, JJ., concur.