Cotton v. State

729 S.W.2d 565, 1987 Mo. App. LEXIS 3880

Opinion

CLEMENS, Special Commissioner.

After an evidentiary hearing appellant-defendant Roscoe Cotton appeals the denial of his Rule 27.26 motion.

Defendant previously had been jury-convicted of first degree assault; as he was a persistent offender the trial court had sentenced him to life in prison. On appeal we affirmed at 660 S.W.2d 365 (Mo.App.1983).

By this Rule 27.26 motion defendant first contends he had only one previous conviction, not two. The record squarely refutes this. The initial record shows defendant had pled guilty to two previous felonies committed over a month apart. Point denied.

Next, defendant here contends his trial counsel refused to call two alibi witnesses. Defendant called his defense counsel, public defender Ms. Stormy White. She testified she had interviewed both proposed alibi witnesses and believed their testimony would be harmful to defendant. Under those circumstances defendant cannot validly complain. Compare Phillips v. State, 639 S.W.2d 279[3] (Mo.App.1982).

Defendant has failed to meet his burden to show the motion court erred. We affirm.

GARY M. GAERTNER, P.J., and KAROHL, J., concur.