Kirkwood v. State

CLEMENS, Judge.

Movant-defendant William C. Kirkwood appeals the post-evidentiary hearing denial of his Rule 27.26 motion. He had been convicted of attempted robbery and as a prior convict sentenced to 15 years in prison. Affirmed on appeal. See State v. Kirkwood, 659 S.W.2d 284 (Mo.App.1983).

The motion court had testimony from both defendant and his trial counsel.

By his first point defendant claims counsel was ineffective by not interviewing two alibi witnesses. This was refuted by the motion evidence. It shows both witnesses had been interviewed by trial counsel but when testifying were impeached by showing they based their alibi on an erroneous date.

We deny defendant’s first point and consider his second. Thereby defendant claims trial counsel failed to object to a mug-shot photograph. This was not shown to refer to a prior conviction and by defendant’s motion testimony it was not shown to the jury.

Defendant has patently failed to meet his burden to show the trial court abused its discretion. Rule 27.26(f) and Cherry v. State, 660 S.W.2d 361[7] (Mo.App.1983).

Affirmed

DOWD, P.J., and PUDLOWSKI, J„ concur.