Opinion

State v. Lewis

  • 872 S.W.2d 653
  • 1994 Mo. App. LEXIS 473
  • 1994 WL 88412
Court
Missouri Court of Appeals
Filed
Mar 22, 1994
Status
Published
Author
Crandall
On the bench
Crandall, Crist, Reinhard
Cited by
2 cases
Authority
More cited than 48.1%

The opinion

CRANDALL, Presiding Judge.

Defendant, Marcus Lewis, appeals from a judgment of conviction, after a jury trial, for first degree assault. Defendant was sentenced to imprisonment for thirty year’s. Defendant also appeals from the denial of his Rule 29.15 motion after an evidentiary hearing. We affirm.

The evidence at trial established that defendant entered, uninvited, the Nolan’s apartment with a gun. The Nolans lived in defendant’s neighborhood and defendant had an argument with Antwine Smith, Mrs. Nolan’s son, earlier that day. Mr. Nolan grabbed the gun and pushed it upward away from his children when it fired. Mr. Nolan backed away from defendant to see if his children were alright. Defendant then shot Mr. Nolan and fled from the apartment.

*654 Defendant first contends that the trial court erred in denying his Rule 29.15 motion alleging that he had ineffective assistance of counsel because his attorney did not call Shavonne Brown as a witness at trial. Defendant claimed that Shavonne Brown would have testified that Mr. Nolan hit defendant with a baseball bat prior to defendant shooting him.

In order to demonstrate that defense counsel was ineffective in not calling a witness, defendant must prove: 1) the witness could have been located through reasonable investigation; 2) the witness would have testified if called; and 3) the testimony of said witness would have presented a viable defense. Harry v. State, 800 S.W.2d 111, 115 (Mo.App.1990). Allegations in a post-conviction motion are not self-proving. Clemmons v. State, 795 S.W.2d 414, 416 (Mo.App.1990), cert. denied, 500 U.S. 907 , 111 S.Ct. 1689 , 114 L.Ed.2d 83 (1991). Defendant must prove the alleged grounds for relief by a prepon derance of the evidence. Id. Mere conjecture or speculation as to the potential testimony is not sufficient to establish the required prejudice. State v. Anderson, 785 S.W.2d 596, 600 (Mo.App.1990).

In the present case, Shavonne Brown did not testify at the evidentiary hearing. In fact, the mother of the fifteen-year-old witness told defendant that she would not allow her daughter to testify. Also, defendant testified at trial that he did not know Shavonne Brown’s address and thought that she had moved out of town. Therefore, defendant’s claims as to Shavonne Brown’s testimony were mere conjecture and speculation. Defendant’s first point is denied.

Defendant also raises two claims of error relating to his direct appeal. No jurisprudential purpose would be served by an extended opinion on these points. Both points are denied. Rule 30.25(b).

Defendant’s judgment of conviction is affirmed. The judgment denying defendant’s Rule 29.15 motion is also affirmed.

REINHARD and CRIST, JJ., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.