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657 S.W.2d 64

Ryder v. State

Missouri Court of Appeals

Decided August 16, 1983

Missouri Court of Appeals · decided 1983-08-16

Cited by 9 later decisions — most recently November 1989

2 federal appellate · 7 state decisions

Relies on Floyd v. State · Johnson v. State · Robinson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1983-08-16

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CRIST, Judge.

¶1Rule 27.26 motion denied after an eviden-tiary hearing. We affirm.

¶2Movant was found guilty of murder in the second degree and was sentenced to 65 years imprisonment as a persistent offender. His conviction was affirmed in State v. Ryder, 598 S.W.2d 526 (Mo.App.1980). Movant charges he received ineffective assistance of counsel because his lawyer failed (1) to secure the testimony of a key defense witness, and (2) to investigate his pre-sen-tence investigation report.

¶3Movant’s lawyer testified he subpoenaed the alleged key witness at the original trial. When the witness failed to appear, his lawyer discussed the situation with movant. The final decision to proceed without the witness was made by movant. Movant did not call this witness to testify at the Rule 27.26 hearing.

¶4Movant’s contention must fail because movant did not show how the testimony of the alleged key witness would have helped him, nor what the testimony would have been. Robinson v. State, 643 S.W.2d 8, 9-10 (Mo.App.1982); Mayes v. State, 589 S.W.2d 637, 638 (Mo.App.1979).

¶5Movant also contends the pre-sen-tence investigation report was false, and he was prejudiced because the trial court relied on the report in imposing the 65 year sentence. Movant testified as to error in the report. The officer who prepared the report testified that insofar as he could determine, the report was accurate. Further, a federal court ruled against movant in a suit he brought alleging the inaccuracy of the same report. The Rule 27,26 judge was not bound to accept movant’s testimony regarding the pre-sentencing report as true, and did not do so. Johnson v. State, 615 S.W.2d 502, 505 (Mo.App.1981); Floyd v. State, 518 S.W.2d 700, 702-3 (Mo.App.1975).

¶6Judgment affirmed.

CRANDALL, P.J., and REINHARD, J., concur.
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