Merritt v. State

GARY M. GAERTNER, Presiding Judge.

Appellant, Derrick Merritt, appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. Appellant and his brother were each convicted by a jury of first degree murder after a joint trial and each received a sentence of life imprisonment without probation or parole. Appellant’s conviction was affirmed on direct appeal in State v. Merritt, 734 S.W.2d 926 (Mo.App., E.D.1987). We affirm.

Appellant first claims ineffective assistance of counsel based on counsel’s alleged failure to investigate a Mr. Von Nib-bett, whom appellant claims would have testified as to the victim’s hostility toward appellant. Appellant testified at his evi-dentiary hearing that Mr. Nibbett did not know the victims personally. Furthermore, trial counsel testified that she did not recall being told about Mr. Nibbett. The trial court’s conclusion that trial counsel conducted an adequate investigation was not clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

Appellant next claims that he was deprived of a fair trial by the prosecution’s use of peremptory strikes to eliminate black jurors from the jury panel (appellant is also black). This claim does not appear in appellant’s pro se or amended motion. Appellant indicated at his evidentiary hearing a desire to amend his motion to include this Batson claim and the motion court stated that it would allow such an amendment if appellant presented any supporting evidence. Appellant neither amended the motion nor presented any evidence regarding this claim.

The motion court was not clearly erroneous in refusing to grant relief on a ground which appellant failed to support with evi*334dence. Malady v. State, 762 S.W.2d 442, 443 (Mo.App., E.D.1988). Point denied.

Since we do not find the motion court’s findings and conclusions to be clearly erroneous, we affirm the denial of appellant’s Rule 27.26 motion.

REINHARD and CRIST, JJ., concur.