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August 31, 1993



Before Ulrich, P.j., Berrey & Smart, JJ.

The opinion of the court was delivered by: Berrey

Appellant appeals his conviction of two counts of rape by a Boone County jury. He also appeals the denial of his 29.15 post conviction motion. We consolidate them herein.

Appellant was the boyfriend of the victim's mother. The victim V.L. lived with her mother and three siblings, and the appellant also lived with them. The mother and siblings went shopping and left V.L. at home, alone with appellant, although V.L. wanted to go shopping too because she did not want to be left alone with the appellant.

After the mother left the appellant locked up the house, told V.L. to go to the bedroom and undress and threatened to "whup" her with a belt if she refused. Appellant then proceeded to rape her twice. Appellant raises the following points of error 1) the trial court abused its discretion by denying his request for a continuance; 2) the motion court erred in denying appellant's post conviction motion because his trial counsel was ineffective by (a) failing to file a motion to suppress appellant's statements and (b) failing to object to prosecuting attorney's improper remarks in closing argument. In the alternative, appellant alleges plain trial court error because of alleged improper remarks in the state's closing argument; 3) the trial court plainly erred in failing to sua sponte declare a mistrial when the prosecuting attorney elicited that appellant had beaten C.W.'s mother and C.W. on prior occasions and that this did not bear on the issues of the case; 4) the trial court committed plain error by submitting Instruction 4, the reasonable doubt instruction.

In his first point, appellant alleges he should have been granted a continuance after the state withdrew its offer in return for his guilty plea. Appellant alleges that because of this his trial counsel was not prepared for trial and he was therefore denied effective assistance of counsel.

Appellant's motion for a continuance was orally made at a docket call on Monday, September 14, 1991. The case was set #1 for trial on Thursday, September 17, 1991. The state announced ready and informed the court that it had made its witnesses available to appellant's trial counsel. The court denied the request for a continuance. The appellant's motion for a continuance did not comply with Rule 24.09. It was not in writing nor was it accompanied by an affidavit in support of the appellant. Rule 24.09 is as follows:

An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the application for continuance may be made orally.

Missouri Rules of Court 1993, Rule 24.10 specify the contents of said motion. Further, the state did not consent to this motion being orally made. The reason for this rule is obvious, it permits the trial court to pass on the merits of the request. The failure to comply with rule 24.09 is sufficient reason to deny the request for a continuance. State v. Diamond, 647 S.W.2d 806, 808 (Mo. App. 1982). Even if the application had been in writing whether or not an application for continuance should be granted is within the trial court's discretion and the trial court's decision, absent a strong showing of abuse will not be disturbed on appeal. State v. Casey , 683 S.W.2d 282, 285 (Mo. App. 1984). The circumstances herein do not rise to an abuse of discretion.

Appellant's point I is denied.

For his point II, appellant alleges the motion court erred in denying his 29.15 motion because his trial counsel was ineffective since he did not object to appellant's statement to police or the state's closing argument. Appellant alleges that he cannot read and that his trial counsel was ineffective for not moving to suppress the statement he gave to the police which was reduced to writing. The motion court's rejection of this uncorroborated allegations was not clearly erroneous. Appellant also alleges he was not properly given his Miranda rights, again without substantiation. The motion court found appellant was advised of his Miranda rights before making any statements and that he executed a written acknowledgement of this fact.

The motion court determines the credibility of witnesses and it may reject testimony even if no contrary evidence was offered. Pool v. State , 670 S.W.2d 210, 211 (Mo. App. 1984). Randy McMillen, a Columbia police officer who investigated this case, stated he had read the appellant his rights from "the Miranda warning card." We must defer to the motion court's determination of credibility of the witnesses. Perkins v. State , 750 S.W.2d 594, 596 (Mo. App. 1988).

By alleging that the motion court was clearly erroneous in its treatment of appellant's uncorroborated facts the movant strains our credulity. It is obvious from the record that appellant's trial counsel was not ineffective in failing to move to suppress appellant's statements. It is not ineffective assistance of counsel if counsel does not make a non-meritorious objection. Shaw v. State , 686 S.W.2d 513, 516 (Mo. App. 1985); Sidebottom v. State , 781 S.W.2d 791, 799 (Mo. banc 1989) cert. denied , 497 U.S. 1032, 110 S. Ct. 3295, 111 L. Ed. 2d 804 (1990).

The appellant has the duty to establish 1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances and 2) that he was prejudiced by this failure. Strickland v. Washington , 466 ...

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