author: WASSERSTROM, Presiding Judge.

text:
    CITY OF LAKE LOTAWANA, a Municipal Corporation, et al., Appellants, v. George W. LEHR et al., Respondents.
    No. KCD 27038.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Motion for Rehearing and/or Transfer Denied Oct. 6, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Harry P. Thomson, Jr., John R. Caslavka, Jack L. Campbell, Paul Crider, Jr., Kansas City, for appellants.
    Stanley Christopher, County Counselor, Wm. D. Cosgrove, Special County Counsel- or, Kansas City, for respondents George W. Lehr, and others.
    Max W. Foust, Duke W. Ponick, Jr., Morris, Foust, Moudy & Beckett, Kansas City, for respondent Tri-Shel Enterprises.

      Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

From the grant of a special use permit by the Jackson County Board of Zoning Adjustment, the opponents filed a petition for review in the Circuit Court. That court affirmed the administrative agency action, and the opponents appeal now to this court.

Tri-Shel, a joint venture, initiated these proceedings by filing three related applications. The first of these, application R-237, sought a rezoning of approximately 1677 acres in eastern Jackson County from District D Agricultural, to reclassify 1375 acres to District A First Dwelling House, while 156 acres would be rezoned to Districts B and C for multi-family housing, and 146 acres would be rezoned to District F General Business. The second application, S-267, sought a special permit for the construction and use of a golf course on 493 acres. The third application, S-266, sought a special permit to remove limestone by mining from below the surface of a portion of the total acreage and to use the resultant subsurface space for the purpose of underground commercial storage and offices.

Hearings, as required by the Jackson County Zoning Order, were held on all three applications before the County Planning Commission. Extensive evidence was given in support of these applications by the applicant’s “Development Team” consisting of Ralph H. Ochsner, a professional city and urban planner, who served as the planning and development co-ordinator; Elmer M. Miller, a professional engineer who was charged with development of water supply and sewers for the project; David E. Lovelace, charged with planning for development of the golf course; James J. Scott, a mining engineer whose function pertained to the contemplated underground rock mining; Donald M. Duncan, a professional engineer who specialized in soil and foundations; and Harold L. Fridkin, charged with the legal and organizational duties. This Development Team testified generally that the applicant proposed to create a three dimensional project. On the surface, the development would consist of single family and multi-family housing, a golf course, and a shopping center. The ultimate housing potential was projected as a total of 10,900 dwelling units. Underground, the initial stage of development would consist of removal of Bethany Falls Limestone exclusively by underground mining, using what Scott described as the rib and pillar method. The mine would have an entrance which would not be visible from the road. A distinctive feature of the proposed plan prohibits any mining unless there is a minimum of 30 feet of upper formation rock cover. After sufficient underground space has been developed by removal of rock, the rental of underground space would be undertaken concurrently with further mining. The underground area would provide space not only for storage and offices, but also for underground parking and subsurface roadways.

These witnesses further testified that the total investment projected for the entire development would be approximately $300-500,000,000. Financing had been arranged prior to the time of hearing before the Planning Commission, but all plans contemplated the availability of substantial cash flow from the underground development which would commence somewhat prior in time to the surface development, with both thereafter continuing concurrently. Testimony on behalf of the applicant was that approximately 750,000 to 1,000,000 tons of rock could be removed annually for an eventual total income of $50-70,000,000 from the sale of rock; rental of underground space was projected to produce an additional total of $50-60,000,000.

Extensive opposition testimony and petitions were presented by the City of Lake Lotawana which is located in close proximity to the proposed project, by the Lake Lotawana Association and by numerous residents both of Lake Lotawana and other properties close by. The opposition was premised upon fears of blast damage from explosives to be used during the course of mining, increase in noise, production of dust, water pollution, increased traffic, and loss of the residential and recreational character of the area. The opponents testified as to the fine quality of existing homes, with value up to $225,000. The opponents also offered the testimony of real estate appraisers who testified that the operation of a rock quarry, whether or not underground, would result in blighting the value of neighboring residential property.

At the close of the evidence heard by it, the Planning Commission recommended approval of S-267, having to do with the golf course; recommended a change of zoning, but to an extent considerably different from that requested in R-237; and recommended denial of S-266 pertaining to the mining and underground development.

The hearing by the County Court on rezoning application R-237 was held just pri- or to the effective date upon which the new Jackson County Legislature was to come into existence, and concurrently the County Board of Zoning Adjustment (consisting of the same membership as the County Court) took up for consideration the other two applications. These members sitting as the County Court approved rezoning application R-237 as requested with minor modifications not here in question. Then, sitting as the Board of Zoning Adjustment, these members granted by a majority vote special use permit S-266 for a period of 50 years, although the permit as granted provided permission only to operate a quarry and made no mention of underground storage or underground offices which had been requested in the application. The Board also approved unanimously application S-267 pertaining to the golf course.

In the Circuit Court, no issue was raised as to anything other than the grant of the S-266 special use permit. As to that, the Circuit Court approved the action of the Board of Zoning Adjustment, pursuant to a finding that the Board’s order “is supported by competent and substantial evidence upon the whole record and the Court is satisfied that the Board did not abuse its discretion nor act in an arbitrary or capricious manner in granting the permit.”

I.

On this appeal, the first point raised by the opponents to Special Use Permit S-266 is a claim that the Board order was void because it in effect granted spot zoning. This point fails because it mistakes the nature of the rule prohibiting spot zoning. Spot zoning occurs when the legislative body undertakes to amend zoning classification so as to give special and undeserved preference to one small tract which is different from that given to neighboring like property. As stated in State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934, 937 (1951):

“The term ‘spot zoning’ is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance.”

No amendment to an existing zoning ordinance is involved here, nor is there any reclassification which could be considered as an indirect attempt to rezone. Rather, the action taken by the Board of Zoning Adjustment was merely the exercise of an administrative discretion expressly granted to it by the enabling act and the zoning ordinance. State ex rel. Manchester Improvement Co. v. City of Winchester, 400 S.W.2d 47, 48 (Mo.1966). Section 64.281-3 of the statute (all statutory references in this opinion being to RSMo 1969) authorized the county to adopt regulations for the granting of special uses in a specific district or districts because of the peculiar nature of the uses, and in this connection the statute states that the use shall be permitted by a special permit “as a permissive use and not as a rezoning.” (Emphasis added).

Pursuant to that authority, Jackson County did provide in Section 16 of its Zoning Order for special uses, one classification being for “[qjuarries, mines, sand or gravel pits or excavations, for the purpose of removing, screening, crushing, washing or storage of ore, clay, stone, gravel or similar materials.” The grant of such a special permit is subject to certain special requirements. However, the grant of a special permit is clearly authorized by statutory authority if the requirements are met and the issuance under those circumstances cannot possibly be a departure from the original legislative scheme so as to constitute a “reclassification” within the meaning of the spot zoning prohibition. The only question legitimately for consideration is whether the special requirements of Section 16 have been met. This is the subject of the next points on appeal about to be discussed.

II.

The opponents’ second point is that the applicant has not met the requirement of Section 16 of the Zoning Order “that the proposed use will not injure the appropriate use of the neighboring property.” This point misquotes the requirement of Section 16, which actually is that the special use must not in the judgment of the Board “seriously” injure the appropriate use of neighboring property. Disregarding this misquotation and applying the correct standard, the record shows a compliance with the requirement in question.

The Board found that the issuance of Special Permit S-266 “will not seriously injure the appropriate use of neighboring property, and will conform to and is within the scope, intent and purpose of the Zoning Order of Jackson County, Missouri.” The parties agree that the only question now properly to be considered with respect to this matter is whether that finding is supported by competent and substantial evidence.

The opponents claim that the Board’s findings are not so supported. To test the validity of that claim, a review becomes necessary of the evidence bearing on the various factors of claimed injury.

1. Dust. Mining engineer Scott testified that dust from blasting would be “contained almost in total within the mine.” Micro-sized particles, invisible to the naked eye, would be emitted from the air shafts but would pose no problem to Lake Lotawa-na residents, since much more dust comes from their roads. No pollution would come from the air shafts.

A surface crusher will be located on the site, but it will be enclosed and designed so that it will not be unsightly nor create any dust problem. No asphalt nor concrete plant will be at the site, but instead the crushed limestone will be hauled elsewhere for processing. All haul roads will be hard surfaced and the truck loads will receive treatment.

The only evidence introduced by opponents having to do with this subject related to existing quarries which were developed and are being operated on a basis different from the one described by applicant’s experts. On the basis of all the evidence, the Board could reasonably conclude that this project will not generate dust to the extent of seriously injuring use of the neighboring property.

2. Vibrations from Blasting and Mining. The effects on the land directly to the north and west of the mining area call for primary attention, since the land to the south and east is part of the 1677 acre tract owned by applicant. The mine will have only a half-mile radius from the entrance, and no neighbor has a residence within this half-mile range. The nearest residence on Milton Thompson Road is 500' from applicant’s property line. Because of inadequate surface rock coverage, mining all the way up to the property line is not anticipated. The contemplated mine face would be 1000 ' or more away from any existing residence. The permit as granted prohibits blasting within 500 ' of the boundary line, so that all blasting will be at least 1000' away from any existing residence on neighboring property.

Geophysicist Rechtien stated the property 500' away from the blast would feel “a ground displacement * * * equivalent to a thickness of the human hair.” Tests conducted at the site indicated that an instrument would not record any vibrations 1000 ' away. An underground blast of that distance would be neither felt nor heard and such blasts would pose “absolutely no danger to existing structures” or to future structures. Scott added on this subject that 99% of the time landowners within 500-1000 ' of the property line would not hear or feel the “thump” of air displacement from blasting; the 1% possibility occurs only with an unusual weather condition, temperature inversion. Blasting during such a weather condition is prohibited under the special use permit.

Ochsner, applicant’s chief planner, testified that a fairly high noise level exists at a crusher site, but would be of no real concern a half-mile away. The noise, however, would concern applicant itself and for that reason the crushing equipment will be housed and electric rather than diesel motors will be used.

The opponents offered no affirmative evidence to show adverse effects to them from blasting or noise. The Board was justified on the whole record in concluding that there was no serious injury threatened to the opponents from this source.

3. Water Pollution and Sewage. Civil engineer Miller testified that water run-off into Lake Lotawana can be controlled. State law prohibits seepage or effluents from sewage plants from entering a lake, and requires a three-cell lagoon, standby power generators or holding reservoirs, and silt control. Miller testified that everything would be done necessary to conform to those State regulations.

Scott also testified that there would be no water problem from operation of the mine. The entrance is on a downward incline into the mine so that any underground water, drill water or dust pressure water will be trapped in the mine. This makes a naturally controlled system insuring that no effluent is put into the stream system and that there is no gravity run-off. Water developed in the mine space through processing or seepage will be pumped to temporary silt catchment basins and water coming toward the mine entrance will be drained into the proposed lake. Some overflow from the lake into Lake Lotawana may occur with a heavy rainfall, but the water coming out of the mine would be clear and nonpolluting.

Applicant will pay for the sewer system that is to by-pass Lake Lotawana.

The opponents offered no affirmative evidence showing that the proposed project will create water pollution or sewage danger. The Board was justified in concluding that there was no serious injury threatened to the opponents from this source.

4. Traffic. Ochsner testified that initially about 277 truck trips per day would be made (including both loaded and empty, returning, trucks) and that at maximum production about 554 trips would be made, with the average being 416 trips, 52 per hour if made over an 8-hour day. Based on these figures, the trucks would utilize 2% of the existing traffic capacity if they made all trips during one 8-hour period and used only Highway 7; this will decline to 1% if and when they use Highway 50. Ochsner concluded that “the addition of the truck traffic does not represent any particular problem” in terms of total traffic capacity.

As for operational problems at intersections, applicant agrees to install acceleration lanes, left-turn lanes, traffic devices, whatever may be reasonably required, at its own expense. This is incorporated as a condition of the permit granted. Applicant would agree to controls involving times of truck traffic, routing, speed and weight.

The opponents introduced no evidence to the contrary, other than their reliance upon a factor allegedly shown by State Highway Department traffic statistics. Opponents state in their brief that “truck traffic generated from the opening of the mine would triple the existing traffic on Highway 7.” That statement is inaccurate. The projected mine traffic would triple the existing truck traffic, raising the “less than 250” trucks per day by, on the average, 416, for a total of 666 trucks per day.

Based upon the record as a whole, the Board was justified in its conclusion that no serious injury to neighboring property would threaten by reason of increased traffic.

5. Land Values. This is the issue to which the great bulk of the opponents’ testimony was directed and on which their argument in this court is concentrated. They produced at the administrative hearings a number of real estate brokers, appraisers and developers who testified that people just do not want to buy land around rock quarries, that generally no market exists for houses built on' the surface of an area later undermined, that it would be hard to sell houses built within the 1677 acre tract, that rock quarries generally depress the value of adjacent property, that applicant’s mine would have a detrimental effect on existing property values, that the mine would be a “blight” on the area and that the proposed golf course and lake would help increase land values, but would not off-set the negative psychological impact of a rock quarry.

The weight to be given opinion evidence is for the trier of fact, and the Board, which was the trier of the facts here, was not bound to accept the above testimony. Conner v. Herd, 452 S.W.2d 272 (Mo.App.1970). That testimony was subject to at least some discount, in view of the admission by one of the opponents’ experts to the effect that “there is just no way as far as I am concerned to determine [the percentage by which neighboring property value will be depressed] because there has never been a rock quarry put in on a piece of ground like this in Jackson County * * there is no experience to evaluate it on.”

Moreover, the testimony given by the opponents’ witnesses was directly contradicted by Ochsner who testified: “[w]e don’t concede that there will be any decrease in values and obviously if they should act favorably upon our request we will be increasing their values.” Ochsner’s testimony alone constituted competent and substantial evidence to support the Board’s conclusion that there would be no serious injury to the opponents from loss of land value. Even if the opponents have introduced substantial and competent evidence to the contrary, that would afford no basis for invalidating the Board’s action. The test is whether the Board’s finding is supported by competent and substantial evidence; if it is, then the substantiality of contrary evidence is immaterial. Hanebrink v. Parker, 506 S.W.2d 455, 458 (Mo.App.1974).

After considering all of the evidence, the Board specifically found that the proposed use will not seriously injure the appropriate use of neighboring property. After reviewing the record, the trial court found the Board’s order “is supported by competent and substantial evidence upon the whole record.” The review of the record by this court produces the same conclusion.

III.

The opponents argue next that the Board exceeded its jurisdiction in granting permission for use of the underground area for office and storage space. They point out that Section 16 of the Zoning Order authorizes special permits for only 22 specified uses and that storage and offices are not covered within those 22 specifications. The trouble with this argument is that the Board has not authorized storage or offices in the underground space. Although the application did request permission for these additional uses, the permit granted limited the use permission simply “to operate a quarry.”

True enough, the permit requires as a condition the implementation of the plans, specifications and provisions of the Site Evaluation and the Operating Plan filed by applicant. The Operating Plan does provide for the ultimate development of the underground space for storage and offices, and applicant’s evidence emphasized that this secondary use constitutes an important and inseparable part of the whole plan. However, this secondary use obviously cannot be made until the underground space is produced by the removal of rock, and the Operation Plan states that the underground space will be opened for secondary usage at a rate of approximately 32 acres per year. The Plan further states “it is anticipated that building use of developed [underground] space can commence within five years of the initial mining sequence.”

Study of the Board’s order makes it quite clear that it does not currently authorize any subsurface use other than removal of rock. When the applicant approaches the time when it is ready to begin rentals of underground space, which is estimated to be at least five years after commencement of mining, then applicant will have to apply for some further permission to engage in the storage and office operation. This interpretation of the Board’s order is directly supported by a colloquy between one of the opponents and Judge Bolger during the course of the hearing before the Board:

“MR. COOLEY: I am Bob Cooley. I am a lot owner at Lake Lotawana. I would like to direct this question to the proponents on this. It sounds like, to me, that it is kind of a secondary issue in this thing. They are not only asking the Zoning Board for zoning for a rock quarry here, but obviously, the intention of this is to derive an industrial park there, too, underground. Is this the intent of this? In other words, we are not only going to have the rock quarry, but ten years from now we will have an industrial park.
“JUDGE BOLGER: The zoning as requested by Tri-Shell [sic] and Mr. Counselor, correct me if I am wrong, certainly would not permit industry as requested by the applicant. Am I correct?
“MR. LAMBERT: That is correct.
“MR. COSGROVE: Right.
“JUDGE BOLGER: In other words, it would appear to me as though that if S-266 was recommended favorably by this body, then at a later point in time — I have no idea when, ten years, or fifty years from now — that these applicants or others then would perhaps be coming in and asking for this proposed industrial zoning. This was not being considered.”

The present permit, No. S-266, in no way authorizes, directly or by implication, the use of the underground space for anything other than removal of rock.

IV.

For their next point the opponents contend that the grant of this special use permit under Section 16 of the Zoning Order is beyond the authority granted under the enabling act, § 64.281-3. That statutory section provides that counties may adopt regulations for special uses which cannot be generally permitted in a specific district or districts because of the peculiar nature of the uses. The statute goes on that “[t]he uses shall be limited to those which, if placed, specified or generally permitted in a specific district or districts, would pose undue regulatory difficulties.”

The opponents point out that Section 15 of the Zoning Order establishes District H Heavy Industrial District in which there is permitted generally “Stone quarries, rock crushers.” They proceed to argue that the listing of a stone quarry as a general use permitted in District H demonstrates that a general use can be generally permitted “without posing any undue regulatory difficulty” and that this, therefore, bars the same use as being the subject of a special permit.

The conclusion sought by the opponents does not follow from its premises. It must be noted that § 64.281 contemplates that any given special use may be permitted in “a specific district or districts.” The inclusion of quarry use in District H therefore did not exhaust the zoning power of the county. It still retained the further right to also permit quarrying in one or more other districts. While the Jackson County Court found that there was no undue regulatory difficulties in allowing quarrying in District H Heavy Industrial District, that did not at all signify that there might not be undue regulatory difficulties in allowing that same use in districts designated generally for higher uses. There is no inconsistency in the County Court’s determination that quarrying can be permitted generally in District H without regulatory problems, but that such problems do exist in permitting that use in other districts. It is therefore entirely appropriate to provide for the general quarrying use in District H and at the same time to provide for special permits to conduct that use in other districts.

V.

The opponents argue next that the Board was without jurisdiction to grant the permit because the applicant is not a legal entity capable of holding title to real estate and had no interest in the 1677 acres affected. The first part of this argument, based on an alleged legal incapacity by applicant to hold title, is mistaken. Section 358.080-3 provides that “[a]ny estate in real property may be acquired in the partnership name.” The effect of this statute is recognized as applying to a joint venture, which is not essentially different in character from a partnership, in Grissum v. Reesman, 505 S.W.2d 81, 87 (Mo.1974).

The factual part of their argument, that there is no direct proof that applicant actually held title, is also mistaken. They argue that a direct statement as to applicant’s ownership by applicant’s counsel at the commencement of the Board hearing should not be accepted as proof, on the theory that a statement by counsel is not evidence. However, like evidence in the form of sworn testimony was given by applicant’s witness Ochsner. Moreover, in addition to Ochsner’s testimony there are repeated references throughout the record to facts and actions which are consistent only with the applicant being the owner of the 1677 acres in question. In Tramonti v. Zoning Board of Review of Cranston, 93 R.I. 131, 172 A.2d 93, 95 (1961), a lack of formal proof of ownership by the applicant was held not to be fatal, on the ground that the transcript was replete with evidence of conduct consistent only with ownership. Exactly the same thing is true here.

The opponents further argue that the record does not show whether title is in the name of the applicant as a joint venture or whether it is in the individual names of the two joint venturers. It is wholly immaterial which of those two situations is actually true. Section 358.100 provides that title to partnership real estate may be held by the partnership either in its own partnership name or in the individual names of one or more or all of the partners.

VI.

For their final point, the opponents say that the order fails to adequately regulate and restrict the operation of the proposed mine. Section 16 of the Zoning Order does require that a special use permit “shall set out regulations, restrictions, limitations and termination date so that reasonable control may be exercised over said uses.” The order issued here by the County Board did comply with this quoted requirement. Special Use Permit S-266 sets out restrictions, as follows:

“This special permit is and shall be subject to the following regulations, restrictions and limitations are [as] hereinafter set out and are provisions adopted as conditions for this permit:
(a) There shall be no blasting within 500 feet of the boundary line as described in the legal description set out in this order.
(b) Blasting shall be conducted so that no concussion is perceptible to adjoining, abutting and opposite property owners; seismograph reports shall be submitted to the Planning Director monthly and the daily blasting schedule and seismograph reports shall be available for inspection by the Planning Director.
(c) No blasting shall be conducted when the atmospheric conditions are such that sound or shock waves are easily conducted or transmitted, such as occur when there is a condition commonly known as a temperature inversion.
(d) Signalization, traffic controls and additional traffic lanes as may be reasonably required by the County shall be installed and constructed at the cost of applicant.
(e) That applicant shall file an annual status report with the Planning Director concerning all surface and subsurface development and plans for development, to enable the Director to determine if applicant is in compliance with restrictions, regulations and limitations of this Order and to insure the orderly development of the surface and sub-surface within the comprehensive plan as submitted by applicant.
(f) The quarrying operation shall be conducted in compliance with all existing federal, state and local laws and regulations affecting pollution of air and water.
(g) That the granting of this permit is further subject to the implementation of the plans, specifications and provisions of the Site Evaluation and Operating Plan filed by applicant and it is hereby made a part hereof as though set out in its entirety.”

These restrictions are comprehensive and specific. An annual report is required of the applicant to enable the zoning authorities to determine that the applicant has remained in compliance and to insure “the orderly development of the surface and subsurface within the comprehensive plan as submitted by applicant.” This latter requirement must be understood as including not only the Site Evaluation and Operating Plan, but also all of the representations and promises made by applicant’s Development Team in the administrative hearing. The zoning authorities have adequate power to enforce these restrictions. All of the opponents’ objections to the adequacy of these restrictions have been considered in detail and are found to be without merit.

Affirmed.

All concur.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond Augustus KNOX, Defendant-Appellant.
    No. 36108.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 16, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Neil MacParlane, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Raymond Augustus Knox appeals from a conviction of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, §§ 560.120 and 560.135 RSMo 1969. At trial it was also charged that he was a Second Offender within the provisions of § 556.280 RSMo 1969 and after an eviden-tiary hearing the trial court made a finding in accord with the requirements of the statute and sentenced the defendant, following the verdict of the jury and overruling of his motion for new trial, to 15 years in the custody of the Missouri Department of Corrections.

On this appeal Knox contends that the trial court erred in two respects which entitle him to have his conviction reversed and the cause remanded to the trial court for a new trial. His first Point is directed to the denial of the trial court of his motion to suppress the in-court identification of Knox as one of the robbers. His second Point is that the trial court erred in not giving the verdict directing instruction in the form approved by MAI-CR. We affirm.

Defendant, as Knox shall hereinafter be identified, does not question the sufficiency of the evidence to support the verdict of the jury and we may therefore set forth the facts in the light most favorable thereto, disregarding any evidence which does not support it. State v. Stapleton, 518 S.W.2d 292 (Mo.banc 1975).

From the State’s evidence the jury could find that on February 24, 1973, at approximately 4:00 p. m. Joseph Welch and Steve Ehrhart returned to their apartment from some grocery shopping, accompanied by Mark Wiggins. The three carried some groceries into the apartment and put them in the kitchen, after which they proceeded down a hall toward a stairwell. As they were proceeding down the hallway Xantha-mas Sledge, hereinafter referred to as Sledge, came out of one of the bedrooms off the hallway, pointed a gun at them and told them to “freeze.” They did, and while they remained standing in the hallway, a second man — this defendant — came out of the same bedroom from whence Sledge had emerged, and then Sledge and the defendant ushered the three young men from the hallway into the front bedroom where Ehr-hart and Wiggins were tied up with their hands behind their backs. Wiggins was then also tied up and forced to lie on top of his companions. Defendant did the actual tieing and while doing so removed from the bound victims their wallets and watches. Defendant and Sledge then ransacked the apartment, leafing through boxes and emptying drawers while doing so. Both defendant and Sledge were in the apartment with the victims for almost twenty minutes, after which they left the three young men still bound and lying on the floor, making good their escape from the scene of the crime.

At trial both Welch and Ehrhart unhesi-tantly identified the defendant as the robber who tied them up. Wiggins was unable to identify him as one of the culprits. The manager of the sporting goods store also testified that he saw the defendant and Sledge in his store on the 31st day of July, when Sledge purchased a shotgun using Welch’s name and driver’s license. Another employee of the sporting goods store corroborated the testimony of the manager of the store in these respects. Defendant presented alibi witnesses to establish that on the date when the robbery occurred he was at a party at his sister’s home from 12:30 p. m. until 8:00 p. m.

Defendant had filed a motion to suppress evidence prior to trial which was taken up at the outset of the trial out of the presence of the jury. At this evidentiary hearing the prosecutor who conducted the photographic show-up testified that on August 14, 1973, during the course of a preliminary hearing in a magistrate court in St. Louis County on a check charge against Xanthamas Sledge, Joseph Welch identified Sledge as one of the two men who had robbed him on February 24, 1973. The prosecutor was aware of the fact that this defendant had been arrested with Sledge and that the second robber in the Welch robbery had not as yet been identified. Armed with this information, plus the knowledge that the defendant was in the custody of the police charged with riding in a motor vehicle without the owner’s consent, a misdemeanor, §§ 560.175 ¶ 4 and 560.180 ¶ 2, arising out of the arrest of both Sledge and the defendant, and that the defendant would soon be released from police custody, the prosecutor undertook to arrange for a lineup so that Welch could view the defendant to see whether he could identify him as the other robber.

At about 5:00 p. m. the afternoon of the preliminary hearing the prosecutor attempted to arrange a lineup at the St. Louis County Jail where the defendant was in custody, but, due to strenuous objections by defendant’s counsel — at that time one of the public defenders of St. Louis County— to the makeup of the lineup, the three volunteers who had been enlisted by someone in the St. Louis County Welfare Department to participate in the lineup refused to do so. The prosecutor then decided on a photo showup in lieu of the lineup he had initially planned. A photo of the defendant was obtained and seven “mug shots” of other black men were also procured, and the lower portions of the “mug shots” on which the name and descriptions of the person photographed were cut off. In describing the persons portrayed in the photos the prosecutor testified at the evi-dentiary hearing that although some of the persons portrayed had different hair styles, facial hair, and other distinctive features, they were not so different as to be suggestive. Mr. Welch identified the photo of the defendant from among the eight photos shown to him as the photo of one of the men who had robbed him. Mr. Welch also testified at the evidentiary hearing on the motion that he was able to view the robbers during the robbery for approximately 20 minutes, that the faces of the robbers were not covered at any time throughout, and that the robbery occurred during the daylight hours.

The assistant public defender who represented the defendant at the time of the aborted lineup testified at the evidentiary hearing on defendant’s motion to suppress that he made several objections to the other persons who were going to participate in the lineup because of the differing physical characteristics of the men, as compared to the defendant. He testified that he requested that men with features similar to defendant’s be used in the lineup, but this was not done. He also testified that he was threatened with arrest for obstruction of justice by reason of his objections and his efforts to obtain what he considered would be a fair lineup. He requested that he be allowed to be present for any viewing of pictures of the defendant by the victim, and when shown the pictures which were going to be used he stated that he did not approve of the pictures due to the difference in the features of the men. He testified: “First of all I object (sic) because I wasn’t allowed in the room in which there was any showing of the pictures. I pointed out that some of the men in the pictures didn’t look like Mr. Knox. Most of them didn’t. I don’t know that any really did look like him at all. The pictures had black men in them, but they all had like bigger afros, ... I believe one of them was bald. Mr. Knox had sideburns. I don’t believe any of the other pictures were of people with sideburns. Mr. Knox had a relatively Caucasian nose, and many of the other pictures had black people with flatter noses.” He concluded: “I was shown the pictures, and I said you are going to go on with this anyway, and I just acquiesced to what they did.”

The public defender also testified that at one stage of the preliminaries to the photo showup a county police officer passed close by Mr. Welch — “within a foot or two”— with a picture of the defendant in his possession. He admitted that he could not “say for sure” whether Mr. Welch saw the picture, but he didn’t know how he could have missed seeing it. He said that he had seen the picture as it went by and Mr. Welch was looking in the same direction. At the evidentiary hearing defendant’s counsel did not inquire of Mr. Welch while he was on the stand whether he saw defendant’s picture and there is no other evidence in the record to support any finding that he did.

At the conclusion of the evidentiary hearing the trial court denied defendant’s motion to suppress identification testimony. Defendant’s first Point on appeal is directed to what he contends is a violation of his Fifth and Fourteenth Amendment rights under the United States Constitution by reason of the admission into evidence of an overly suggestive pretrial photo identification. He argues that viewed in the totality of the circumstances one must conclude that there was a “suggestive influence by others” in the pre-trial identification of the defendant and there was no substantial “independent basis of identification” to overcome this infirmity in the identification process used here.

The totality of the circumstances to which defendant refers are:

1) the police did not hold a lineup,
2) the police allowed the victim to see the photograph of the defendant prior to the photographic identification,
3) the public defender objected because he wasn’t allowed in the room in which there was any showing of the pictures,
4) the description given by the police to Mr. Welch immediately after the robbery differs in a significantly important aspect from the actual physical characteristics of the defendant,
5) one of the three persons in the apartment at the time of the robbery could not positively identify the defendant as one of the robbers, and
6) there was a lapse of almost six months between the date of the occurrence of the crime and the viewing of the defendant’s photograph.

Both parties rely on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) for the principle that a conviction based on eyewitness identification by photograph will be set aside on that ground alone only where the photographic identification procedure was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification, and that the application of the principle shall be on a case by case basis. Whether a particular photographic identification procedure is a violation of due process depends on the totality of the circumstances surrounding the procedure. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

The first circumstance comprising one of the “totality of the circumstances” in this case which defendant would have us consider is the failure of the police to hold a lineup, even though they had the defendant in custody. This assertion is without merit for at least two reasons. First, there is no constitutional right to a lineup. State v. Haselhorst, 476 S.W.2d 543, 547[3] (Mo.1972). Secondly, the lineup was abandoned because of the objections to its makeup voiced by the public defender who had appeared at police headquarters to represent the suspect and oversee the manner in which the lineup was conducted. The objections of the public defender to the composition of the lineup resulted in the volunteers’ refusal to participate and therefore made the conduct of the lineup impracticable. Defendant will not be heard to complain of the composition of the lineup and also decry the failure of the prosecuting authorities to then conduct a lineup which meets his specifications. The public defender had prevailed in his function as representative of the suspect to make known his objections to the manner in which the lineup was being conducted, but he cannot then preclude the State from some other procedure of identification conducted in a manner which is not impermissibly suggestive. A lineup may serve the purpose of obtaining a prompt release of one wrongfully under suspicion as well as lead to an identification which might culminate in charges being filed and prosecution pursued. We find no merit in this “circumstance.”

The second circumstance — that the police allowed the victim to see defendant’s photo prior to the photographic showup — is a matter of fact dependent upon testimony, which is at best, speculation on the part of the public defender. We conclude that this evidence was for the trier of fact, in this instance the trial court, and we find no error with respect to its finding. We find that this is not a circumstance considered among the “totality of circumstances” of the identification procedure used in this case, calling for a reversal of this conviction.

The third circumstance defendant requests we consider is the exclusion of counsel from the room where the photographic identification took place. This “circumstance” is not presented on Sixth Amendment grounds. At the time of the photographic identification defendant was not charged with the crime of which he was later convicted and from which conviction he now appeals. He was then in custody on another charge and the City of St. Louis Police Department had lodged a “hold” order on him with the County authorities. The testimony of the public defender is that his objections to the manner in which the lineup was going to be conducted and which ultimately caused that procedure of identification to be abandoned brought a threat that if he persisted he would be arrested for obstructing justice. He requested that he be allowed to be present at the photographic identification, and when shown the mug shots which the State was going to use he again made objections to the photographs for the same reasons he had objected to the make-up of the proposed lineup. By this time he had concluded that “they” were going to go on with the photographic identification despite his objections and “I just acquiesced in what they did.”

Assuming, without deciding, whether when a suspect is in police custody under the circumstances outlined.above and he is a suspect in another crime for which he is not then charged, counsel is required or permitted to be present at any identification procedures to assure that they are conducted without suggestiveness which is likely to lead to misidentification, we are then confronted with the question of what part counsel is to play in the identification proceedings. Neither party to this case has cited any authority in this respect nor has our research brought to light any Missouri case setting out guide-lines for counsel or for the prosecutorial authorities in such instances. Whether defendant in this case was entitled to counsel at the identification procedures is a moot question because counsel was present and functioning in a manner he concluded was within the ambit of his duties. We would conclude that any threat of arrest for obstruction of justice was certainly inappropriate under the facts developed at the evidentiary hearing as we read them in this record, where all we have before us are objections to the manner in which the identification proceedings were being conducted and requests that a lineup more representative of the defendant’s physical appearance be constituted. If the public defender’s conduct was anything other than lawyer-like, we have no evidence of that fact before us, although there is some evidence that the discussion became somewhat loud at times.

However, we conclude that this one facet of the circumstances surrounding the photographic identification, alone, does not require that this conviction be reversed and remanded. The same photos to which the public defender made known his objections at police headquarters prior to the conduct of the photographic identification procedure in his absence, were admitted into evidence at the evidentiary hearing on his motion to suppress, were viewed by the trial judge and found to be not likely to result in misidentification by the trial court’s ruling denying defendant’s motion to suppress.

Neither the defendant nor the State has seen fit to file with the clerk of this court the photographs used in the identification proceedings and introduced into evidence by the defendant as his exhibits at the eviden-tiary hearing on the defendant’s motion to suppress, despite the provisions of Rule 81.-15. Although we have authority by Rule 81.12(c) to direct the clerk of the trial court to send to us the original exhibits in the case, we conclude that were there any merit to defendant’s contentions that these photographs were not suitable for photographic identification procedures, his counsel on appeal would have either required the clerk to file them in this court or have sought an order of this court directing that they be so filed. To request that we “second-guess” the trial judge without affording this court the photographs in question is, in our opinion, placing this court in an untenable position.

Defendant has produced no evidence that any inappropriate statements or suggestions were made to Mr. Welch by State authorities in attendance at the photographic showup from which the public defender was excluded. Nor has he shown that the absence of the public defender from the room resulted in a misidentification. We hold, therefore, that under the facts developed in this record the absence of the public defender from the room in which the photographic identification occurred is not one of a “totality of circumstances” requiring a reversal of this conviction.

The fourth circumstance defendant contends should be considered is the description given by Mr. Welch to the police immediately after the robbery, which he contends differs in a significantly important aspect from the actual physical characteristics of the defendant. The characteristic he has reference to is the defendant’s weight.

At the evidentiary hearing on defendant’s motion to suppress, Mr. Welch testified that immediately after the robbery he described the defendant to the police as a Negro male, approximately 30 years of age, five feet eight to ten inches tall, weighing approximately 180 pounds, and stockily built. The difference defendant refers to is the weight. He contends that he never weighed more than 135 pounds.

At the time the trial court ruled on the defendant’s motion to suppress the only gauge he had as trier of fact to determine whether Mr. Welch’s description of the robber was inaccurate to the point that his in-trial identification testimony would be tainted by the photographic identification procedure as to be inadmissible, was the appearance of the defendant as he sat before him in the courtroom some 11 months after the date of the commission of the crime and 5 months after Mr. Welch viewed the photographs. The evidence on which defendant relies did not come into the case until later when the defendant was presenting his case before the jury on the guilt issue, and when his witnesses testified that he never weighed more than 130 pounds. We are asked here to hold that the trial court erred in denying a motion to suppress identification on the basis of evidence which was not before him at the time he made his ruling.

Assuming arguendo, that the trial court did take this evidence into consideration at the time he ruled on defendant’s motion for new trial, we would nonetheless conclude that this circumstance would not require a reversal of defendant’s conviction on the basis of the admission of Mr. Welch’s identification testimony. It would at best go to the weight to be given to that testimony in view of the other physical characteristics of the defendant which defendant does not attack as inaccurate.

Defendant’s fifth circumstance is not directed at any infirmity in the identification of the defendant by Mr. Welch, who was the only one whose testimony was sought to be suppressed by reason of suggestiveness at the photographic identification showup. Mr. Wiggins’ inability to identify the defendant could in no way affect the admissibility of Mr. Welch’s identification of the defendant. All it shows is that one of the three men present at the scene of the robbery was unable to identify the defendant as one of the robbers at trial. Mr. Wiggins’ testimony was not that the defendant was not one of the two robbers; rather it was that the defendant could have been one of the robbers but he was not really sure.

The final circumstance defendant relies on is the length of time—approximately six months—which had passed between the date of the robbery and the photographic identification by Mr. Welch. This circumstance is a legitimate circumstance for consideration but by itself is not alone grounds for reversal.

Having considered the circumstances presented as grounds for finding error in the trial court’s ruling denying defendant’s pre-trial motion to suppress identification and finding them to be without merit, we also conclude that there is in the evidence support for a finding that even had the photographic evidence procedure been im-permissibly suggestive, Mr. Welch had an independent basis of identification other than the photographic showup. He viewed 'the unmasked defendant during the daylight hours for at least five minutes during the twenty minutes the robbers were in the apartment. There is no evidence that Mr. Welch’s identification of the defendant was prompted by suggestive influence from the prosecutor or the police officers. Thirdly, Mr. Welch positively identified the defendant as one of the robbers at the preliminary hearing and again in the courtroom during trial and was subjected to thorough cross-examination on this issue without being shaken in his identification. He testified that he memorized the defendant’s face while the robbery was in progress. We conclude that this evidence meets the tests set out in State v. Parker, 458 S.W.2d 241, 244 (Mo.1970). The exclusionary rule is not applicable where the witness has an independent basis for the identification. State v. Carey, 486 S.W.2d 443, 446 (Mo.1972).

We rule this Point against defendant.

Defendant’s second Point is that the trial court erred in reading to the jury “Instruction No. 5” because it failed to conform with the approved form of MAI-CR 7.62 in that it omitted the general converse paragraph from the instruction and thus constituted prejudicial error.

It is clear that a trial judge is required in a criminal case to give a general converse at the end of a verdict director. MAI-CR 2.04 is the approved instruction for a verdict director for the principal offense. All other MAI-CR instructions relative to specific crimes are patterned after this instruction. MAI-CR 2.04 contains a general converse. The Notes on Use following MAI-CR 2.04 state:

“1. This form must be followed in all verdict directing instructions for the state .
⅜ ⅜ * * 5⅜ *
2. Eighth. A general converse.
A general converse must not be included in the verdict directing instruction (1) where an affirmative defense has been submitted (see MAI-CR 2.30), or (2) in any homicide instruction where both so-called common law homicide and felony-murder are submitted.

In the Foreword of the Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, at page 9, the following appears:

“The Committee also proposed that each verdict directing instruction for the state (with significant exceptions) should conclude with a general converse, though that addition does not eliminate the need for giving a separate converse if requested."

Separate converse instructions are included in the 300 series and are required to be given upon request. This is indicative of the adoption of the committee’s proposal thereby making it mandatory for the inclusion of a general converse in all verdict directors other than the two exceptions noted in the Notes on Use to MAI-CR 2.04.

Rule 20.02(c) states that whenever there is an applicable MAI-CR instruction its use is mandatory to the exclusion of any other form. Rule 20.02(e) further provides that the failure to give an approved instruction in the proper form constitutes error, its prejudicial effect to be judicially determined. From the foregoing we arrive at the inescapable conclusion that since MAI-CR 7.62 was the applicable pattern instruction to be given in this case, the failure to include the general converse as a part thereof constitutes error.

However, at the risk of encouraging further excursions from the approved forms arrived at after long and strenuous labors by the committee and the Supreme Court in drafting and approving these instructions as patterns to be followed in all cases to the end that reversals of convictions on extremely technical grounds because of the phraseology of instructions or factual omissions therein should in the future be avoided and the jurors better understand the issues presented to them, we conclude that this error does not constitute prejudicial error requiring reversal of this conviction on this ground.

We arrive at our holding by reference to Instruction No. 6, a converse correctly following MAI-CR 3.06 which the trial court was required to give because tendered by the defendant. This Instruction conversed each and every affirmative element of the crime enumerated in Instruction No. 5 — the State’s verdict director — commencing with “If you do not find and believe from the evidence beyond a reasonable doubt each and all of the following . . . ” and concluded with “then you must find the defendant not guilty.” (emphasis supplied). We believe that this converse cured the error occasioned by omitting from the verdict director the common paragraph required by MAI-CR 2.04 and the Notes on Use following it. We caution against following this procedure in the future and reiterate that by our holding in this case we do not mean to encourage any individualization of the approved instructions by the trial courts of this State.

Both parties to this appeal direct arguments to the question whether it is prejudicial error for the trial court to give a 300 series instruction to a jury when the party who would ordinarily be the one requesting the instruction objects to it. In the context of this case they direct their argument to the giving of Instruction No. 6.

However, we find it a question not properly before the court in this case and do not consider it, because it was not properly preserved for review despite the fact both parties briefed the question. No objection to Instruction No. 6 is contained in the defendant’s motion for new trial and the instruction was one given by the court, as it was required to do, because tendered by the defendant. The effort to present this issue on appeal apparently arises out of a portion of the record made during the instruction conference. A careful reading of the record by either party would have obviated this effort.

The record contains the following with respect to the instruction conference:

“MR. DEWOSKIN: Your Honor, pursuant to article 20.03 on page, roman numeral number IX of Missouri’s approved criminal instructions, I object to the instructions as given generally, and more specifically object to the instruction containing the property of the verdict directing containing the property containing personal property on instruction number 6. In that it is broader than the information filed by the state, and broader than the proof that could be legally obtained underneath the information filed by the state of Missouri, and I want to object for that reason. I continue my objection into the converse instruction which is a repeat of the elements in exactly the same form and spelling and spot as the verdict director given by the state. I am referring to my instruction number 6, and by giving instruction number 6 I do not waive any error wich (sic) maybe contained in instruction number 5 which was prepared by the state of Missouri.” (Emphasis supplied).

It is apparent from a careful reading of this objection that reduced to its simplest terms it constitutes an objection to Instruction No. 5 on the grounds that it enumerates therein certain items of property which the defendant argues were not included in the information in the case and what defense counsel wishes to make clear is that by incorporating that same property in his converse instruction which he tendered to the trial court he does not intend to waive any objection as to Instruction No. 5 on that score.

We conclude that counsel who prepared this case on appeal and who was not trial counsel was misled by the manner in which the objection was commenced by reference to Instruction No. 6 whereas in fact it was meant to refer to the state’s verdict-director, Instruction No. 5, as a thoughtful reading of the objection made at the time demonstrates. Our conclusion in this respect is buttressed by the fact that it is these same factors contained in Instruction No. 5 that defendant preserved in his motion for new trial but abandoned by not briefing that contention in this court. Rule 28.02. Finally, Instruction No. 6 was defendant’s own instruction tendered to the trial court and the trial court was required to give it. MAI-CR 3.02 Notes on Use.

We rule this Point against defendant.

The judgment of the trial court is affirmed.

CLEMENS, P. J., and STEWART, J., concur.


author: DOWD, Judge.

text:
    Willie NORWOOD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36195.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 16, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.
    Application to Transfer Denied Dec. 8, 1975.
    Charles D. Kitchin, Public Defender, G. Jeffrey Lockett, Michael Guerra, Asst. Public Defenders, St. Louis, for movant-appel-lant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard Heidenry, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

Movant pleaded guilty to charges of first degree murder and forcible rape and received two concurrent life sentences. He appeals from the trial court’s dismissal of his Rule 27.26 post-conviction relief petition without an evidentiary hearing. Rule 27.-26(e).

On this appeal, movant raises two Points Relied On. Movant’s first contention on appeal is that his guilty plea was coerced by the state’s use of perjured testimony in a co-defendant’s trial that resulted in the imposition of the death penalty on the co-defendant. See State v. McClain, 498 S.W.2d 798 (Mo. banc 1973). This point was not raised by movant in his Rule 27.26 petition and thus is not before us for review. Shubert v. State, 518 S.W.2d 326 (Mo.App.1975); Griffith v. State, 504 S.W.2d 324 (Mo.App.1974).

Movant’s second contention is that he was denied effective assistance of counsel because the latter failed to investigate and explore properly the mental competency of his client to enter the guilty pleas. In July, 1971, after he had been charged, movant underwent a mental examination at the Fulton State Hospital to determine whether he had a mental disease or defect that prevented him from understanding the proceedings against him or assisting in his own defense. § 552.020 RSMo 1969. The psychiatric report, which concluded that mov-ant was mentally competent to stand trial, was signed by a staff physician who was a doctor of osteopathy. Movant contends his trial attorney should have questioned the validity of the psychiatric examination because it was not signed by a psychiatrist.

Section 552.020(2) requires that a person sent to a state facility of the division of mental diseases for a mental examination shall be examined “by one or more physicians whom the superintendent shall designate.” The staff physician who signed movant’s psychiatric report was a “physician”, because osteopaths are specifically defined as physicians under Missouri law. § 334.021 RSMo 1969.

Movant relies on State v. Terry, 472 S.W.2d 426 (Mo. banc 1971), vacated in part on other grounds, 408 U.S. 940, 92 S.Ct. 2876, 33 L.Ed.2d 763 (1972). In that case defendant questioned the validity of a psychiatric examination because it allegedly was conducted under § 552.020 not by a board-certified psychiatrist but by three doctors of osteopathy who were unqualified to make psychiatric examinations. The Missouri Supreme Court concluded that the evidence showed one of the participating doctors was a board-certified psychiatrist. The court added (at p. 429): “We do not reach or rule the question of whether the statute requires an examination by a board-certified psychiatrist.” In the instant case movant has presented no evidence whatsoever that the examining physician was not qualified to conduct a psychiatric examination. Mindful that the osteopath who signed the psychiatric report was a physician under Sections 552.020(2) and 334.021, we find that the report was prepared by an authorized examiner under the statute.

Another factor relevant to this ineffective counsel charge is whether movant’s trial counsel himself, despite the results of the mental examination, suspected that movant was incompetent. Miller v. State, 498 S.W.2d 79 (Mo.App.1973). At the guilty plea hearing the court extensively explored movant’s mental competency to enter his guilty pleas. The court first asked movant whether he felt he was suffering from any kind of mental disease or defect, and the movant gave a negative reply. The court then reviewed the findings of the psychiatric examination. The movant’s trial counsel stated that he had read the report, and further noted that in his dealings with mov-ant the latter never had any difficulty communicating with him or understanding anything about the case.

Finally, the trial judge conducted an extremely lengthy and thorough questioning of movant to ensure that he knew the nature of the charges against him and the consequences of his guilty pleas. The court’s extensive questioning of movant left no doubt in the mind of the trial judge and in ours that at the time of his guilty pleas movant had the requisite mental competency both to consult with his lawyer with a reasonable degree of understanding and to rationally and factually understand the proceedings against him. Stroder v. State, 522 S.W.2d 77 (Mo.App.1975).

Under the circumstances of this case, the trial counsel did not demonstrate ineffective assistance of counsel in failing to object to the movant’s psychiatric report because it was submitted by an osteopath. Since the examination on its face met the literal requirements of § 552.020 RSMo 1969, trial counsel was not obliged to contest the results. Also, the trial counsel’s experience with movant both before and during the guilty plea proceedings evidently convinced him of movant’s mental competency. With no reason to doubt either mov-ant’s competency or the validity of the psychiatric report, trial counsel was not ineffective in failing to question the psychiatric report because it was submitted by an osteopath.

The trial court was not clearly erroneous when it dismissed the petition without holding an evidentiary hearing. Rule 27.26(e) and (j).

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.