Padberg v. State

• Decision Date: 28 February 1989
• Docket Number: No. 54843,54843
• Citation: 782 S.W.2d 398
• Parties: Stephen L. PADBERG, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 398

782 S.W.2d 398

Stephen L. PADBERG, Appellant, v. STATE of Missouri, Respondent.

No. 54843.

Missouri Court of Appeals,

Eastern District,

Division One.

Feb. 28, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied April 3, 1989.

Gary L. Robbins, Public Defender, Barbara J. Martin, Asst. Public Defender, Jackson, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

CRIST, Judge.

Movant appeals the denial of his 27.26 motion without an evidentiary hearing. We affirm.

Movant was convicted of second degree murder for the death of his ten-week-old son. He was sentenced to twenty years' imprisonment. The conviction was affirmed in State v. Padberg, 723 S.W.2d 43 (Mo.App.1986).

On appeal, movant asserts the trial court erred in dismissing his motion without an evidentiary hearing because the motion set forth sufficient facts to show ineffective assistance of counsel. We will discuss each of movant's allegations in turn.

Movant first alleges his counsel was ineffective for failing to object when the State called two witnesses to testify who were inside the courtroom during previous testimony in violation of the court's order excluding witnesses.

The record reflects the court had ordered the exclusion of witnesses from the courtroom. However, the decision of whether to permit a witness to testify who has violated an order of exclusion is within the discretion of the trial court. State v. Pollock, 735 S.W.2d 179, 183 (Mo.App.1987). Although defense counsel did not object to the witnesses testifying, the issue was raised and considered by the trial judge. The judge found the State had no knowledge the witnesses were violating the order and allowed the testimony. See State v. Fortune, 607 S.W.2d 451, 453 (Mo.App.1980) (exclusion of witnesses order should not be applied to deprive a party of a witness' testimony unless the violation occurred with the "consent, connivance or procurement" of the party for whom the witness was called).

The motion is barren of facts stating how movant was prejudiced by defense counsel's failure to object in this instance. "A mere failure to object to testimony does not establish that trial counsel was ineffective. The failure to object must go beyond mere error or mistake in trial strategy or judgment and must be of a character to result in substantial deprivation of [movant's] right to a fair trial." Brewster v. State, 577 S.W.2d 911, 914 (Mo.App.1979). Movant's allegation is, therefore, insufficient to entitle him to an evidentiary hearing.

Movant next states he was entitled to an evidentiary hearing because he alleged his attorney failed to call a psychiatrist who had treated movant subsequent to his arrest. He alleged the psychiatrist "could have testified that movant did not have the personality traits of a person likely to commit this type of crime." Movant failed to allege his attorney had knowledge of this witness or the witness was available to testify at his trial; therefore, his allegation was insufficient to entitle him to an evidentiary hearing. See Mathenia v. State, 752 S.W.2d 873,...