State ex rel. Schwebe v. Campbell, No. 63959
| Decision Date | 31 August 1993 |
| Docket Number | No. 63959 |
| Citation | 878 S.W.2d 827 |
| Parties | STATE of Missouri, ex rel. Karl SCHWEBE, Jr., Relator, v. The Honorable Robert L. CAMPBELL, Respondent. |
| Court | Missouri Court of Appeals |
Michael M. Frank, St. Louis, for relator.
Robert P. McCulloch, Pros. Atty., Daniel E. Diemer, Asst. Pros. Atty., St. Louis County, St. Louis, for respondent.
We issued a provisional writ in prohibition to consider whether respondent circuit judge abused his discretion in "prohibiting defendant [relator] being in the presence of any of the children witnesses" in a discovery deposition to be taken in the case of State v. Karl Schwebe, Jr., Cause No. 92CR-006618. Relator also complained that the court abused its discretion in denying his motion for reconsideration.
A writ of prohibition is an appropriate remedy if an order is "a clear excess of jurisdiction or abuse of jurisdiction such that the lower court lacks the power to act as contemplated." State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862 (Mo. banc 1986); State ex rel. Lichtor v. Clark, 845 S.W.2d 55, 59 (Mo.App.W.D.1992).
Criminal Rule 25.12 authorizes depositions in criminal cases to be governed by the rules relating to the taking of depositions in civil actions. Civil Rule 56.01(c) authorizes protective orders which justice requires to protect a party or person from "annoyance, embarrassment, oppression." However, protective orders are subject to a requirement that such orders may be granted only "for good cause shown." We now make our provisional writ permanent because no ground for relief was stated and no cause shown. The express provisions of the rule foreclose any presumption of right action by respondent circuit judge.
Relator stands charged with three counts of sodomy proscribed by § 566.060.2 RSMo 1986. The prosecuting witnesses are three minors who are 15 or 16 years of age. Depositions of these three, and other witnesses, were scheduled and begun. During the deposition of A.K. the prosecuting attorney objected to the presence of defendant and asked that he be excluded. There is no claim relator committed any acts constituting misconduct at the deposition. The depositions were suspended while counsel appeared before respondent circuit judge.
The state filed a handwritten motion on a court memorandum form for a protective order. The motion did not allege a single ground to support the request for defendant's exclusion or for any lesser sanction. The motion was presented in a conference in chambers. There was no evidence adduced and no record made. The requirement of Rule 56.01(c) for a showing of good cause was not satisfied. As a result, the order is both unauthorized and arbitrary. It could not be reviewed on the merits.
The state relies on Rule 56.01(c)(5) which sets forth a ground which...
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