State ex rel. Steeley v. Oswald

FACTS RICHARD B. TEITELMAN, Judge. Relator Samuel Steeley is charged with felony offenses of statutory rape in the second degree, section 566.034, RSMo 2000, statutory sodomy in the second degree, section 566.064, and incest, section 568.020. Relator’s counsel made an oral motion to allow a certified court reporter to record the proceedings at relator’s expense. Relator further agreed to provide the state with a free copy of the record. Respondent overruled the motion. Relator seeks a writ of prohibition to prevent the circuit court from overruling his motion to record the preliminary hearing. ANALYSIS A writ of prohibition is appropriate whenever: 1) the trial court exceeds its personal or subject matter jurisdiction; 2) the trial court exceeds its jurisdiction or abuses its discretion to such an extent that it lacks the power to act as it did; or 3) there is no adequate remedy by appeal for the party seeking the writ and the “aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision [of the lower court].” State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994). Relator is facing serious felony charges. Relator requested that the respondent allow him to make a record of the preliminary hearing so that relator could fully defend himself against the charges. Relator will suffer considerable hardship if he is prevented from recording the hearing. If the hearing is conducted but not recorded, relator will have been deprived of a key opportunity to develop his defense at trial and fully pursue possible avenues of appeal. Relator will, therefore, suffer considerable, irreparable hardship if a writ is not issued. It was an abuse of discretion for the respondent to deny relator the opportunity to, at his own expense, retain a certified court reporter to transcribe the preliminary hearing. The preliminary writ of prohibition is made absolute. WHITE, C.J., WOLFF and STITH, JJ., concur. PRICE, J., concurs in separate opinion filed. CALLAHAN, Sp.J., dissents in separate opinion filed. LIMBAUGH, J., concurs in opinion of CALLAHAN, Sp.J. RUSSELL, J., not participating.