Chambers v. State , 781 S.W.2d 116 ( 1989 )

CRIST, Judge.

Movant appeals the denial, without an evidentiary hearing, of his motion to vacate, reduce or correct sentence and judgment pursuant to Rule 29.15. We reverse and remand for an evidentiary hearing.

Movant was convicted of robbery in the first degree and attempted robbery in the first degree and sentenced to twenty years imprisonment on each count to run concurrently. Movant’s conviction was affirmed on appeal in State v. Chambers, 744 S.W.2d 818 (Mo.App.1988).

Thereafter, movant filed a pro se motion to vacate judgment pursuant to Rule 29.15. Counsel was appointed and movant filed an amended motion and request for a full evi-dentiary hearing. In his motion, movant alleges he was denied effective assistance of counsel for trial counsel’s failure to object to a police officer’s testimony movant was originally arrested on an unrelated charge and testimony of a conversation between the police officer and movant’s grandmother.

A preliminary hearing was held by the motion court. Movant was represented by counsel. The hearing court determined an evidentiary hearing was not warranted and subsequently set forth its findings and order.

On appeal, movant alleges the motion court erred in determining trial counsel’s failure to object in both instances did not have an affect on the outcome of the verdict.

Our review is limited to determining whether the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 29.15(j). Our standard of review is the same as under the repealed Rule 27.26. The motion court’s findings, conclusions and judgment are clearly erroneous only if a review of the entire record leaves a definite and firm impression a mistake has been made. To be entitled to an evidentiary hearing, the movant must allege facts, not conclusions, which if true, would warrant relief; the allegations of facts must not be refuted by the record; and must have resulted in prejudice to the movant’s defense. Nunn v. State, 755 S.W.2d 269, 271 [1] (Mo.App.1988).

Movant alleges ineffective assistance of counsel for trial counsel’s mismanagement of witness Sergeant Saitz’s testimony. On redirect examination, Saitz testified, “[I] told [movant’s] grandmother and I told [movant] directly ... since he was in fact a juvenile he should be careful because after his seventeenth birthday he wouldn’t go to the juvenile building, he would be considered an adult and be treated accordingly. If he was into something on the street, he would be booked ... as an adult_”

Testimony about the conversation was initially introduced on cross-examination by movant’s counsel. The motion court determined, “As a part of [movant’s counsel’s] trial strategy, she attempted to bring out that Sergeant Saitz had threatened to get movant after he became 17.... Movant’s counsel could not have objected to a subject she herself opened up.”

There was no evidentiary hearing and movant’s counsel did not testify. The motion court’s conclusion such questioning was a part of trial strategy is unsupported by the record and thus mere speculation. Fingers v. State, 680 S.W.2d 377, 378-79 [3] (Mo.App.1984); see also Thomas v. State, 761 S.W.2d 246, 252-53 [10] (Mo.App.1988). An evidentiary hearing is warranted on this issue.

Additionally, movant contends he was denied effective assistance of counsel for trial counsel’s failure to object to the reference of an unrelated charge. At trial, Saitz, testified “[a]t the time the uniformed officers responded and took [movant] into custody for an unrelated charge.”

Failure of counsel to object to evidence does not provide a basis for a claim of ineffective assistance of counsel unless there results a genuine deprivation of the right to a fair trial. Nunn v. State, 755 S.W.2d at 272 [3,4], A review of the record reveals this was the only reference made by Saitz to the unrelated charge. Saitz did not state the specific type of charge involved nor did anyone else. Standing alone, this single reference to an unrelated charge did not deprive movant of the right to a fair trial. However, reference to an unrelated charge by Saitz in light of the testimony of the conversation between Saitz and movant’s grandmother, entitles movant to an evidentiary hearing to determine the effect such statements had, if any, on the outcome of the verdict.

Reversed and remanded.

CRANDALL, P.J., concurs in separate opinion. REINHARD, J., dissents in separate opinion.