Newton v. Kemna, 354 F.3d 776 (Fed. 8th Cir. 1/9/2004)

• Decision Date: 09 January 2004
• Docket Number: No. 02-3972.,02-3972.
• Citation: 354 F.3d 776
• Parties: Harold NEWTON, Appellant v. Mike KEMNA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

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354 F.3d 776

Harold NEWTON, Appellant v. Mike KEMNA, Appellee.

No. 02-3972.

United States Court of Appeals, Eighth Circuit.

Submitted: September 10, 2003.

Filed: January 9, 2004.

Order Denying Petition for Reeharing and for Rehearing

En Banc March 5, 2004

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Kent E.Gipson, argued, Kansas City, Missouri, for appellant.

Frank A. Jung, argued, Jefferson City, Missouri (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Harold Newton was convicted in a Missouri state court of first degree murder, kidnapping, and two counts of armed criminal action. After exhausting his state post-conviction remedies, Mr. Newton filed a petition under 28 U.S.C. § 2254. The district court¹ denied Mr. Newton's petition but granted him a certificate of appealability on two of his claims relating to the testimony of Carla Ennis. We affirm.

I.

Neal Hurst was abducted at gunpoint as he was walking with three acquaintances in front of his home. Shortly thereafter, while riding in a car that was being pursued by the police, Mr. Hurst was killed by gunshots fired from inside the vehicle. At the conclusion of the pursuit, two of the men who were in the car with Mr. Hurst were arrested, but a third man fled the scene. The next day, Ms. Ennis, a friend of Mr. Hurst's who was with him when he was abducted, positively identified the two men who had been arrested as the driver and the person in the right rear passenger seat, and also gave a description to the police that matched Harold Newton as the man who had escaped. She testified at trial that, as Mr. Hurst was being forced into the car by one of the abductors, she ran to the front door of Mr. Hurst's house where she saw Mr. Newton come out of the house holding a gun, after which he got into the car with Mr. Hurst and the other two abductors. In addition to Ms. Ennis's testimony linking Mr. Newton to the crime, Mr. Newton's fingerprints were found on the outside of the passenger door of the car, and his wallet was found in the glove compartment.

The trial court, following a pretrial hearing, denied Mr. Newton's motion to disqualify Ms. Ennis as a witness on the ground of incompetency, and denied his motion to produce her medical records because she asserted her physician-patient privilege. Ms. Ennis was the prosecution's only eyewitness identifying Mr. Newton as one of the persons involved in the abduction of Mr. Hurst. The claims in Mr. Newton's habeas corpus petition focus largely on certain psychiatric records pertaining to Ms. Ennis that were reviewed in camera after his conviction by the state trial and appellate courts. These records, which relate solely to periods of time occurring after the abduction and murder of Mr. Hurst, consist of medical and psychological records from Malcom Bliss Mental Health Center and St. John's Mercy Medical Center and Ms. Ennis's prescription profile from JFK Clinic Pharmacy.

II.

The district court granted a certificate of appealability to Mr. Newton on two of his claims: that the trial court erred in limiting his cross-examination of Ms. Ennis, and that the trial court erred in finding that Ms. Ennis was competent to testify. We limit our appellate review to the claims specified in the certificate of appealability, and related discovery decisions made by the district court. We apply the standards of review set forth in the Anti-terrorism and Effective Death Penalty Act, under which an application for a writ of habeas corpus "shall not be granted" unless the Missouri courts' adjudication of either of the claims resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

III.

We begin with a consideration of Mr. Newton's confrontation clause claim. Mr. Newton contends that the trial court violated the sixth amendment's confrontation clause by denying him access to Ms. Ennis's psychiatric records and restricting his cross-examination of Ms. Ennis regarding post-offense issues.

Mr. Newton asserted this claim on direct appeal in state court, where he contended that "the trial court erred and abused its discretion in limiting his cross-examination of Carla Ennis to an examination of her mental condition on [the date of the offense] and during times she gave testimony in the case" and that he should have been able to cross-examine Ms. Ennis regarding her mental state throughout the two-year period following the offense. The Missouri Court of Appeals rejected the claim, holding that there was no abuse of discretion by the trial court in limiting Mr. Newton's proffered impeachment evidence, and concluded that Mr. Newton had "not pointed out any evidence or testimony, excluded by the trial court during cross-examination, which reflects on [Ms.] Ennis' ability to recollect her observations about the kidnapping." State v. Newton, 925 S.W.2d 468, 472 (Mo. Ct. App. 1996) (Newton I).

During a pretrial conference, the trial court informed Mr. Newton's counsel that he could question Ms. Ennis about her drug use, drinking, and mental health before and at the time that she observed the kidnapping, and at any time that she testified. The trial court also allowed Mr. Newton to make an offer of proof, outside of the hearing of the jury, to determine if a continual drug problem would disqualify Ms. Ennis as a witness.

During cross-examination at trial, Mr. Newton's attorney questioned Ms. Ennis about specific instances of crack cocaine use on the day of the crime, both before and after she witnessed Mr. Hurst's kidnapping, and about her alleged drinking on the night of the incident. Ms. Ennis was also asked during cross-examination whether she was taking Stelazine, Cogentin, or Prozac on the date of her observations, which she denied. The trial court refused to allow Mr. Newton's attorney to ask Ms. Ennis about an alleged suicide attempt that she made several days after the kidnapping and murder, but other than that, Mr. Newton's attorney made no attempt to ask Ms. Ennis about her mental health on the dates in question, as the trial court was willing to allow him to do. Mr. Newton offered the testimony of Ms. Ennis's sister that Ms. Ennis had turned over some crack cocaine to someone before she went to the police station to give a statement so that the police would not find it on her, and the observation of Ms. Ennis's mother that Ms. Ennis was "full of drugs" at the time of the incident. Defense witnesses also presented testimony providing Mr. Newton with an alibi for the period of time during which Mr. Hurst was kidnapped and murdered, and an innocent explanation for the presence of his wallet in the glove compartment and his fingerprints on the car. Mr. Newton presented the opinions of several witnesses that Ms. Ennis had a very bad reputation for truth and honesty. Mr. Newton neither offered nor attempted to offer any observations of Ms. Ennis's mental health on the relevant dates from people who knew her.

The confrontation clause, made applicable to the states through the fourteenth amendment, guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Supreme Court has made clear that "[c]onfrontation means more than being allowed to confront the witness physically." Davis v. Alaska, 415 U.S. 308, 315 (1974). "[A] primary interest secured by [the confrontation clause] is the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418 (1965).

The district court held that the trial court's restriction of the scope of Mr. Newton's cross-examination of Ms. Ennis (specifically, its prohibition of inquiry into Ms. Ennis's alleged suicide attempt and mental state after the murder) "was reasonable to accommodate legitimate state interests, namely the protection of a witness from interrogation that may have been harassing, confusing, or only marginally relevant to the issues." As the Missouri Court of Appeals found, Mr. Newton did not demonstrate "how the alleged suicide attempt would have impeached [Ms.] Ennis' recollection of the incident," and, in seeking "to cross-examine her regarding her entire psychological history," failed to point "to any specific facts which reflect on her ability to observe and remember." Newton I, 925 S.W.2d at 472.

Mr. Newton also contends that United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983), supports his claim that the confrontation clause was violated by the denial of his access to Ms. Ennis's records. In Lindstrom, the Eleventh Circuit, in a direct appeal from a defendant's conviction, held that the trial court had violated the confrontation clause by restricting cross-examination and defense access to documents pertaining to the psychiatric history of the government's witness. Id. at 1159. Even assuming that the Missouri courts' resolution of the confrontation clause claim was contrary to the Eleventh Circuit's holding in Lindstrom, and that Lindstrom was correctly decided, that case does not assist Mr. Newton in his § 2254 petition, since we may grant relief only if the state court has decided a matter contrary to clearly established Supreme Court precedent or has unreasonably applied that precedent, see 28 U.S.C. § 2254(d)(1). Mr. Newton has not identified any clearly established Supreme Court precedent requiring that a defendant have access to a witness's psychiatric records for impeachment purposes.

We recognize that one goal of effective cross-examination is to impeach the credibility of opposing witnesses. The Supreme Court has observed that ...