Newton v. State

• Decision Date: 03 January 1973
• Docket Number: Nos. 71--1142,71--1143,s. 71--1142
• Parties: Raymond L. NEWTON and Germaine C. Newton, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 15

272 So.2d 15

Raymond L. NEWTON and Germaine C. Newton, Appellants, v. The STATE of Florida, Appellee.

Nos. 71--1142, 71--1143.

District Court of Appeal of Florida, Third District.

Jan. 3, 1973.

Rehearing Denied Feb. 5, 1973.

Carr & Emory, Miami, for appellants.

Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Legal Intern, for appellee.

Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.

PER CURIAM.

These consolidated appeals by Raymond L. Newton (appeal No. 71--1142) and Germaine C. Newton (appeal No. 71--1143), are from their conviction of second degree murder, when tried under an indictment charging them with murder in the first degree. Raymond Newton received a life sentence. Germaine Newton was sentenced to imprisonment for twenty years. On consideration of the several contentions presented on behalf of the appellants as grounds for reversal, we find no reversible error has been shown.

Facts the jury was entitled to find from the evidence included the following. The defendant was the owner or operator of a business designated 'Ray's Car Lot.' A half-brother of the victim William Flagler was having some work done on his car there. On Saturday afternoon, January 10, 1970, the victim and several other persons including his half-brother drove onto the lot. The half-brother got out of the car and remained there. The victim drove away in a manner which resulted in the wheels of his car throwing stones or pebbles which may have struck some of the cars on the lot. Thereupon, in the presence of witnesses who so testified at trial, the appellant Ray Newton told the victim's half-brother, 'Jack, be sure when you get home to tell your bother when I see him I am going to stomp his damned--in the ground.' Approximately a half hour after midnight of that day the defendants Ray Newton and his wife Germaine Newton came into the victim's house. Both were armed with shotguns. Present, in addition to the victim and his wife, were a number of their friends. After brandishing his weapon Ray Newton proceeded from the room in which the friends were present into an adjoining room which was a bedroom, and his wife stood in the doorway to that room. On entering the bedroom the defendant Ray Newton shouted: 'Where's William? Where's William?' The victim's wife, who was in or went into the bedroom at that time, answered that he (William Flagler) was not there. On a bed in the room a form (which in fact was William Flagler) lay huddled under the bed clothes. Ray Newton approached the bed with the shotgun and 'pushed twice' against the figure under the covers and the gun was discharged into the figure on the bed. The shot proved fatal to the victim. A witness testified that after the gun went off the defendant Germaine Newton stated: 'That boy is not dead. He got guts,' and then said: 'Let's go, Ray.' Thereupon the Newtons departed.

Appellants' first two contentions challenge rulings of the trial court involving testimony of a witness, Robert Lee Green. The trial was the second trial of the defendants under the indictment. On the first trial, which ended in a mistrial, Green had testified as a witness for the state. When the second trial was held Green was in Viet Nam. The state presented the testimony given by Green at the prior trial, as authorized by Rule 3.640(b) CrPR, 33 F.S.A.

Defendants sought to impeach that testimony by offering in evidence an affidavit containing contradictions of Green's earlier testimony, which affidavit had been made by Green after the first trial and prior to leaving the country.

We agree with the ruling of the trial court in excluding the affidavit, on the authority and reasoning of Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409. See also Young v. United States, 5 Cir. 1938, 97 F.2d 200, 206; Culwell v. United States, 5 Cir. 1952, 194 F.2d 808, 811.

In Mattox v. United States, supra, it was held that where a witness in a criminal trial had died since the trial and his testimony given on the first trial was read in evidence at a second trial, statements made by him after the first trial, that his testimony on that trial was false, are not admissible to impeach his earlier testimony. Commenting thereon the Court said:

'While the enforcement of the rule, in case of the death of the witness subsequent to his examination, may work an occasional hardship by depriving the party of the opportunity of proving the contradictory statements, a relaxation of the rule in such cases would offer a temptation to perjury, and the fabrication of testimony, which, in criminal cases especially, would be almost irresistible. If it were generally understood that the death of a witness opened the door to the opposite party to prove that he had made statements conflicting with his testimony, the history of criminal trials leads one to believe that witnesses would be forthcoming with painful frequency to make the desired proof. The fact that one party has lost the power of contradicting his adversary's witness is really no greater hardship to him than the fact that his adversary has lost the opportunity of recalling his witness and explaining his testimony would be to him. There is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception.'

In the instant case the reason for application of the rule of exclusion of such evidence is even stronger than in the Mattox case where the witness had died, because when Green's affidavit was obtained by defendants after the first trial they could have taken steps to preserve his testimony before he departed the country, for the purpose of its use in the second trial, under the procedure provided therefor by Rule 3.190(l) CrPR. They did not do so, and it appears that the state was not aware of the making of such affidavit by the witness Green, and did not have knowledge of Green's whereabouts at that time.

Appellants' third contention was stated in the brief as follows: 'Whether the trial court erred in not permitting defense counsel to cross-examine designated pros...