State v. Newberry

• Decision Date: 15 October 1980
• Docket Number: No. 61695.,61695.
• Citation: 605 S.W.2d 117
• Parties: STATE of Missouri, Respondent, v. Floyd B. NEWBERRY, Appellant.
• Court: Missouri Supreme Court

605 S.W.2d 117

STATE of Missouri, Respondent, v. Floyd B. NEWBERRY, Appellant.

No. 61695.

Supreme Court of Missouri, Division No. 1.

September 9, 1980.

Rehearing Denied October 15, 1980.

Robert Beaird and John P. Burnett, Kansas City, for appellant.

Paul R. Otto and Paul Spinden, Asst. Attys. Gen., Jefferson City, for respondent.

WELBORN, Commissioner.

Appeal from conviction for murder in the first degree upon jury trial, resulting in judgment of guilt and sentence to life imprisonment.

On June 18, 1976, at about 4:00 P.M., appellant Floyd B. Newberry called sheriff's deputies to his residence in Oakwood, Clay County, Missouri. The officers found the body of appellant's wife, Roxanne Newberry, in her bedroom. Her throat had been slashed and she had stab wounds in her chest. Subsequent laboratory tests indicated that she had been raped and sodomized. Appellant told investigating officers that he had left the house at around 7:30 A.M. and returned to find his wife's body at around 4:00 P.M.

On December 19, 1978, a Clay County grand jury indicted appellant for murder in his wife's death. Appellant's involvement was based upon information provided by his father, Floyd W. C. Newberry. The father, who had abandoned appellant at an early age, had an extensive criminal record. He had been convicted of assault in Minnesota and served a prison sentence for that offense. He had been convicted of assault in Kansas and placed on probation. He had been convicted in Missouri of issuing an insufficient funds check and served a prison sentence for that offense. When he made the statement implicating appellant in his wife's death, the father was in federal custody on a counterfeiting charge. He testified at appellant's trial upon an assurance that for his admitted role in Roxanne's death, he would be charged with second degree murder and that any sentence which he received would be served concurrently with the federal sentence which he was then serving.

According to the father's testimony at appellant's trial, appellant had approached him in February and March, 1976, about killing Roxanne. According to the father, appellant said he and his wife were not getting along well and they had financial problems which appellant proposed to solve by collecting some $300,000 insurance upon his wife's death. The father said that appellant promised him $60,000 to do the job and when he agreed to cooperate, his son gave him a promissory note for $105,000 to assure his payment.

According to the father, he asked Charles White, an employee of the father's upholstery business, to do the killing and White readily agreed to do so. The father and White concocted a plan to kill Roxanne at her place of employment. They knew that Roxanne made trips to the bank on her job and brought back money for her employer. They planned to make her death appear the result of a robbery. On April 22, 1976, the father drove White to the area of Roxanne's place of employment and let him out. When Roxanne entered the building carrying $1300 in cash, White struck her with an iron pipe and shot her. He took $400 of the money and fled. The father picked him up and White told him "It's all over with." The father had provided White with the .22 automatic Strum Luger with which Roxanne was shot.

The injuries Roxanne received were not fatal. She was taken to a hospital and subsequently recovered. According to the father, plans to kill Roxanne in the hospital were discussed but discarded because "there was no way to get to her in the hospital."

In recuperating from her injuries, Roxanne visited an aunt in Florida. The father said appellant provided him with her address there and plans were made to get her in Florida.

The father provided White and Rodney Strickland with bus tickets to Florida. Strickland, according to the father, was brought into the picture at White's request. Strickland, testifying at appellant's trial confirmed that he and White went to Florida. He denied that he had been a party to a conspiracy to kill Roxanne. He said that he went on the trip because White asked him and that he understood that the purpose of the trip was to pick up a package for the father. Strickland acknowledged that, after they had been in Florida for several days, White told him he was supposed to kill someone but he did not name the intended victim and the two spent most of the time in a hotel room, drinking.

According to the father, after White and Strickland returned from Florida, appellant and the father made a practically non-stop trip to Florida in the appellant's automobile. Appellant pointed out to the father where Roxanne was staying and the two returned immediately to the Kansas City area. The father stated that the trip took approximately 30 hours.

Around May 27, 1976, the father and Strickland flew to Florida. At 1:59 A.M. on May 27, 1976, a police officer in Miami Shores, responding to a call about prowlers looking into the window of a house on 102nd Street, found the father and Strickland in that vicinity. They told the officer that they were looking for someone. The officer advised them to make the search at a more appropriate time. The two promptly returned to Kansas City. The aunt whom Roxanne was visiting lived on 102nd Street in Miami Shores.

According to the father, although he was actively participating in the scheme, he was also trying to discourage it. He said that when he and his son drove to Florida and he saw where Roxanne was staying, he told his son that it was impossible to get in the place. He said that when he and Strickland were there, he tried to make himself conspicuous in the hope that someone would see him.

In any event, Roxanne returned to her home and the father and appellant proceeded with planning to dispose of her. A scheme was devised whereby appellant was to leave the house early, leaving it unlocked to permit White's entrance and carrying out the plan. On two occasions, the father, White and Strickland went to a schoolhouse directly behind the Newberry residence. Strickland heard them discussing a planned robbery, and using knives. According to the father, White did not go to the house when Strickland was along because the police were "too thick" around there.

At around 7:00 A.M. on June 18, the father drove White to the vicinity of his son's house and let White out at the schoolhouse. The father returned to the schoolhouse after 15 to 20 minutes and picked up White. White told him that he had killed Roxanne.

According to the father, White told him that he entered through the unlocked basement door and sat on the basement steps. Appellant opened the door at the top of the stair, saw White, nodded, and turned and left. White entered the house and found Roxanne in her bedroom. He tied her hands and feet, had sexual intercourse with her and then stabbed her and cut her throat.

When the father was arrested on the counterfeiting charge, a .22 Luger was taken by arresting officers and ballistic tests connected the weapon with the assault upon Roxanne at her place of employment. White was also arrested on the counterfeiting charge. A knife was taken from his possession. Tests revealed that hair found on the knife matched Roxanne's hair.

In this Court, appellant contends that the trial court erred in overruling his motion for a judgment of acquittal "because the testimony of the alleged accomplices was inherently suspect and incredible, intrinsically lacked credibility, was patently self-destructive and contradictory so as to rob it of all probative force, and was conclusively impeached by other evidence." Appellant's attack is primarily upon the testimony of Floyd W. C. Newberry. He points out that the father testified that he was to receive $60,000 for his part in the murder but that he was given a note for $105,000 to guarantee payment for carrying out the plan and that no explanation was given for the difference. He points to the father's testimony that, following Roxanne's death, he made no effort to obtain payment from appellant. He argues that the father implicated his son only after receiving a promise that any time he would receive for his part in the murder would be served concurrently with his federal sentence and outside Missouri. He notes that the father testified that, although he was furnishing personnel and weapons for the murder and was making trips to Florida to carry it out, he was also trying to convince his son to abandon the scheme. He finds the father's testimony that he and his son made a nonstop auto trip to Florida in some 30 hours contrary to physical facts in view of the 1600-mile distance between Kansas City and Miami. He notes that the father testified that he and Strickland made a trip to Florida on May 26, 1976, at the request of appellant in order to carry out the scheme, but the aunt with whom Roxanne stayed testified that she returned to Kansas City on May 26, at appellant's request, arguing that this testimony would have the son sending the actors to Florida at the same time that he had requested his wife to return home.

Appellant also contends that Strickland's denial of any role in a conspiracy to murder directly contradicted the father's testimony that Strickland was involved, leaving the state's evidence on the scheme from alleged participants directly contradictory.

Appellant cites cases recognizing the general rule that when the state's evidence is "inherently incredible, self-destructive or opposed to known physical facts" it will not be sufficient to permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Dupepe, 241 S.W.2d 4, 73-5 (Mo.1951); State v. Harris, 295 S.W.2d 94 (Mo.1956); State v. Powell, 433 S.W.2d 33 (Mo.1968). Significantly, in none of the cases cited by the appellant did the appellate court find the evidence involved so lacking.

Other general rules apply here. "* * * A defendant is not entitled to a judgment of acquittal because of...