State v. Newbold

Citation731 S.W.2d 373
Decision Date28 April 1987
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Edward L. NEWBOLD, Appellant. 37,132.
CourtCourt of Appeal of Missouri (US)

Donald L. Wolff, Bonnie J. Miller, Wolff & Mass, Clayton, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before PRITCHARD, P.J., SHANGLER, J., and CONLEY, Special Judge.

SHANGLER, Judge.

The defendant Newbold was convicted by a jury of murder in the second degree, and was sentenced by the court to life imprisonment as a persistent offender. It was the theory of the prosecution that Newbold and Susan Levy acted with the common purpose to lure Marshall [Beau] Levy, her estranged husband, to her home to kill him, but guised as an act of self-defense. The defendant Newbold contends on appeal that the evidence was insufficient to submit the offense on that, or any other theory. The defendant contends, rather, that the evidence conclusively proved self defense and defense of habitation--and hence entitlement to acquittal as a matter of law.

The homicide was the culmination of an interwoven sequence of events which brought the victim Beau Levy to the house occupied by Susan at 1606 Elmwood in Kansas City on the evening of January 24, 1984. Susan lived there with Michelle, a daughter by Beau, and with Newbold, her lover.

In order to explain the progression of events to the homicide, it is necessary to reconstruct a number of scenes, some of them coincident, acted out by the principal players. In addition to Susan Levy, Beau Levy and Newbold, the principal actors included Mark Sellars [Susan's step-brother], Linda Sellars [Mark's estranged wife], Larry Archer [Linda Sellars's paramour], and Carl Levy [Beau's brother]. There were others, as well. At the time of the homicide on January 24, 1984, Susan, daughter Michelle, and Newbold [as we note] lived together at 1606 Elmwood. Susan was then also intimate with a man named Garcia. Beau, estranged from wife Susan, lived with a friend, Hickman. Mark Sellars and wife Linda were also estranged, and Mark lived with Carl Levy, brother of the victim, Beau. Linda was then involved in a liaison with Larry Archer.

In the early afternoon of January 24, 1984, Beau Levy visited Susan at 1606 Elmwood. Susan had asked Beau to look after their daughter, Michelle, that night so that she could go out with her sister, Wanda Ray and with Linda Sellars. Beau then left the home. Mark Sellars testified that Beau told him later that day to tell Susan that he was drunk and would not be able to take care of Michelle that night. At about 3 p.m., Wanda Ray [Susan's sister] and Linda Sellars [Susan's step-sister-in-law] arrived. The three women were going out together that evening. Linda testified that when they arrived, Newbold and Susan were in argument, and Susan wanted Newbold out of the house.

Somewhat after 6 p.m., Linda Sellars left for the house of Carl Levy, about four blocks away. Mark, her estranged husband, lived with Carl, and she wanted to ask him to keep their children for the weekend so that she could go out with Susan Levy. Beau Levy and Newbold also stayed there at times. When Linda arrived, Mark, Carl, Brenda Kerns, Michaelyn Edwards and Bill Nelson were in the midst of a party. They had been drinking since 4:00 that afternoon. At about 7:30 p.m., Newbold telephoned. The evidence conflicts as to whether it was Carl Levy or Michaelyn Edwards who talked to Newbold. The message was to tell Mark Sellars that Archer [Linda's paramour] was on his way with a gun to kill him. Carl Levy conveyed the information to Mark Sellars. 1 Linda decided to get away from there rather than be "around a bunch of gun play," and returned to Susan Levy at 1606 Elmwood. There she saw Archer standing across the street near his car.

Linda went into the Susan Levy house without talking to Archer. Newbold was still there. Linda asked Newbold "what the hell he thought he was doing," and Newbold responded that it was none of her business. Their words became heated, and Newbold said he would return when Linda had gone. Linda went outside to join Archer. They drove to a local grocery store, and then to the park, where they lingered. According to Linda, by the time they returned to 1606 Elmwood, Beau Levy was already dead. Archer was not armed, she said.

In the meanwhile, at the Carl Levy house, Sellars was concerned about the Newbold telephone call, and decided to arm himself. Sellars telephoned David Hickman [with whom Beau Levy was living] for a shotgun, and Carl Levy assured Hickman "it was all right to go ahead and loan [Sellars] the shotgun." Brenda Kerns drove Sellars to the Hickman house to get the weapon. Mark and Brenda then drove to the Susan Levy house at 1606 Elmwood to look for Archer. They pulled into the alley at about 8:15 p.m. Sellars remained in the car with the shotgun while Brenda went inside to see if Archer was there. He was not, and the two returned to the Carl Levy house.

Shortly after Sellars returned to the Carl Levy house, Newbold arrived. According to Sellars, it was then 8:15 p.m. Sellars testified that in addition to Brenda Kerns, Michaelyn Edwards was there, as was Bill Nelson. Carl Levy, himself, testified that he was then out to replenish the beer, although Sellars accounted him among those present when Newbold arrived. Mark Sellars gave this account of the event: "Ed [Newbold] walked in and said he needed a shotgun, or needed something down there to protect Sue and Michelle." Newbold ascribed as the reason: "Because Larry [Archer] was down there waving a pistol earlier." Mark Sellars, Brenda Kerns and Newbold then went to the home of David Hickman to get another gun. This second weapon, a 12-gauge sawed-off shotgun, had already been requested by Carl Levy even before Newbold arrived--presumably to protect himself in the event Archer appeared to attack Mark Sellars, who also lived there. The three, Sellars, Kerns and Newbold, then proceeded to the Susan Levy house to see if Archer was there. He was not there, so Sellars and Kerns returned to the Carl Levy house, while Newbold remained with the shotgun "to protect Sue and Michelle."

Nelson was also at the Carl Levy house when Newbold arrived, and gave this narration of the event. It was then about 6:00 p.m. Michaelyn Edwards was also there, but not Mark Sellars or anyone else. Carl Levy was also gone. "Well, he [Newbold] walked in the door, he said there was--Larry Archer was down at Sue's house waving a gun at Beau's wife and daughter and he had better get a pistol and get down there." [Sellars's narrative did not mention Beau Levy or that Newbold exhorted that Beau "had better get a pistol and get down there."] Nelson said that Newbold then "stuck around for a little bit and then he walked out the door." [Sellars's narrative was that Newbold left with him and Kerns to obtain a gun from Hickman.] Then Beau Levy "walked in the door," and Nelson recounted to Beau "exactly what Mr. Newbold had said, that Larry Archer was down at Sue's house waving a gun at his wife and daughter and he'd better get a pistol and get down there." With that, "Beau just turned around and calmly walked out the door; he said he'd go see what was--what was wrong."

Michaelyn Edwards was also present when Newbold walked into the Carl Levy house. Her narrative presented a third version of that event: "He [Newbold] said that Larry Archer had been at Sue and Beau's house, Levy's house--that Linda was taking up for Larry Archer, Larry Archer was there waving a gun around and everything; and that he was upset because Linda was taking up for Larry." Michaelyn Edwards recounted also: "He [Newbold] said to tell Beau that he ought to come down there and see what was going on, that--that Sue was--that Linda was down at his house being on Larry Archer's side and he didn't like it." Newbold left. Then Beau arrived. Michaelyn Edwards told Beau "that there was trouble down there at his house and he ought to go down there." Beau responded casually: "I think I'll go down there and see what's going on."

Mark Sellars and Brenda Kerns, it will be recalled, separated from Newbold at the Susan Levy house when Archer was not found there. Newbold remained behind with the shotgun to protect Susan and Michelle, and Sellars and Kerns returned to the Carl Levy house. Enroute, Mark saw Beau Levy's truck parked across the street from the Frank Green house, not far from their destination, the Susan Levy house. Brenda Kerns sounded the horn, and Beau emerged. Mark asked Beau what he was doing, and Beau replied: "I'm getting a pistol." It was a .9 millimeter automatic. Beau told Mark: "I'll meet you up at Carl's house." Mark and Brenda returned to Carl Levy but Beau never came. Five or ten minutes later Carl Levy received a telephone call that Beau had been shot.

The discrepancies among the various accounts as to the times of the events render it difficult to recast the movements of Beau Levy exactly during the time before Mark Sellars saw him at the Green house, moments before the homicide. It was the testimony of Diana Rowland that at 6:00 p.m. or so she and Beau drove to Independence to pick up Steve Hickman, David Hickman's brother. [Beau lived with David Hickman] They returned to Kansas City at about 7:30 p.m. and went to her house. Shortly thereafter, Beau received a telephone call from David Hickman, who told him that brother Carl had an urgent need to speak with him, and that he should come there at once. It was then about 8:30 p.m. Beau left immediately, and--according to Diana Rowland--Beau did not appear to be agitated by the call. She said also that Beau had had nothing to drink that afternoon and was not intoxicated. Beau arrived at the house of his brother, Carl...

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