State v. Newell

• Decision Date: 11 January 1971
• Docket Number: No. 55523,No. 1,55523,1
• Citation: 462 S.W.2d 794
• Parties: STATE or Missouri, Respondent, v. William C. NEWELL, Appellant
• Court: Missouri Supreme Court

Page 794

462 S.W.2d 794

STATE or Missouri, Respondent, v. William C. NEWELL, Appellant.

No. 55523.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 8, 1971.

John C. Danforth, Atty. Gen., J. Michael Jarrard, Asst. Atty. Gen., Jefferson City, for respondent.

Samuel T. Vandover, Asst. Public Defender, Clayton, for appellant.

HOUSER, Commissioner.

William C. Newell, found guilty of burglary second degree, § 560.045, V.A.M.S., and sentenced to 5 years' imprisonment, has appealed. On his behalf the Assistant Public Defender of St. Louis County filed a brief on appeal raising five procedural points. We reverse and remand on the basis of Point III which suggests error in denying Newell his constitutional right to confront and cross-examine his accusers reserved to him under Art. I, § 18(a), Constitution of Missouri, 1945, V.A.M.S., and the Sixth and Fourteenth Amendments to the Constitution of the United States.

On direct examination Leonard Endicott, a detective, testified that after Newell's arrest he talked to Newell at the city holdover; that after introducing himself he informed Newell of his Miranda rights and interrogated him after ascertaining that Newell understood his rights and would answer questions. The record follows, Endicott testifying:

'Q What did you ask him, if anything?

'A I told him I was there with regard to a burglary that occurred on Waldron in University City on January 23rd, whereby he and a fellow by the name of Sylvester Kennon had participated in a burglary; he stated he didn't know anything about it. I told him we had talked to Mr. Kennon and Mr. Kennon had told us Newell picked him up at his home in a car, they drove around, wound up in University City and parked the car, got out and Newell took a large screwdriver with him out of the car, walked to the side door of a house--

'MR. VANDOVER: If I may ask, who is saying this?

'A Sylvester Kennon.

'MR. VANDOVER: Your Honor, I would like to approach the Bench at this time.

'THE COURT: Very well.

'(OUT OF THE HEARING OF THE JURY):

'MR. VANDOVER: I am going, at this time, to object. I would have objected sooner, but I misunderstood the testimony, as I thought this is what he was relating that defendant had told him, but not I understand it to be that this is what the officer says Sylvester Kennon told him as to the part played by the defendant in this particular burglary, in which case this is hearsay, highly prejudicial and violative of the doctrine laid down in Bruton versus United States, which is about two years old. In effect it is permitting a person not present in the courtroom to testify against my client and to that I am objecting.

'THE COURT: Said objection is overruled for the reason that the witness is recounting what he, the witness, told the defendant in this interrogation room, and in the course of that he's telling the jury what he told the defendant that Sylvester Kennon had previously said. That is not hearsay under that rule.

'MR. VANDOVER: Your Honor, may I say what that case held?

'THE COURT: I think I know.

'MR. VANDOVER: There is no sense in my telling you, then.

'(BEFORE THE JURY):

'THE COURT: Before we pick up the account of the interrogation I would like to ask Officer Endicott this question. Am I right in my understanding that you are relating what, at the time of the interrogation, you told the defendant as to a prior conversation you had had with Sylvester Kennon?

'A Yes, sir.

'THE COURT: All right. You may continue.

'MR. WEYERICH: Q. What else did you tell the defendant William C. Newell at this time?

'A We told him--

'THE COURT: Not what 'we'--

'A I told him Kennon had told me he and Kennon--Kennon and Newell had gone into University City and parked the car Newell was driving. They got out, Newell took a large screwdriver with him, they walked to the side of the house, Newell used the screwdriver to jimmy the door, they both went in, ransacked the house and took articles. I told him part of the items had been recovered by the St. Louis police. Part were missing. There was a watch, a stereo, a sewing basket still missing. Kennon informed me--

'MR. VANDOVER: There, again, I object to what Kennon said.

'THE COURT: The way it is phrased I sustain the objection.'

Kennon's statement was made two or three days after the commission of the crime, and not in the presence of Newell. Kennon did not testify in Newell's case.

In this situation we sustain Newell's contentions that the effect of Endicott's testimony was to permit Sylvester Kennon, who was not in court and therefore not subject to cross-examination, to accuse Newell as a coparticipant in the crime; that after a common enterprise is ended no joint actor is permitted by any subsequent act or declaration of his own to affect the others; that the foregoing evidence was not introduced as evidence of probable cause for the arrest of Newell, but as affirmative evidence of his guilt (Newell having been arrested in the company of Kennon and items identified as stolen in the burglary having been found in Newell's possession); that the constitutional right of confrontation is to afford an accused an opportunity to cross-examine his accusers to test the credibility of their assertions, a right denied by permitting Kennon to accuse Newell through the testimony of Officer Endicott.

Under well-established principles the admission in evidence of the statements and declarations of Kennon, an alleged coparticipant in the burglary and stealing, made to Officer Endicott, out of the presence of Newell and some time after the commission of the crime, implicating Newell as a participant in the burglary and stealing, constituted reversible error. '* * * After the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others. State v. Ross, 29 Mo. 32.' State v. Chernick, Mo.Sup., 278 S.W.2d 741, 748(5, 6). See also State v. Chernick, Mo.Sup., 280 S.W.2d 56, 59; State v. Jaeger, Mo.Sup., 394 S.W.2d 347, 350(4); State v. Cross, 357 S.W.2d 125, 128(10); State v. Tripp, Mo.Sup., 303 S.W.2d 627. Newell was denied the right of cross-examination secured by the confrontation clauses of the state and federal constitutions. Detective Endicott's recital to the jury of what Kennon told Endicott, delivered under the guise of a report of his official interrogation of Newell, demonstrated beyond question Newell's guilt of the crime alleged if what Kennon told Endicott was true. While Endicott was on the stand, subject to cross-examination on the question whether Kennon...