State v. Newson

• Decision Date: 30 May 1995
• Docket Number: No. WD,WD
• Citation: 898 S.W.2d 710
• Parties: STATE of Missouri, Respondent, v. Terry L. NEWSON, Appellant. 47245.
• Court: Missouri Court of Appeals

Page 710

898 S.W.2d 710

STATE of Missouri, Respondent, v. Terry L. NEWSON, Appellant.

No. WD 47245.

Missouri Court of Appeals Western District.

May 30, 1995.

Ellen H. Flottman, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.

Before BRECKENRIDGE, P.J., and ELLIS and LAURA DENVIR STITH, JJ.

BRECKENRIDGE, Presiding Judge.

Following a jury trial, Terry L. Newson was convicted of murder in the first degree, § 565.020.1, RSMo 1994, ¹ assault in the first degree, § 565.050, and two counts of armed criminal action, § 571.015, for which he was sentenced respectively to life imprisonment without the possibility of parole and to three consecutive terms of life imprisonment. He appeals the convictions. Mr. Newson also challenges the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing.

On appeal, Mr. Newson raises three points, claiming that the trial court erred (1) in denying Mr. Newson's motion for a mistrial, since he was prejudiced by the unsolicited outburst of a witness; (2) in overruling his motions in limine and trial objections relating to hearsay testimony of one witness; and (3) in denying Mr. Newson's Rule 29.15 motion, since his counsel was ineffective in failing to cross-examine a witness about the hostility she felt towards Mr. Newson.

The judgments are affirmed.

Mr. Newson and Andrea Renee Jones lived together, along with Ms. Jones' two children, for approximately one year. On December 19, 1990, Harry Foster, a neighbor who lived across from Mr. Newson and Ms. Jones, saw them arguing in the front yard. Mr. Foster heard Ms. Jones yell, "You're going to be sorry," to which Mr. Newson retorted, "You're going to damn well be sorry."

That same day, Mr. Newson spent time with a friend of his, Terry Emery. The two men picked up their checks, went to a pawn shop to retrieve Mr. Newson's gun, and then proceeded to another friend's house. Mr. Emery testified that he and Mr. Newson consumed alcohol during the course of the day. Mr. Newson returned home around 10:00 p.m.

When Mr. Newson entered the house he shared with Ms. Jones, Ms. Jones was speaking on the telephone to a friend, Jacqueline Brooks. Ms. Brooks was to be married on December 21, 1990, and Ms. Jones was the maid of honor. They had been discussing plans to celebrate the wedding.

Once Mr. Newson arrived, Ms. Brooks could hear Mr. Newson and Ms. Jones talking on the other end of the telephone, and noticed that Ms. Jones had become anxious. Earlier, Ms. Jones had confided to Ms. Brooks that on several occasions she had asked Mr. Newson to leave the house, but that he had not done so. By the evening of December 19, 1990, Ms. Jones had packed Mr. Newson's bags. Upon Mr. Newson's return home, Ms. Jones told Ms. Brooks that she was getting off the telephone to tell Mr. Newson to leave one more time.

After the telephone conversation on December 19, 1990, Ms. Brooks never spoke with Ms. Jones again. Ms. Brooks attempted to call Ms. Jones two or three times a day, but each time Mr. Newson made excuses as to why Ms. Jones could not come to the telephone. Ms. Jones failed to appear at Ms. Brooks' wedding on December 21st, 1990.

Ms. Jones' mother, Doris Houston, had also been unable to reach Ms. Jones, so she proceeded to Ms. Jones' house at approximately 10:30 p.m. on December 23, 1990. Upon arriving, Mr. Newson told her that Ms. Jones was not there, and that she would be returning shortly. Ms. Houston remained at the residence to wait for her daughter and to read bedtime stories to Ms. Jones' two children. When she asked one of the children where her mother was, the child responded that she was "[t]here in the bed."

Ms. Houston walked into the bedroom, turned on the light and saw her daughter in bed with a blanket over her. She called her daughter's name, but heard no response. Ms. Houston then noticed the condition of her daughter's body, and realized that she was dead. As Ms. Houston turned to leave the room, she found herself staring into the barrel of a gun held by Mr. Newson.

Mr. Newson shot her in the face, saying, "I don't want to go to jail." He also remarked, "[Y]ou should not have come back here, why didn't you stay away[?]" After Ms. Houston was struck two times in the face, Mr. Newson turned the light out, left the room and closed the door. Ms. Houston staggered to the closet wall, where she sat on the floor, bleeding to such an extent that she had to open her mouth to prevent herself from choking. As she began to feel hot and sick, she stood up and opened the main window; she attempted to open the storm window as well, but was unsuccessful. At that point, Mr. Newson returned. Mr. Newson stated that if Ms. Houston did not lie down, he would shoot her again. Ms. Houston explained, "If I lay down I'll die," to which Mr. Newson responded, "Yeah, I know." Ms. Houston then lay down and asked for a blanket. Mr. Newson gave her one and left the room.

Ms. Houston heard water running and ascertained that Mr. Newson was taking a bath. She also heard him take the front off the furnace and detected the odor of gas. Later, Mr. Newson returned to the bedroom a second time. He pulled the blanket off Ms. Houston's face, shined a flashlight in her eyes and said, "Oh, it won't be long now." He then left the house.

Upon Mr. Newson's departure, Ms. Houston attempted to use the telephone, but Mr. Newson had made it inoperable. She struggled down the hall, rested on the couch, and finally found the front door-knob. Ms. Houston was able to exit the house and reach Mr. Foster's residence across the street, where she received help.

Between 7:30 and 8:00 a.m. the next morning, Mr. Newson arrived at Mr. Emery's residence. Mr. Emery testified that Mr. Newson was acting as if something was wrong. He was wearing a lady's coat and had a blood-stained sock tied around his wrist. Mr. Emery invited Mr. Newson inside, at which time Mr. Newson told him that he and Ms. Jones had been arguing. After comforting Mr. Newson and giving him a blanket, Mr. Emery returned to bed for approximately forty-five minutes.

At some point, Mr. Newson called a former girlfriend, Danielle Cisco. Ms. Cisco testified that Mr. Newson sounded depressed. He told her he was leaving town and would not be coming back. Ms. Cisco inquired as to what Mr. Newson had done, and he responded that she would find out in due time.

When Mr. Emery got up, he found Mr. Newson lying on the floor next to the couch. The telephone rang, and Mr. Emery's brother informed Mr. Emery that Ms. Jones had been killed and that her mother had been shot. Mr. Emery asked Mr. Newson if he knew about those events. Mr. Newson responded affirmatively.

According to Mr. Emery, he and Mr. Newson got inside Mr. Emery's car, intending to go to the store and then to the police station. While Mr. Newson was inside the vehicle, two police cars arrived and Mr. Newson was arrested. He led an officer to the location where he had hidden the gun, in the ceiling of a laundry room. The gun contained four unspent cartridges.

The police found Ms. Jones' body on the bed of her home, covered with laundry. The cause of her death was one gunshot wound to the back of the head. The bullet had travelled through her brain cavity and was recovered from underneath the front portion of the skull.

Ms. Houston had been shot twice. Both bullets entered on the left side of her face, but one bullet passed through the right side of her neck, while the other one lodged underneath the skin of her neck. Upon police examination, it was determined that the bullet found in Ms. Jones' skull, as well as the two bullets which struck Ms. Houston, had been fired from Mr. Newson's gun. In addition, three empty shell casings were found on the floor of the bedroom of the house shared by Mr. Newson and Ms. Jones.

Following trial, a jury returned a verdict finding Mr. Newson guilty of murder in the first degree, assault in the first degree and two counts of armed criminal action. Mr. Newson filed a Rule 29.15 motion requesting post-conviction relief. After an evidentiary hearing, the motion was denied. Mr. Newson appeals both his convictions and the judgment on his post-conviction motion.

I.

In his first point on appeal, Mr. Newson claims that the trial court erred in overruling his request for a mistrial because, at the end of Ms. Houston's cross-examination by the defense, she blurted, "This man will kill again." Mr. Newson charges that the unsolicited outburst denied him due process and a fair trial as guaranteed by the fifth, sixth and fourteenth amendments to the United States Constitution, as well as Article I, Sections 10 and 18(a) of the Missouri Constitution.

A mistrial is a drastic remedy which is only employed in extraordinary circumstances. State v. Sidebottom, 753 S.W.2d 915, 919-20 (Mo. banc 1988), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). It is appropriate when an incident is so grievous that a mistrial is the sole means by which the incident's prejudicial effect can be removed. State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). The trial court, having viewed the incident first-hand, is in the best position to determine whether prejudice can be rectified by an action short of declaring a mistrial. Id. Accordingly, "[a] trial court has broad discretion in determining whether to grant a mistrial and will be reversed only for an abuse of that discretion." State v. Goree, 762 S.W.2d 20, 24-25 (Mo. banc 1988).

When a witness unexpectedly volunteers inadmissible information, the trial court determines which measures, if any, are necessary to cure the potential prejudice. State v. Gillis, 812 S.W.2d 887, 890 (Mo.App.1991). If, rather than granting a mistrial, the trial court takes remedial action, it must be determined on review simply whether the error was so prejudicial...