State v. Newton, s. 63938
| Decision Date | 16 December 1997 |
| Docket Number | 68569,Nos. 63938,s. 63938 |
| Parties | STATE of Missouri, Respondent, v. Harold L. NEWTON, Appellant. Harold L. NEWTON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Gary E. Brotherton, Asst. Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for Respondent.
In State v. Newton, 925 S.W.2d 468 (Mo.App.1996) (Newton I ), Harold L. Newton (defendant) appealed his sentences entered following verdicts of guilty by a jury of murder first degree, Section 565.020 RSMo 1994 (all references hereinafter will be to RSMo 1994 unless otherwise noted); armed criminal action in connection therewith, Section 571.015; kidnapping, Section 565.110; and armed criminal action in connection therewith, Section 571.015. In Newton I, defendant contended that the trial court erred in: (1) quashing his subpoena requesting state witness Carla Ennis' (Ennis) psychological records and in finding her competent to testify without examining such records; (2) limiting defendant's cross-examination of Ennis' credibility to an examination of her mental condition on May 25, 1991; and (3) sustaining the state's objection which precluded defendant from examining Geraldine Clark regarding Ennis' use of crack cocaine the night of the incident. Defendant also contended that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because: a) defendant's trial counsel failed to call Wayne Kibble as a witness; b) the prosecuting attorney knowingly used false or misleading evidence to obtain defendant's conviction; and c) newly discovered evidence would have prevented defendant from being found guilty of first degree murder. Our opinion resolved defendant's points on appeal except for his first point. As to his first point, we found that the trial court erred in failing to conduct an in camera inspection of Ennis' psychological records to determine if any relevant and material information existed concerning her competency to testify and remanded the cause to the trial court. Newton I, 925 S.W.2d at 472. For a detailed recitation of the facts see Newton I, 925 S.W.2d at 469-70.
Upon remand, the trial court conducted an in camera review of Ennis' psychological records and found:
[t]he response of Dr. Mary Nielsen (who treated Ennis) to this Court's order to Produce Records Under Seal states that she has no such records in her immediate possession or control. A review of the records received from Malcolm Bliss Mental Health Center and St. John's Mercy Medical Center was conducted. The Court has also reviewed the Affidavit of James Dunning, Clinic Pharmacist, JFK Clinic Pharmacy, indicating that the computer log of prescriptions are automatically deleted after 12 months. The prescription log for the first 12 months has been reviewed.
The trial court then stated, in pertinent part, that the records do not contain any relevant and material evidence pertaining to the ability of the witness, Carla Ennis, to observe and recollect the occurrence which took place on May 25, 199, about which she gave testimony in the trial of the above cause on March 4, 1993.
The trial court then returned the records under seal to their custodians.
Subsequently, defendant asked us to "(1) set a briefing schedule regarding the remand for and (sic) in camera review of Carla Ennis' psychological records, and (2) obtain said psychological records for appellate review." In State v. Newton, Nos. 63939, 68569, slip op. at 2-3, 1997 WL 53012 (Mo.App.E.D.Feb.11, 1997) (Newton II ), we upheld the trial court's ruling for the reason that questions of relevancy are left to the discretion of the trial court, and its ruling will be disturbed only if an abuse of discretion is shown. We found that there was nothing to indicate such an abuse. However, we did not independently examine the psychological records.
Subsequently, our Supreme Court granted defendant's application for transfer of Newton II and issued its order stating:
[t]he cause having been transferred to this court thereby vacating the opinion filed in the court of appeals, the motion to (1) set briefing schedule regarding the remand for an in camera review of Carla Ennis' psychological records and (2) obtain said psychological records for review is sustained. The trial court is ordered to certify the medical records reviewed in camera as part of the record on appeal and forward said records under seal to the Court of Appeals, Eastern District. The cause is retransferred to the Court of Appeals, Eastern District, for such proceedings as may be necessary in light of the motion being sustained.
On October 1, 1997, defendant, by letter, advised us that the portion of his sustained motion related to a new briefing schedule was moot because both sides previously submitted supplemental briefs to our Supreme Court.
Pursuant to our Supreme Court's order, we conducted a review of Carla Ennis' records that were forwarded to us under seal by the trial court: Ennis' psychological records from Malcolm Bliss Mental Health Center and St. John's Mercy Medical Center for the period June 19, 1991 to August 17, 1995 and Ennis' prescription profile from JFK Clinic Pharmacy for the period September 13, 1995 to October 4, 1996. As noted in Newton I, 925 S.W.2d at 471[6-7], Ennis is presumed to be competent to testify absent a showing by defendant rebutting the presumption. A prior adjudication of mental incompetence or a record of confinement in a mental hospital is not conclusive; a witness must exhibit some mental infirmity and fail to meet the traditional criteria for witness competence. State v. Robinson, 835 S.W.2d 303, 307 (Mo.banc 1992). A witness is competent to testify if the witness shows: (1) a present understanding of, or the ability to understand upon instruction, the obligation to speak the truth; (2) the capacity to observe the occurrence about which testimony is sought; (3) the capacity to remember the...
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