State v. Newton, s. 63938

• Decision Date: 18 June 1996
• Docket Number: 68569,Nos. 63938,s. 63938
• Citation: State v. Newton, 925 S.W.2d 468 (Mo. App. 1996)
• Parties: STATE of Missouri, Respondent, v. Harold L. NEWTON, Appellant. Harold L. NEWTON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 468

925 S.W.2d 468

STATE of Missouri, Respondent, v. Harold L. NEWTON, Appellant.

Harold L. NEWTON, Appellant, v. STATE of Missouri, Respondent.

Nos. 63938, 68569.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 18, 1996.

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.

Before AHRENS, P.J., and SIMON and PUDLOWSKI, JJ.

SIMON, Judge.

Appellant, Harold Newton, appeals his sentences based upon findings of guilty by a jury of first degree murder, § 565.020 RSMo.1994, armed criminal action in connection therewith, § 571.015 RSMo.1994, kidnapping, § 565.110 RSMo.1994, and armed criminal action in connection therewith, § 571.015 RSMo.1994 (all further references shall be to RSMo.1994 unless otherwise noted). He was sentenced as a prior and persistent offender as follows: Count I, first degree murder, life in prison without the possibility of probation or parole; Count II, kidnapping, thirty years to be served consecutively to the sentence imposed in Count I; Count III, armed criminal action, fifteen years to be served consecutively to the sentences imposed in Counts I and II; and Count IV, armed criminal action, fifteen years to be served concurrently to the sentence imposed in Count III, but consecutively to the sentences imposed in Counts I and II. Appellant also appeals the denial of his Rule 29.15 motion without an evidentiary hearing. The appeals are consolidated herein pursuant to Rule 29.15(l ).

On appeal, appellant contends that the trial court erred in: 1) quashing his subpoena requesting Carla Ennis' (Ennis) psychological records and in finding her competent to testify without examining such records; 2) limiting appellant'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 appellant from examining Geraldine Clark (Clark) regarding Ennis' use of crack cocaine the night of the incident. Appellant also contends that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because: a) appellant's trial counsel failed to call Wayne Kibble as a witness; b) the prosecuting attorney knowingly used false or misleading evidence to obtain appellant's conviction; and c) newly discovered evidence would have prevented appellant from being found guilty of first degree murder. Cause remanded with directions.

Appellant does not contest the sufficiency of the evidence. In a light most favorable to the verdicts the facts are as follows. On May 25, 1991, at approximately 10:00 p.m., Ennis, Patricia Williams, Clark, and Neal Hurst (victim) were walking towards victim's home when they noticed a white four-door Dodge Shadow parked in front of his home. Ennis and victim approached the car, and Ennis stuck her head in the open window where she observed the driver of the car, Michael Johnson (Johnson). Johnson then placed a gun to her head and warned "Bitch, go, get away from the car." As she backed away from the car, Montez Woods (Woods) got out of the rear passenger seat, and holding a gun, told victim, "Punk, get in the car." As victim got into the car, Ennis ran to the front door of victim's house where she saw appellant come out of the house holding a gun. Appellant got into the car with Johnson, Woods, and victim. Ennis then called 911 to report the incident to the police.

In the early morning hours of May 26, 1991, police began pursuing the car, which at this point, had at least four occupants, one of which was victim. As the chase ensued, several gunshots were fired from inside the vehicle, after which victim dropped out of sight. At this time, a handgun was thrown from the passenger side window of the vehicle. As the pursuit continued, two more handguns were thrown from the passenger side of the car.

Eventually, the pursuit ended and Woods and appellant fled the car. Johnson, who remained, was arrested. Victim's body remained in the vehicle with five bullets in his chest and abdomen. He was dead by the time the pursuit ended. Woods was caught and arrested, but appellant escaped.

The next day, Ennis positively identified Johnson as the driver and Woods as the person in the right rear passenger seat. She also identified appellant as the third person involved in the kidnapping and murder. Furthermore, appellant's fingerprints were found on the outside of the right front passenger door of the white Dodge and his wallet was in the glove compartment. On June 18, 1991, the Kansas City Police arrested appellant at the Roadway Inn near Kansas City, Missouri.

The trial court held a pre-trial hearing to determine if Ennis was competent to testify. At the hearing, she testified that she had a present recollection of what happened, that she has testified about the incident on four separate occasions, that she understood that the oath places her under an obligation to tell the truth, and that she was oriented to the date and time. She also testified that she was not taking anti-psychotic drugs or crack cocaine on the date of the incident, or at any time that she has given testimony in this matter. She testified that she was prescribed the drugs Stelazine, Cogentin, and Prozac, but that she had only taken one pill of these three on one occasion in January, 1993, and never took any more. She testified that she was not experiencing hallucinations at any of the relevant times, and that she had not been committed to a mental institution since the murder. After this testimony, the trial court denied appellant's motion to find Ennis incompetent to testify, and denied his motion to produce her medical records because she asserted her physician-patient privilege.

At trial, the medical examiner determined that victim was most likely shot by the person in the right front passenger seat because of the trajectory of the bullets through victim's body, but he could not completely rule out the right rear passenger as the shooter. Appellant did not testify on his own behalf, but presented the testimony of several witnesses who provided him with an alibi during the kidnapping and murder. In addition, appellant presented the testimony of several witnesses to contradict Ennis' testimony, as well as to testify that Ennis had a bad reputation for truthfulness and honesty. The jury returned guilty verdicts on all counts.

On November 28, 1994, appellant filed his pro se Rule 29.15 motion, which was amended by appointed counsel on February 21, 1995. Thereafter, the motion court entered findings of fact and conclusions of law denying the amended motion without an evidentiary hearing.

In his first point on appeal, appellant contends that the trial court erred in quashing his subpoena requesting Ennis' psychological records and in finding her competent to testify without examining such records, because they contain exculpatory information in his favor. The State contends that said records are privileged and undiscoverable so long as Ennis asserts her physician-patient privilege as she did in this case, pursuant to § 491.060. However, the State concedes that this issue has not been addressed by Missouri courts.

Determination of competency of a witness to give testimony is for the discretion of the trial court and will not be reversed except for clear abuse. State v. Robinson, 835 S.W.2d 303, 307 (Mo.banc 1992).

Prosecutors must disclose, even without a request, exculpatory evidence, including evidence that may be used to impeach a government witness. U.S. v. Bagley, 473 U.S. 667, 674-77, 105 S.Ct. 3375, 3379-81, 87 L.Ed.2d 481 (1985). In order for the suppression of said evidence to rise to a constitutional violation, the evidence must be material in the sense that its suppression undermines confidence in the outcome of the trial. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

In U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the United States Supreme Court addressed the issue of whether a constitutionally-based or statutorily-based privilege overrides a defendant's right to have relevant and material evidence produced through discovery. In Nixon, the Court recognized the importance of privileges in protecting confidentiality, but held that such privileges are not expansively construed because they are in derogation of the search for truth. Nixon, 418 U.S. at 709-710, 94 S.Ct. at 3108. The Court further held:

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced ...

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.

Nixon, 418 U.S. at 711-712[45,46], 94 S.Ct. at 3109-3110. The Court concluded by holding that when the ground for asserting a privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. Nixon, 418 U.S. at 713[47,48], 94 S.Ct. at 3110. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. Id. To provide protection against public disclosure of the alleged...