State v. Watkins, 14801
| Decision Date | 07 January 1987 |
| Docket Number | No. 14801,14801 |
| Citation | 724 S.W.2d 674 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Leroy J. WATKINS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Nancy A. McKerrow, Columbia, for defendant-appellant.
Defendant, Leroy J. Watkins, was charged with, and jury-convicted of, assault in the first degree. § 565.050, RSMo Cum.Supp. 1984. The trial court, after finding Watkins to be a prior and persistent offender, due to two prior felony convictions, affirmed the jury verdict of guilty, and sentenced him to 20 years' imprisonment.
The sufficiency of the evidence to sustain the conviction is not questioned on appeal. It suffices to say that evidence was introduced from which the jury could have found, beyond a reasonable doubt, that on the evening of January 13, 1986, Watkins assaulted William Curtis Meyers by repeatedly striking him in the face with his fist, and beating his head against a urinal located in the men's rest room of the Pub Bar in Joplin, Missouri. As a result of the beating, which caused serious head injuries, Meyers suffered an intraventricular hemorrhage, and episodes of respiratory failure.
On appeal, Watkins first contends:
The trial court erred in overruling appellant's motion for a new trial on the grounds that there was an error in the transcript of the preliminary hearing which was unknown to appellant until after the trial because such ruling deprived appellant of his due process right to a fair trial in that the erroneous transcription deprived appellant of his only opportunity to impeach the testimony of Jack D. French, the state's principal witness concerning the time he arrived at the Pub Bar on January 13, 1986.
The point relied on does not state what the alleged error in the transcript was, or how it could have prejudiced Watkins. The point, as written, is in violation of Rule 30.06(d), 1 as it does not explain why the trial court erred, and preserves nothing on appeal. Plain error review of the issue under Rule 30.20 is granted, ex gratia, due to the relative severity of the sentence imposed.
Jack D. French witnessed the assault, and was a witness for the state. At the preliminary hearing, he testified that he had entered the bar at 3 p.m., and had spent most of the afternoon and evening, prior to the assault, talking and drinking with friends. When his testimony was transcribed, for some reason unknown to us, the transcript read that French had arrived at the bar late in the afternoon, rather than 3 p.m. At trial, French testified he arrived at the bar about noon. Watkins' attorney contends that he did not know of the misstatement in the transcript until after the trial, and that, had he known, he could have more effectively cross-examined French for the purpose of affecting his credibility, as to when he arrived at the bar.
The logic of this argument escapes us. In the first place, it seems to us that "3 p.m." and "late in the afternoon" denote approximately the same time of day. Also, assuming that Watkins' attorney had known, at time of trial, that French had testified at the preliminary hearing that he had arrived at the bar at 3 p.m., rather than late in the afternoon, it is inconceivable how that fact could have changed the scope of the cross-examination.
Finally, Watkins terms the tardy knowledge in question as "newly discovered evidence." In order to obtain a new trial on that basis, it must be conclusively shown that (1) the evidence came to the knowledge of the defendant after trial, and (2) due diligence would not have helped him to discover the evidence sooner, and (3) the evidence is so material that it would probably change the result if the case were tried again, and (4) the evidence is not cumulative or used merely to impeach the credibility of a witness. State v. Coleman, 660 S.W.2d 201, 221 (Mo.App.1983).
We doubt if the "newly discovered evidence" here is material, but even if it was, it could only have been used to impeach the trial testimony of French. In such cases, a new trial is not justified. State v. Ellis, 710 S.W.2d 378, 388 (Mo.App.1986).
In his remaining point relied on, Watkins asserts the trial court erred in failing to sua sponte declare a mistrial when state's witness Mark Richardson, who is a Joplin police officer, testified as follows:
Q. And you patrol in a car, is that right?
A. Yes, sir. I patrol in a unit, I can make traffic stops as a detective can, but it's more my job. I...
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Watkins v. State
...he was sentenced to 20 years' imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Watkins, 724 S.W.2d 674 (Mo.App.1987). The first four of movant's eight points relied on pertain to the prosecutor's cross-examination of movant at the jury Movant ......
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Watkins v. State, 17116
...first degree, § 565.050, RSMo Cum.Supp.1984. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Watkins, 724 S.W.2d 674 (Mo.App.1987). The instant motion, actually a second amended motion, was later filed and denied after evidentiary hearing. Movant appealed ......
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Watkins v. State
...criminal offense of assault in the first degree. § 565.050, RSMo Cum.Supp.1984. That conviction was affirmed on appeal. State v. Watkins, 724 S.W.2d 674 (Mo.App.1987). Appellant is presently incarcerated serving the sentence imposed in that In 1987 appellant filed a post-conviction motion p......