State v. Gillis

807 S.W.2d 513, 1991 Mo. App. LEXIS 311, 1991 WL 25826
CourtMissouri Court of Appeals
DecidedMarch 5, 1991
DocketNo. WD 42019
StatusPublished
Cited by1 cases

This text of 807 S.W.2d 513 (State v. Gillis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gillis, 807 S.W.2d 513, 1991 Mo. App. LEXIS 311, 1991 WL 25826 (Mo. Ct. App. 1991).

Opinion

NUGENT, Chief Judge.

Defendant Samuel E. Gillis appeals his conviction by a jury of stealing over $150.00 in violation of § 570.030.1

In his four points on appeal defendant Gillis complains of the admission of evidence of other crimes not charged against defendant (Points I, II and III), and of the improper argument of the prosecutor about an absent “witness” (Point IV).

Viewed in the light most favorable to the verdict, the evidence sufficiently establishes the following facts:

During the night of July 28-29, 1988, burglars entered a storage garage of Sun-glo Skylight Products in Kansas City. The garage contained a bundle of aluminum bars and the thieves stole five of them, [515]*515each valued at $126. The manufacturer had made those bars to Sunglo’s specifications and sold them only to Sunglo. Burglars had entered the garage several times before, the latest entry only the night before on July 27-28. Because of those burglaries, Sunglo had barred the garage doors by piling nine-by-ten foot skids against them. On the night of July 28-29, however, burglars entered by kicking out the plywood covering a broken window.

On the morning of July 29, Sunglo employees discovered the burglary and found the prints of tennis shoes on several aluminum bars lying on the garage floor.

Around nine o’clock that morning, defendant Gillis appeared at a salvage yard, Acme Metals, a buyer of nonferrous recyclable materials. He came alone driving an old, “beat up” pickup truck loaded with five aluminum bars later identified as the bars stolen from Sunglo. He and an Acme employee unloaded the bars and placed them on a scale.

Sunglo’s shipping manager had advised Larry Hand, Acme Metal’s manager, to watch for stolen Sunglo aluminum. Mr. Hand recognized the bars on defendant Gil-lis’ truck as Sunglo’s stolen aluminum and immediately notified Sunglo and the sheriff’s office. Shortly, a deputy sheriff and two Kansas City police officers arrested the defendant.

Police identified defendant's palm print on one of the aluminum bars he had put on the scale at Acme Metals and his tennis shoe prints as matching the shoe prints left by a burglar on aluminum bars remaining in Sunglo’s garage.. Larry Hand also recognized the defendant as a man he met on July 28 at a nearby service station driving the same dilapidated pickup truck. He noticed several aluminum bars in the truck when the defendant had offered them for sale. The bars did not match the bars defendant Gillis had in his possession the next day at Acme Metal.

At trial, defendant Gillis testified that the pickup truck belonged to a man he knew at a neighborhood convenience store called “Sarge.” He did not know Sarge’s last name. On July 28 he hired Sarge to come by the defendant’s mother’s house and pick him up at ten o’clock the morning of the 29th and take him to Payless to pick up some building materials for a construction job a Rev. Bailey had hired him to do. Mr. Gillis testified that Sarge came by about 7:00 or 7:15 on the morning of July 29 to defendant’s surprise. Sarge apologized, saying that he came by early because he had to “drop some iron or something off at a junkyard.” The defendant thought he had no choice but to go with Sarge on this side trip. He needed Sarge’s pickup truck to get the materials at Pay-less. He testified that on the way to the junkyard, Sarge lent him a pair of tennis shoes so that he would not ruin his dress shoes when they walked around the junkyard.

On the way to the junkyard, Mr. Gillis testified, the truck began “acting up,” so Sarge dropped off at a service station to “check on some battery cables,” instructing the defendant to coast the pickup on down the hill to the junkyard. Mr. Gillis did so, and when he reached the bottom of the hill he turned the pickup into the junkyard and parked it by the dock. Sarge came down the hill, put some vice grips on the battery cables and left. Mr. Gillis then helped the junkyard worker unload the pickup and place the load on the scale.

Each of defendant’s first three points on appeal bottoms itself on a claim of a violation of the general rule that in a criminal trial the court may not admit evidence of the defendant’s participation in another unrelated and uncharged crime unless that evidence logically tends to prove the defendant’s guilt of the crime for which he stands trial. State v. Kenley, 693 S.W.2d 79, 81 (Mo.1985).2 If none of the evidence in the trial connects the defendant to other unrelated and uncharged crimes, the rule does not apply. State v. Gilmore, 681 S.W.2d 934, 942 (Mo.1984); State v. Morris, 712 S.W.2d 728, 731 (Mo.App.1986). Accordingly, defendant’s first three arguments must fail because nothing in the [516]*516evidence regarding earlier burglaries of Sunglo had the slightest tendency to link defendant Gillis to those crimes.

In his fourth point, the defendant cries foul because in his closing argument the prosecutor argued to the jury.

Ladies and gentlemen, just as you can say that, you can look at this case and you can say there is no doubt in your mind that Sam Gillis was in that warehouse at 3030 Cherry on July the 29th because his footprints are in there, and this is the State’s case, ladies and gentlemen, right here. He cannot get away from that, and he knew he couldn’t all along until he finally found out this great story about Sarge.
And you’ll remember that, ladies and gentlemen, he had that story down pat. He sat in his truck, and Sarge said they were going out to the salvage yard. Well, I’ve got my brown good shoes on so I guess I’m going to have to go back and change. Well, say, Sarge can help you out here. He’s got an extra pair of tennis shoes here. Boy, these tennis shoes just happen to fit you. Why don’t you just go ahead and put these on. And then all of a sudden out of nowhere this man’s brown shoes take off and walk out of that truck somehow. They are gone. What a story, ladies and gentlemen. Do you believe that that is what happened in this case? There is no possible way that happened in this case. No possible way.
Who is Sarge? Where is Sarge? That’s all he knows about—
MR. SHANNON: May we approach the bench?

The defendant cites State v. Webster, 659 S.W.2d 286, 288 (Mo.App.1983), for the proposition that the prosecution may not argue an adverse inference if the witness appears equally available to the state and the defendant. The court can resolve the question of the absent witness’ availability by considering three factors: first, one party’s superior ability to know or identify the witness; second, the nature of the testimony one can expect the witness to give; third, the relationship between the particular party and the witness that might indicate whether the witness would more likely testify more favorably for one party than the other. Id.; see State v. Valentine, 587 S.W.2d 859, 864-65 (Mo.1979) (en banc).

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Related

State v. White
870 S.W.2d 869 (Missouri Court of Appeals, 1993)

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Bluebook (online)
807 S.W.2d 513, 1991 Mo. App. LEXIS 311, 1991 WL 25826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gillis-moctapp-1991.