State v. Gillian

• Decision Date: 28 June 2004
• Docket Number: No. 3836.,3836.
• Citation: 360 S.C. 433,602 S.E.2d 62
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Steve GILLIAN, Appellant.

360 S.C. 433

602 S.E.2d 62

The STATE, Respondent, v. Steve GILLIAN, Appellant.

No. 3836.

Court of Appeals of South Carolina.

Heard June 10, 2004.

Decided June 28, 2004.

Rehearing Denied September 23, 2004.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka and Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Warren B. Giese, of Columbia, for Respondent.

ANDERSON, J.:

Steve Gillian appeals a murder conviction arguing reversible error by the trial court in the admission of evidence concerning two prior burglaries and the denial of his right to fully cross-examine two State's witnesses. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Steve Gillian planned a lake house burglary which took place on Friday, January 26, 2001. After making maps for use in the burglary and copying a key he obtained to the home, Gillian recruited five younger boys, ages seventeen to eighteen, to actually enter the house for him. Jeremiah Page and Dustin Johnson were two of the young men recruited by Gillian. While the five boys unlawfully entered the home, Gillian waited at a nearby gas station. A five-shot "Taurus".38 caliber revolver was one of the items taken from the home.

The boys met Gillian at a local restaurant following the burglary. Gillian was furious at the group's failure to steal any items of value and threatened to kill them. However, Gillian was enthusiastic about the theft of the gun, which he placed in his car's trunk, stating he intended to use it to "do some dirt." Gillian and one other boy then returned to the home to steal additional items, some of which were taken to a wooded area near Gillian's parents' home.

Later that evening, Gillian unsuccessfully attempted to reach Johnson by telephone with the hopes of persuading him to purchase some bullets for the handgun. Johnson "had a fake I.D. that said he was 21." The following day, Gillian, an aspiring hip-hop performer, contacted an older associate in the music industry for the same purpose, but the man refused to buy bullets for Gillian. Thereafter, Johnson reluctantly agreed to purchase the bullets from a local Wal-Mart. Gillian, who gave Johnson the money to pay for the bullets, accompanied Johnson to the Wal-mart store. Both Johnson and Gillian were identified on store security video purchasing the bullets on Saturday, January 27. Gillian still possessed the handgun that afternoon.

On Saturday evening, Gillian attended various parties in the Irmo and Chapin area. Most of these parties were hosted by high school students whose parents were out of town. Around midnight, Gillian, Page (an accomplice in the prior burglary), and several friends, most of whom had been drinking, met at high school senior Michael Glenn's home. Shortly after arriving at Glenn's home, Gillian left this gathering to pick up his friend Jason Ward. Gillian, accompanied by Ward, returned to the party. In the early hours of Sunday morning, Gillian and Ward left the party without Page and drove to the apartment of one of Ward's co-workers.

After Gillian and Ward left the party, Page began acting violently. He was forcefully removed from the Glenn residence by two party attendees. Once he calmed down outside, Page asked the occupants if he could reenter the residence and use the phone to secure a ride home. Once inside the home, Page telephoned Gillian and informed him of the previous altercation. About 5:00 a.m., Gillian received a cell phone call. In response to the call, Gillian declared to Ward: "Jason, we got to go. Somebody just got shot. We got to go." Gillian and Ward returned to the party approximately ten minutes after Gillian spoke with Page.

Upon arriving at the Glenn residence, Gillian physically attacked at least four of the younger party attendees and demanded to see the two people who had thrown Page out of Glenn's house. Gillian slapped several partygoers and head-butted one in the face, breaking his nose. Gillian asked the partygoers "why they jumped [Page] and just threatened to beat them up for jumping his friend." After questioning the boys who had earlier escorted Page from the party and learning they had not seriously injured him, Gillian turned his rage upon the much smaller Page for misleading him, severely beating Page, who was "[c]rying and trying to cover his face."

At this point, Ward, who had been sitting quietly at the kitchen table, confronted Gillian about his behavior. Ward stated: "Why are you messing with these kids, man? They are scared of you. They don't want to fight you.... [Q]uit picking on these little high school kids." Gillian "told [Ward] that he was nothing and to shut up." Gillian then directed his intensified hostility toward his friend Ward, who calmly refused to fight Gillian despite minutes of attempted instigation and taunting. Ward eventually responded to Gillian's threats by quickly punching him "once or twice" and pinning him to the floor in front of several party attendees. After Gillian "agreed ... to calm down," Ward allowed him to stand up, but the threats continued. Around 5:30 a.m., Ward agreed to leave the party with Gillian. Ward said to Gillian, "Just take me home." As he left the Glenn residence, Gillian loudly declared to several party guests, "You will see this in the newspapers tomorrow."

Around 6:30 a.m., residents of an area in close proximity to the Boozer Shopping Center heard approximately four to five gunshots. Ward's body was found behind the shopping center at about 8:30 a.m. on January 28. Ward had four bullet wounds to the head and one to the neck. It was later established the wounds were caused by ".38-caliber copper-jacketed bullets" identical to those purchased earlier by Gillian. Markings on the four recovered bullets were consistent with bullets fired from a .38 caliber handgun manufactured by the "Taurus" company, as well as seven other manufacturers. The murder weapon was never recovered.

Gillian arrived at his parents' home around 8:30 a.m. on Sunday morning and entered his brother's bedroom. While speaking to his brother, he confessed he had "shot [Ward] several times." Prior to Ward's murder, Gillian had made comments to his cousin to the effect his music career would benefit from the reputation gained by killing another. According to Gillian's cousin, Gillian earlier professed that "if he had killed someone, it would make him real" and he "thought if he killed someone, he could appeal to the rap-type music crowd." Around 9:00 a.m., Gillian walked over to his cousin's house next door and entered his bedroom. In a drunken stupor, Gillian told his cousin he had killed someone, explaining that he lured the victim behind the jewelry store he had once robbed under the guise of showing the victim how he broke into the store. Select members of Gillian's family and friends knew of Gillian's robbery, months before, of several women's "Tag Heuer" watches from a jewelry store. Dems Jewelry Store, in Boozer Shopping Center, had reported a break-in and a resulting loss of thirty-four women's "Tag Heuer" watches in July of 2000.

Steve Gillian was later arrested and indicted for the murder of Jason Ward. The jury found Gillian guilty of murder. The judge sentenced Gillian to life imprisonment without parole.

ISSUES

I. Did the trial court err in allowing evidence of Gillian's two prior burglaries?

II. Did the trial court err in denying Gillian the right to fully cross-examine witness Jeremiah Page as to the possible sentence he was facing for first-degree burglary?

III. Did the trial court err by refusing to admit evidence of the attempted police ruse concerning "doctored" photographs of Gillian's car near the murder scene?

LAW/ANALYSIS

I. EVIDENCE OF PRIOR BURGLARIES

Gillian argues the trial court erred in admitting evidence of his two prior burglaries. Specifically, he maintains "[e]vidence of the other burglaries was not necessary to establish that [Gillian] had possession of a gun at the time of the murder." He contends the evidence was admitted in violation of Rules 403 and 404(b), SCRE, and State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). We disagree.

Generally, South Carolina law precludes evidence of a defendant's prior crimes or other bad acts to prove the defendant's guilt for the crime charged. State v. Pagan, 357 S.C. 132, 591 S.E.2d 646 (Ct.App.2004); State v. Weaverling, 337 S.C. 460, 523 S.E.2d 787 (Ct.App.1999). It is well established that evidence of other crimes or prior bad acts is inadmissible to show criminal propensity or to demonstrate the accused is a bad individual. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987); see also State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000) (finding that evidence of prior crimes or bad acts is inadmissible to prove bad character of defendant or that he acted in conformity therewith).

However, evidence of other crimes is generally admissible when it is necessary to establish a material fact or element of the crime charged. See Johnson, 293 S.C. at 324,360 S.E.2d at 319; State v. Byers, 277 S.C. 176, 284 S.E.2d 360 (1981); State v. Cheatham, 349 S.C. 101, 561 S.E.2d 618 (Ct.App.2002). Thus, such evidence is admissible when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the proof of the other; or (5) the identity of the person charged with the present crime. See Rule 404(b), SCRE; State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923); see also Anderson v. State, 354 S.C. 431, 581 S.E.2d 834 (2003) (explaining that Rule 404, the modern expression of the Lyle rule, excludes evidence of other crimes, wrongs, or acts offered to prove character of person in order to show action in...