State v. Gilmore
Decision Date | 19 October 1999 |
Citation | 22 S.W.3d 712 |
Parties | (Mo.App. W.D. 1999) State of Missouri, Respondent v. Keith Gilmore, Appellant WD55963 |
Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. David W. Shinn
Counsel for Appellant: Judith C. Larose
Counsel for Respondent: Philip M. Koppe
Opinion Summary: Keith Gilmore appeals from his convictions of second degree murder and armed criminal action, with concurrent sentences. Gilmore argues the trial court erred in (1) permitting the State to improperly argue that the jury impose the maximum sentence for the first time in its rebuttal closing argument; and (2) overruling his motion in limine and objection to hearsay testimony.
Division Four holds: (1) The trial court did not plainly err in permitting the State's argument on punishment. The State is not allowed to raise the issue of punishment for the first time in its rebuttal closing argument; however, Gilmore failed to properly preserve his claim of error by failing to object to the prosecutor's improper argument. In light of the brutality of Gilmore's crimes, and that the court ordered Gilmore to serve his sentences concurrently, this court cannot say that the State's improper argument caused Gilmore to suffer manifest injustice or a miscarriage of justice entitling him to plain error relief.
(2) The trial court did not err in overruling Gilmore's motion in limine and objection to evidence of an out-of-court statement he made the night after the murder. Gilmore's out-of-court statement, which he made in response to an inquiry as to whether he had killed a white man, was admissible as a tacit admission of a party opponent.
Keith Gilmore appeals from his convictions of murder in the second degree, section 565.021, 1 and armed criminal action, section 571.015. The trial court sentenced Mr. Gilmore to thirty years imprisonment for second degree murder and twenty-four years for armed criminal action. The trial court ordered the sentences served concurrently. On appeal, Mr. Gilmore argues that the trial court erred in (1) permitting the State to improperly argue that the jury impose the maximum sentence for the first time in its rebuttal closing argument; and (2) overruling his motion in limine and objection to hearsay testimony. Because this court finds that Mr. Gilmore did not suffer manifest injustice as a result of the State's arguing punishment for the first time in its rebuttal closing argument and the hearsay testimony was admissible as a tacit admission, the judgment of the trial court is affirmed.
The sufficiency of the evidence is not challenged on this appeal, so only a brief statement of the underlying facts is necessary. On the evening of December 7, 1996, Mr. Gilmore approached Don Hawley in the neighborhood of 24th and Olive in Kansas City. Mr. Hawley, a retired police officer who was working as a college recruiter, had an appointment to interview someone in the neighborhood. Mr. Gilmore, who was armed with a .38 caliber revolver, demanded money from Mr. Hawley. When Mr. Hawley flinched, Mr. Gilmore shot him in the eye. As Mr. Hawley lay bleeding on the ground, Mr. Gilmore searched Mr. Hawley's pockets and took his police badge. The shooting occurred outside the home of Dennis Wilson, an acquaintance of Mr. Gilmore's. Although Mr. Wilson did not see the shooting, he saw a man moving around at the back of a pickup truck parked in front of his neighbor's house. The man stood up and walked through Mr. Wilson's bushes to within two or three feet of where Mr. Wilson was standing, jumped a fence, and went through the alley. Mr. Wilson recognized the man to be Mr. Gilmore. Mr. Wilson and his girlfriend then walked to the rear of the pickup truck where they found Mr. Hawley lying on the ground. Mr. Hawley later died from the gunshot wound to his head. Mr. Gilmore was indicted for felony murder in the second degree, section 565.021.1, and felony armed criminal action, section 571.015.1.
At trial, several people who knew Mr. Gilmore testified to incriminating statements they heard Mr. Gilmore make both before and after the shooting. A few weeks before the shooting, Mr. Gilmore repeatedly told an acquaintance, Shantee Osborn, that he was broke and was going to rob someone. Several days before the shooting, Mr. Gilmore also told Mr. Wilson that he was going to rob someone.
Immediately after the shooting, as Mr. Gilmore was running out of the alley, he ran into Lonnel Taylor. Mr. Taylor asked Mr. Gilmore why he was running. After a moment of hesitation, Mr. Gilmore told Mr. Taylor that he had tried to rob a man, but shot the man in the eye after the man flinched. Mr. Gilmore told Mr. Taylor that he then checked the man's pockets to see if there was anything in them. When Mr. Taylor accused Mr. Gilmore of lying about the incident, Mr. Gilmore showed Mr. Taylor the .38-caliber revolver he used to shoot Mr. Hawley.
The night after the shooting, Ms. Osborn overheard someone asking Mr. Gilmore if he had killed a white man. The only thing Mr. Gilmore said in response was "Man, shut the f--- up." Also after the shooting, Mr. Gilmore talked to his cousin, Nekka Sumlin, with whom he was living at the time. Mr. Gilmore told Ms. Sumlin that he had been involved in a robbery at 24th and Olive, and he had touched the victim's briefcase during the robbery. Mr. Gilmore said that the victim had been shot and killed, and that he had buried the victim's badge.
In his defense, Mr. Gilmore denied shooting Mr. Hawley, offered evidence of an alibi, and claimed that in arresting him for the murder, the police "got the wrong guy." The jury returned a guilty verdict on both charges. The jury recommended sentences of thirty years imprisonment on the murder charge and twenty-four years on the armed criminal action charge. The trial court adopted the jury's sentencing recommendations. The trial court also ordered Mr. Gilmore to serve the sentences concurrently. This timely appeal followed.
As his first point, Mr. Gilmore asserts that the trial court erred in allowing the prosecutor to argue punishment for the first time in her rebuttal closing argument. Mr. Gilmore claims that because the prosecutor's argument left him without an opportunity to respond, he is entitled to a new trial. It is noted that Mr. Gilmore does not claim trial court abuse of discretion in its denial of his motion for a mistrial, but instead characterizes the trial court's error as the overruling of his objection to the argument.
A trial court's rulings on closing argument are reviewed only for an abuse of discretion. State v. Mahurin, 799 S.W.2d 840, 844 (Mo. banc 1990). To constitute reversible error, there must be both an abuse of discretion by the trial court and prejudice to the defendant as a result of such abuse. Id. The State is not permitted to raise the issue of punishment for the first time in its rebuttal argument. State v. Peterson, 423 S.W.2d 825, 830 (Mo. 1968). Whether an appellant's claim that the State improperly argued punishment in the rebuttal portion of its closing argument constitutes reversible error depends upon the application of several factors to the particular circumstances of the case. Id. at 831. Those factors include the following:
[W]hether a fair statement of the State's position has been made in some manner in its opening argument; whether any waiver has been made by the defendant, either by his counsel's own argument or by the failure to object properly and to preserve the point; and, lastly, a determination of the question of prejudice in view of all the circumstances.
Id. Applying these factors to this case, the State did not mention punishment in its initial closing argument, nor did it give any indication that it was seeking the maximum penalty. Thus, the State did not make a fair statement of its intention to seek the maximum penalty in its initial closing argument.
Whether Mr. Gilmore waived any objection to the State's argument, which is the second factor of the Peterson test, depends upon the how this court interprets the trial court's ruling on Mr. Gilmore's objection to the punishment argument. The argument, objection and ruling are as follows:
MS. MCGOWAN (prosecutor): . . . And when you go up there and you return your guilty verdicts, the only possible punishment in this case is the maximum. And when you go up and --
MR. LANCE (defendant's counsel): Objection.
(THE PROCEEDINGS RETURNED TO OPEN COURT.)
MS. MCGOWAN: Ladies and gentlemen, the maximum punishment is the only appropriate punishment in this case when someone takes someone's life.
* * *
From the sequence of the exchanges between counsel and the trial court, this court finds that the trial court overruled only Mr. Gilmore's motion for a mistrial, and not his objection to the prosecutor's first statement that the "only possible punishment" in this case was the maximum punishment. The trial court did not, as Mr. Gilmore claims, allow the State to improperly raise the issue of punishment in its rebuttal...
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