State v. Gilmore

Citation681 S.W.2d 934
Decision Date18 December 1984
Docket NumberNo. 65381,65381
PartiesSTATE of Missouri, Plaintiff-Respondent, v. George Clifton GILMORE, Defendant-Appellant.
CourtUnited States State Supreme Court of Missouri

Robert B. Ramsey, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., George Cox, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Judge.

Defendant George Gilmore was convicted by a jury of capital murder, § 565.001, RSMo 1978, for his participation in the robbery and slaying of Woodrow Wilson Elliott. The jury recommended the death penalty and the defendant was sentenced accordingly. Defendant alleges nearly 30 instances of error, which have been assimilated into four major categories: 1) the trial court's ruling on motions before and during the trial prevented the defendant from properly preparing and presenting an effective defense; 2) the prosecutor's actions during the trial and his arguments and examination of witnesses exceeded the bounds of propriety; 3) trial court rulings during the jury selection were erroneous; and 4) the imposition of the death penalty was unconstitutional, disproportionate and excessive.

None of the alleged errors warrants reversal, and the judgment is affirmed.

In October 1980, defendant, his wife and her five children 1 lived in a two bedroom trailer in Mineral Point, Missouri. Residing with them were defendant's brother, Norman Gilmore, defendant's sister and her six children and the sister's boyfriend, Leonard Laws. This made for a total of five adults and 11 children in the trailer. None of the adults was gainfully employed.

In need of funds, defendant contrived a plan whereby he and his homemates could gain some "easy money." Defendant suggested that he, Norman Gilmore and Leonard Laws would prey on elderly persons, robbing them of their money and then killing them to silence their tongues and prevent any identification. It was defendant's theory that elderly people did not trust banks and kept substantial sums of money in their houses. 2

Norman Gilmore and Laws readily agreed to follow defendant's malevolent plan. In this case, Woodrow Wilson Elliott was selected by defendant to be his somewhat perfect victim. Poor Mr. Elliott, also known as Mr. Wilson, was elderly, lived alone and was handicapped from birth by the absence of legs and one arm. Defendant had known Elliott since he was a child and was fully aware of his disability.

In the early morning hours of October 8, 1980, defendant, Norman Gilmore and Laws traveled to Mr. Elliott's home, awakened him and then kicked and choked him to unconsciousness. The trio then ransacked the home and found $4,600 which was hidden in a jar. As the victim commenced to regain his senses, defendant ordered Laws to "take care of him." Laws complied with defendant's command and killed the hapless victim by stabbing him in the head with a knife, the force of the blow bending the knife blade. The three men then set fire to the victim's house and returned to their cramped quarters in Mineral Point.

Police and fire department officials were alerted to a fire at the Elliott residence and arrived to find the house engulfed in flames. The victim's body was charred beyond recognition, and his death originally was ruled accidental. Later investigation revealed very low levels of carbon monoxide saturation, indicating that the victim died prior to the fire.

Elated at their success from the Elliott robbery, the defendant and Laws bragged about the crime. They attempted to entice two other men, Robert Gilmore, a deceased cousin, and Bob DeClue, into joining the senseless and meretricious conspiracy to kill the elderly. The defendant rationalized that he was doing the victims a "favor", because the elderly had no reason to live.

Robert Gilmore and DeClue notified police, and defendant and Laws were arrested a short time later. While in custody, the defendant gave a taped confession to the police of his involvement in the crime. Norman Gilmore also was arrested for his part in the Elliott murder. Norman, however, pleaded guilty to a lesser charge and agreed to testify as a state's witness.

I.

Initially, defendant alleges that he was prevented from presenting his best defense due to trial court rulings prior to and during trial; the first being the refusal to order a psychiatric examination for him.

Motion for the examination was made 48 days prior to the scheduled trial date and on objection by the state, the motion was overruled. Despite defendant's contrary assertion, there was no error in this ruling.

Defendant had been the beneficiary of seven prior psychiatric examinations, including two in this cause. Five of the examinations were made in connection with other capital murder charges against defendant pending at the time as this case. None of the examinations disclosed a mental disease or defect within the meaning of Missouri's criminal statutes, §§ 552.020 and 552.030, RSMo Cum.Supp.1983.

Section 552.020.5 allows written request of another examination if given within five days of a previous psychiatric report, and the trial court is vested with broad discretion in granting or denying an untimely motion for another examination. State v. Collier, 624 S.W.2d 30, 33 (Mo.App.1981). Defendant concedes that there was no timely objection to the prior reports or request for another examination. Under the circumstances of this case, it is manifest that the trial court's refusal to order an eighth mental examination was not an abuse of discretion.

Defendant argues that the trial court's ruling against the additional mental examination precluded investigation of the defense of diminished mental capacity due to his low I.Q.; that his mental capacity had never been fully assessed. But this is not so.

A review of the transcripts of defendant's two other capital murder trials, transcript at 605 (guilt phase), State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984); transcript at 65 (sentencing phase), State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983), reveals that a psychiatrist testified on defendant's behalf and placed defendant's I.Q. at a level between 70 and 85. 3 During trial in this case, defendant's counsel made frequent reference to the earlier trials and acknowledged familiarity with the transcripts. Due to his acquaintance with the testimony in the prior trials, defendant's counsel cannot justify an excuse of unawareness of defendant's intelligence level or that there had been no estimation made of his mental capacity.

There is yet further reason for rejecting defendant's low I.Q. defense. That factor, standing alone, will not serve as licit basis for a defense of diminished mental capacity. See State v. Shaw, 636 S.W.2d 667 (Mo. banc 1982), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982), (I.Q. of 73 will not serve as evidence of diminished mental capacity); State v. Brizendine, 391 S.W.2d 898 (Mo.1965), (I.Q. of 74 did not establish mental disability to provide excuse or defense to crime).

Defendant next raises three instances in which the trial court restricted cross-examination of two state's witnesses, Norman Gilmore and Robert DeClue. There is no need to dwell on this matter. It is sufficient to note that in each instance, defense counsel's questions were either repetitive, improperly phrased or argumentative. "Although cross-examination is a fundamental component of confrontation, it is not unlimited." State v. Russell, 625 S.W.2d 138, 141 (Mo. banc 1981). A trial court has broad discretion to disallow repetitive and harassing interrogation, to limit attacks on general credibility, and to preclude attempts to elicit irrelevant, collateral or stale matters. Id. Further, in each of the instances, the jury received the gist of the testimony that the defense counsel attempted to develop. Therefore, even if there had been error in sustaining objections to these isolated questions, the court's rulings were not prejudicial to the defendant. State v. Butler, 534 S.W.2d 832, 835 (Mo.App.1976).

Defendant also avers that the trial court failed to hold a hearing on his motion to suppress his confession to the Elliott murder. This point is denied, as the transcripts from the hearing on this matter belie the assertion.

Defendant alternatively argues that the hearing on the motion to suppress was improperly combined with motions made in another murder case. He contends this violated § 565.004, RSMo Cum.Supp.1983. This contention also fails. The statute cited by defendant, assuming it would preclude the joinder of two suppression hearings, was not in effect at the time these motions were heard. Secondly, it is clear that the combined hearing was held for the convenience of all of the parties, as defendant was being represented by the same counsel in both murder cases which were pending in St. Louis County.

The next alleged error is that defendant was unable to adequately prepare a defense due to the court's refusal to appropriate funds for witnesses. State v. Holland, 653 S.W.2d 670, 677-78 (Mo. banc 1983), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983), and State v. Woods, 662 S.W.2d 527, 533 (Mo.App.1983), are dispositive on this point. There is no constitutional mandate to provide witnesses for the defense at state expense. "Whether to provide public funds to aid an accused in the preparation of his defense is within the discretion of the trial court." State v. Holland, 653 S.W.2d at 678. But for one exception, the defendant's request was ambiguous. There was no abuse of discretion in the trial court's refusal to allow defendant a "blank check" for the employment of witnesses.

The only witness specifically identified was Dr. James Gilsanin, a professor of sociology, who was to testify as to the deterrent value of the death penalty. It is aphoristic that the sentencing phase of the trial is not...

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