State v. Gilmore

Decision Date11 September 1990
Docket NumberNo. WD,WD
Citation797 S.W.2d 802
PartiesSTATE of Missouri, Respondent, v. Frankie S. GILMORE, Appellant. 42242.
CourtMissouri Court of Appeals

David S. Durbin, Appellate Defender, Terri L. Backhus, Asst. Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.

GAITAN, Judge.

The defendant-appellant, Frankie S. Gilmore, appeals the jury conviction of robbery in the first degree under § 569.020 RSMo 1986. He was sentenced as a class X offender to twenty years in prison. He appeals alleging five points of trial court error. We affirm.

The appellant, Frankie S. Gilmore, was found guilty of first degree robbery by a jury in the Circuit Court of Jackson County in connection with the robbery of a convenience store on the afternoon of November 18, 1988.

At trial, the state called Florence Stringer, the appellant's aunt, in its case-in-chief. On cross-examination, Ms. Stringer was questioned by appellant's attorney about alleged coercive action directed towards her by the state. The substance of her testimony was that she was present to testify for the state not because of a subpoena, but because of threats by the state that she would be arrested and forceably brought in if she failed to appear. In an effort to rebut and clarify the testimony of Ms. Stringer, the state called Debbie McKinzey, the state investigator who had contacted Ms. Stringer. The defense objected to McKinzey's testimony claiming that she had been present during Ms. Stringer's testimony despite invocation of "the rule" and that her testimony would be purely collateral and irrelevant. The state also acknowledged prior to direct examination of McKinzey that she had not been endorsed as a witness prior to trial. Over appellant's objection, McKinzey was allowed to testify.

In its case-in-chief, the state called Detective Terry Barnes, one of the investigating officers, to testify. Over objection, Barnes testified that he had spoken with the appellant in the past and that during their conversation he had not noticed the defendant's gold tooth.

After both sides had rested, the defendant offered as part of the jury instructions, instructions "A" and "B" which were special cautionary instructions regarding the credibility of the eyewitnesses to the robbery. The trial court refused to submit these instructions to the jury. After the instructions had been submitted to the jury and a guilty verdict for robbery in the first degree had been returned, it was discovered that the verdict director for the robbery in the first degree charge contained an incomplete definition of "dangerous instrument." Appellant asked for, and was denied, a new trial on this ground.

Based on evidence of three prior felony convictions, the court classified the appellant as a "class X offender" under § 558.019 RSMo (Supp.1988) for purposes of sentencing.

The appellant makes five allegations of error.

I.

As both appellant and respondent acknowledge, Rule 28.02(f) makes it erroneous to give or fail to give "an instruction ... in violation of this rule or any applicable Notes on Use...." Rule 28.02(f). Error standing alone, however, is not sufficient to overturn the jury's determination of guilt. There must be a showing of prejudice to the appellant as a result of the error before there are grounds to upset the verdict. See State v. Smashey, 672 S.W.2d 154, 158 (Mo.App.1984); State v. Mee, 643 S.W.2d 601, 604 (Mo.App.1982); State v. Ward, 588 S.W.2d 728, 731 (Mo.App.1979).

Rule 28.02(f) requires that the existence of prejudice be "judicially determined." See also State v. Billingsley, 534 S.W.2d 484, 485 (Mo.App.1975). This judicial determination is qualified by a strong, though rebuttable, presumption that prejudice exists where there is anything less than "religious observation both as to the forms ... and instructions contained in [the] Notes on Use" of the Missouri Approved Instructions. Id., see also State v. Petary, 781 S.W.2d 534, 542 (Mo. banc 1989); State v. White, 622 S.W.2d 939, 943 (Mo. banc 1981). Starting with a presumption of prejudice, the reviewing court will consider the facts and the instructions together in deciding if it is "clearly shown" that no prejudice exists. Petary, 781 S.W.2d at 542; White, 622 S.W.2d at 943.

In the present action, the jury was instructed on both first degree robbery and second degree robbery. The verdict director for robbery in the first degree, however, failed to fully define the term "dangerous instrument." 1 Specifically, the instruction omitted the phrase stating that whether or not an instrument is "dangerous" is determined "under the circumstances in which it is used." 2 The victims testified that the robber threatened that if they did not turn over the money, he had "a piece" and would seriously hurt them.

Appellant argues that this omission was prejudicial in that, if fully instructed, the jury could have found that, under the circumstances in which it would be used, "a piece" was not readily capable of causing death or serious physical injury and thus there would be no finding of robbery in the first degree. In essence, the appellant seems to be arguing that prejudice exists because without the full definition of dangerous instrument the jury could not "consider wholly whether or not the defendant was guilty of robbery in the first degree." Further, appellant argues that had the jury been properly instructed, they would have found him guilty not of robbery in the first degree but of the lesser included offense of robbery in the second degree.

Both victims testified independently that they believed that when the robber stated that he had "a piece" he was referring to a gun, and such a belief was not unreasonable. See State v. Humphrey, 789 S.W.2d 186, 189 (Mo.App.1990). Further, the issue is not whether the robber had a gun or displayed a gun but rather what the victims believed. State v. Blevins, 581 S.W.2d 449, 453 (Mo.App.1979) (held that it was not error to instruct the jury as to robbery by means of a dangerous and deadly weapon where the victim saw neither a knife or gun during the robbery but believed the assailant was carrying a knife). There was no evidence before the jury that could be reasonably construed as implying that "a piece" meant anything other than a gun. Given that a loaded firearm is "readily capable of causing death or serious physical injury" under virtually all circumstances, the insertion of the omitted phrase would have been nothing more than a meaningless redundancy.

In addition, the jury was properly instructed on robbery in the second degree. Had they determined that the robbery was accomplished by threatened use of an instrument not "dangerous," the option of convicting the appellant on the lesser offense was clearly before them. Adding the omitted phrase to the verdict director for the charge of first degree robbery would not have altered or foreclosed this option.

In examining the instructions submitted to the jury it is clear that the trial court was in error in not submitting the full definition of "dangerous instrument" to the jury. It is equally clear, however, that the appellant was not prejudiced by this error. Whether the missing phrase had been inserted in the definition of "dangerous instrument" or not, the outcome would not have been altered. If the jury believed that use of a "dangerous instrument" was threatened, the only available evidence as to the nature of the instrument was that it was believed to be a gun. That being so, inclusion of the phrase is pointless. If the jury had not believed use of a "dangerous instrument" was threatened, the proper instruction for the lesser offense was available. Prejudice has been defined as creating a likelihood that the instructions will confuse or mislead the jury. State v. Billingsley, 534 S.W.2d 484, 486 (Mo.App.1975); State v. Ward, 588 S.W.2d 728, 731 (Mo.App.1979). Given the facts before the jury, the submitted instructions, though erroneous, did not create a likelihood of confusing or misleading the jury and thus were nonprejudicial. Therefore, the jury verdict should not be disturbed.

II.

Appellant's second contention is that the trial court erred in allowing the prosecution to call Debbie McKinzey, a state investigator, to testify. Specifically, appellant claims Ms. McKinzey's testimony was improper because: (1) although "the rule" had been invoked, Ms. McKinzey was present for the testimony of Florence Stringer, (2) Ms. McKinzey was not endorsed as a witness by the state prior to trial, and (3) the testimony of Ms. McKinzey should have been excluded as a purely collateral matter. Testimony by Stringer elicited on cross-examination by appellant's counsel contained allegations of prosecutorial misconduct which were not anticipated by the state. The prosecution called Ms. McKinzey exclusively to clarify and rebut the allegation made by Stringer that her presence as a witness for the state was a product of coercion by the state investigator, Ms. McKinzey.

Appellant first argues that it was error to allow McKinzey to testify in that despite "the rule" being in effect, McKinzey was present in the courtroom during all of Stringer's testimony. Appellant claims prejudice in that Ms. McKinzey "could tailor her responses to directly contradict anything that Ms. Stringer had testified to." Violation of "the rule" does not, however, automatically bar admission of testimony by the offending witness. Rather, exclusion of the testimony lies within the sound discretion of the trial court, State v. Lord, 286 S.W.2d 737, 741 (Mo.1956), which will generally be exercised only where the violation of "the rule" occurs under special circumstances. See United States v. Kiliyan, 456 F.2d 555, 560-61 (8th Cir.1972) (citing Holder v....

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  • State v. Anderson
    • United States
    • United States State Supreme Court of Missouri
    • April 20, 2010
    ...181 S.W.3d at 74; Ervin, 979 S.W.2d at 158. Error results when a circuit court fails to give a mandatory instruction. State v. Gilmore, 797 S.W.2d 802, 805 (Mo. App.1990). However, reversal is only warranted when the instructional error is so prejudicial that it deprived the defendant of a ......
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    • January 26, 2010
    ...v. Ervin, 979 S.W.2d 149, 158 (Mo. banc 1998). Error results when a trial court fails to give a mandatory instruction. State v. Gilmore, 797 S.W.2d 802, 805 (Mo. App. 1990). However, Deck did not object when the trial court failed to read MAI-CR 3d 300.03A at the beginning of death-qualific......
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