State v. Joles

Decision Date23 June 1988
Docket NumberNo. 53435,53435
Citation755 S.W.2d 622
PartiesSTATE of Missouri, Respondent, v. Thomas P. JOLES, Appellant.
CourtMissouri Court of Appeals

Lew A. Kollias, Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Carrie Franke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

GARY M. GAERTNER, Presiding Judge.

Defendant, Thomas P. Joles, appeals from a jury conviction of seven counts of stealing by deceit, in violation of RSMo § 570.030 (1986). He was sentenced as a persistent offender to a term of fifteen years on count I, a consecutive term of seven years on count II, and concurrent terms of fifteen years on counts III through VII, for a total of twenty-two years imprisonment. Defendant raises two issues on appeal. He argues the trial court erred in allowing the State to introduce into evidence the deposition of a certain witness because that witness was not an "essential witness" as defined in RSMo § 492.303 (1986). Defendant also alleges the trial court committed plain error in failing to declare a mistrial or take other corrective action because the prosecutor's comments during closing argument were improper. Finding defendant's contentions to be without merit, we affirm.

The State adduced the following evidence at trial, which evidence essentially detailed seven incidents of stealing by defendant. Defendant came by Clara Norman's house on December 7, 1984, and offered her a free termite inspection, after which inspection he told her that he had found a termite's nest. She agreed to pay him $384.00 for termite control, and she in fact did pay him $3531.00 for other home repairs. Defendant sprayed part of her house for termites but never finished the job. As to the other repairs, she told defendant she was dissatisfied with his work; defendant promised to return her money but never did so. Defendant approached Elmer Curnuette at the latter's house on March 15, 1985, and the two men agreed defendant would put siding on Curnuette's house. Curnuette paid defendant $2750.00; defendant never performed any work on the home. Defendant went to Irene Lohman's house in April 1985, and defendant and she agreed that he would do some siding work on her house. She paid defendant $1054.00; defendant never performed any work on the home. Defendant approached Margaret Paul at her house in April 1985, and the parties agreed defendant would perform various home repairs. She paid defendant $2500.00; defendant performed none of the agreed upon work. Jane Hoffman and defendant, on January 14, 1986, agreed defendant would perform various improvements on her house. She paid defendant $500.00; defendant completed none of the improvements. Defendant went to Marcella Tucker's house on June 12, 1986, and defendant and she agreed defendant would spray her house for termites, put up siding and perform work on the foundation. She paid defendant $3960.00; aside from spraying the house and pulling off some shingles, defendant performed no other work. Defendant and Samuel Greer agreed on July 30, 1986, that defendant would spray Greer's house for termites. Greer paid defendant $500.00; defendant indicated to Greer that he completed the job while Greer was inside the house. Several witnesses who were familiar with pesticides testified defendant had not applied pesticides around the houses where he had contracted to perform work.

The deposition of Grace Porchey was also introduced into evidence. She explained that defendant agreed to spray her home for termites in exchange for $375.00. Mrs. Porchey paid defendant $375.00; defendant performed none of the agreed upon work. In contrast to Lohman, Curnuette, Paul, Norman, Hoffman, Tucker and Greer, defendant was not charged with stealing from Porchey. Additional facts will be set forth as they become warranted by our discussion of the issues.

In his first point, defendant maintains the trial court erred when it allowed the State to take and introduce into evidence the deposition of Grace Porchey. Section 492.303 provides that a deposition may be taken by the State where a person is an "essential witness." RSMo § 492.303.1 (1986). One is an essential witness if:

[He] is an eyewitness to a felony or if a conviction would not be obtained without his testimony because the testimony would establish an element of the felony that cannot be proven in any other manner.

RSMo § 492.303.1 (1986) (emphasis added). Further, section 492.303.3 states that any deposition obtained in accordance with this statute may be used at trial, insofar as it is otherwise admissible under the rules of evidence. Defendant asserts "it is clear the legislature intended" that, in order for one to be an essential witness, one must be an eyewitness to a charged offense, which Porchey was not; however, defendant provides no support for this proposition and this court's research yields no basis for such a holding. The plain language of the statute states that one is an essential witness if he "is an eyewitness to a felony." RSMo § 492.303.1 (1986) (emphasis added). As the facts previously set forth show, Porchey's testimony demonstrated that she was an eyewitness to a felony. Moreover, even if the trial court erred in allowing the State to depose Porchey and introduce the deposition...

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9 cases
  • Griffith v. Larkins
    • United States
    • U.S. District Court — Eastern District of Missouri
    • April 10, 2012
    ..."[s]end [the defendant] to prison for the rest of his life so he's not out raping any other little girls"); see also, State v. Joles, 755 S.W.2d 622 (Mo. App. E.D. 1988) (criticizing prosecutor's argument that the defendant is "going to be doing the same thing again" unless he is convicted ......
  • Clemons v. Steele
    • United States
    • U.S. District Court — Eastern District of Missouri
    • November 28, 2011
    ...statements made by the prosecutor arguing for conviction based on the Movant's past or future crimes. Movant cites State v. Joles, 755 S.W.2d 622, 624 (Mo. App. E.D. 1988), where the prosecutor argued that the defendant was "going to do the same thing again, unless he was convicted and inca......
  • State v. Chapman, s. 67368
    • United States
    • Missouri Court of Appeals
    • November 5, 1996
    ...is limited to instances where manifest injustice or a miscarriage of justice will result if such review is not invoked. State v. Joles, 755 S.W.2d 622, 624 (Mo.App.1988). A review of the evidence of Defendant's guilt, along with the prosecutor's argument in its entirety, does not support a ......
  • State v. Williams, s. 59937
    • United States
    • Missouri Court of Appeals
    • April 27, 1993
    ...should not form the basis for reversal unless the comment had a decisive affect on the jury's determination. State v. Joles, 755 S.W.2d 622, 624 (Mo.App., E.D.1988). The jury heard firsthand accounts of a very violent, gory murder. An obscure reference to a collateral matter, though erroneo......
  • Request a trial to view additional results
3 books & journal articles
  • Chapter 8 801 Definitions
    • United States
    • The Missouri Bar Evidence Guide Deskbook
    • Invalid date
    ...would establish an element of the felony that cannot be proven in any other manner.” Id. (emphasis added); see also State v. Joles, 755 S.W.2d 622, 623 (Mo. App. E.D. 1988). Exception (2)—Statement under belief of impending death “A dying declaration, in order to be admissible as such, must......
  • Section 25.29 Areas of Improper Argument by the Prosecutor
    • United States
    • The Missouri Bar Criminal Practice Deskbook Chapter 25 Closing Argument
    • Invalid date
    ...It is improper for the state to argue to the jury that they should convict based on the defendant’s future dangerousness. State v. Joles, 755 S.W.2d 622 (Mo. App. E.D. 1988). · It is improper for the state to argue that the jury should convict the defendant based on racial prejudice. State ......
  • Section 25.11 Convictions as Deterrents
    • United States
    • The Missouri Bar Criminal Practice Deskbook Chapter 25 Closing Argument
    • Invalid date
    ...other crimes. State v. Couch, 523 S.W.2d 612 (Mo. App. W.D. 1975); State v. Buford, 619 S.W.2d 777 (Mo. App. W.D. 1981); State v. Joles, 755 S.W.2d 622 (Mo. App. E.D. 1988); see also State v. Kriebs, 978 S.W.2d 460 (Mo. App. S.D. 1998). But the court of appeals has permitted the state to ar......

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