State v. Miller

• Decision Date: 21 November 2006
• Docket Number: No. WD 65596.,WD 65596.
• Citation: State v. Miller, 208 S.W.3d 284 (Mo. App. 2006)
• Parties: STATE of Missouri, Respondent, v. William N. MILLER, Appellant.
• Court: Missouri Court of Appeals

Page 284

208 S.W.3d 284

STATE of Missouri, Respondent, v.William N. MILLER, Appellant.

No. WD 65596.

Missouri Court of Appeals, Western District.

November 21, 2006.

Jeremiah W.(Jay) Nixon, Atty. Gen., Robert.J. (Jeff) Bartholomew, Assistant Attorney General, Jefferson City, MO, for respondent.

Karen Bourgeois, Columbia, MO, for appellant.

Before HOWARD, C.J., and ELLIS and SMITH, JJ.

VICTOR C. HOWARD, Chief Judge.

DefendantWilliam N. Miller was convicted by jury of first-degree robbery with a deadly weapon.He now appeals that conviction.He argues the trial court abused its discretion by admitting into evidence a gun found in a car parked outside his home and by allowing the State to repeatedly employ leading questions during the presentation of its case.

Background

Miller and two accomplices robbed a convenience store early in the morning of July 15, 2004.The store was equipped with several security cameras; however, Miller wore a mask during the commission of the robbery.Miller and an accomplice used two identical silver semiautomatic handguns to threaten the clerk and three bystanders.A witness noticed and the security camera captured images of Miller's distinctive Nike Air Jordan shoes.The robbers grabbed about $315 out of the cash drawer and left the convenience store.

Police arrested one of Miller's accomplices approximately two weeks after the robbery, and he told the police that Miller was the masked robber.Miller was subsequently arrested and his home searched.At his home police found Nike Air Jordan shoes identical to those worn by the masked robber at the scene of the crime.Police also found several nine-millimeter rounds and an expended cartridge in his bedroom.Police opened a safe in the master bedroom, which contained title to a Buick Riviera parked outside the home.While the title was not in Miller's name, it was found in an envelope addressed to Miller.Miller also exercised control over the car.The police searched the Buick.Hidden in the back seat they found a nine-millimeter Ruger handgun.The gun found in the Buick was consistent with the bystander's limited statements concerning the type of gun used in the robbery.One of the accomplices also said it was "identical" to the gun used at the robbery.The expended shell casing found in Miller's bedroom had been fired from the gun found in the Buick.

Miller also made incriminating statements in a telephone conversation with his girlfriend while he was incarcerated.She told him the police took his shoes and had shown her pictures of the robbery.His girlfriend said, "I just want to say one thing: I wish you would have listened to me and kept your ass at home."Miller replied, "I wish I would have too.I wish I would have, man.When it pours, it rains.When it rains, it pours.It poured on my ass.It poured on me."

In his defense, Miller introduced evidence that one of his co-conspirators lived with him and had access to the Buick, his shoes, and bedroom.The accomplice had previously entered a guilty plea for the robbery.The other accomplice had committed several other robberies in the area and accepted a plea bargain of twenty years to testify against Miller.Both accomplices thus had substantial motive to implicate Miller.

During trial, the State asked several leading questions of their witnesses.The court sustained several objections and overruled others.Other leading questions attracted no objection from Miller.The court also admitted, over Miller's objection, the gun found in the back seat of the Buick.The State did not introduce explicit, unassailable evidence that Miller owned the gun or that the gun admitted was the gun used during the robbery.After deliberation the jury convicted Miller, and the court sentenced him to thirty years incarceration.After filing a motion for a new trial, he now timely appeals his conviction.

Admission of the Gun into Evidence

Standard of Review

The admission of evidence at trial will only be disturbed after the aggrieved party demonstrates the trial court abused its discretion.State v. Simmons,955 S.W.2d 729, 738(Mo. banc 1997).An abuse of discretion will be found only where the ruling in question clearly offends the logic of the circumstances or appears arbitrary and unreasonable.State v. Strughold,973 S.W.2d 876, 887(Mo.App. E.D.1998).Furthermore, error alone will not compel remand.The error must be so prejudicial that it deprived the defendant of a fair trial.State v. Tokar,918 S.W.2d 753, 761(Mo. banc 1996).The defendant must show a reasonable probability that the verdict would have been different had the prejudicial error not occurred.State v. Dizer,119 S.W.3d 156, 164(Mo.App. E.D.2003).

Analysis

All evidence admitted must be logically relevant, or make a material fact either more or less probable.State v. Smith,32 S.W.3d 532, 546(Mo. banc 2000).

[E]vidence is relevant to show that the accused owned, possessed or had access to tools, implements, or any articles with which the particular crime was or might have been committed, and that he owned or had such weapons in his possession prior to or shortly after the commission of the crime.

State v. Stancliff,467 S.W.2d 26, 30(Mo.1971).Furthermore, admissible evidence must be legally relevant.Legally relevant evidence is evidence with a probative value not outweighed by its prejudicial effect.¹Prejudice in this context refers to confusion of the issues or otherwise misleading the jury.State v. Sladek,835 S.W.2d 308, 314(Mo. banc 1992).

Miller argues the admission of the gun and related testimony into evidence was an abuse of discretion because it was not logically relevant.He states, "[t]he logical relevancy of the gun is tenuous at best."We disagree.Without doubt, the existence of a gun similar to that used in the robbery in a place under Miller's control makes his identity as the masked robber more likely.The gun found demonstrates that the defendant had greater access to a gun consistent with the description of the gun used during the crime than would be the case had no gun been discovered."[L]ogical relevance has a very low threshold."State v. Anderson,76 S.W.3d 275, 277(Mo. banc 2002).Each piece of logically relevant evidence need not be a slam-dunk; it must only be evidence which makes a fact of consequence more probable than not.The gun is logically relevant.

Whether the gun is legally relevant is a more difficult question."[L]ogically relevant evidence is excluded if its costs outweigh its benefits."Id. at 276.Miller argues the evidence of the gun was not legally relevant because the State produced no conclusive evidence that the gun found in the Buick was the gun used at the scene of the crime.Thus, he says, the jury was left to speculate whether Miller hid the gun in the car or used it in the robbery.He asserts that the unfair prejudice caused by the gun evidence far outweighed any possible probative value.

Miller primarily relies on State v. Anderson,76 S.W.3d 275(Mo. banc 2002).In that case, the defendant was convicted of robbery and armed criminal action.Id. at 276.The State introduced evidence of a gun advertisement found in the defendant's home.Id.The type of gun in the advertisement was similar to that used in the crime.Id.The Missouri Supreme Court found it was error to admit the advertisement because it was not legally relevant.Id. at 277.The court cited the proposition that weapons not used in the commission of the crime are not legally relevant.Id.(citingState v. Wynne,353 Mo. 276, 182 S.W.2d 294, 299-300(1944)).The Court reasoned that the jury would be inclined to draw improper inferences if the evidence were admitted.Id.

However, Anderson is materially dissimilar.In that case, there was absolutely no question that the advertisement found in the defendant's apartment was not used in the commission of a crime.In our case, there is an actual gun with links to both Miller and the crime.The question is how strong those links must be for the State to introduce the gun as the weapon used at the crime.

Identifications of weapons need not be unequivocal; however, a sufficient foundation must be laid that the gun introduced is the gun used in the crime so that a juror could find it to be that gun without resort to speculation."To warrant the admission in evidence of an instrument or weapon as the one with which the crime was committed, a prima facie showing of identity and connection with the crime is necessary and sufficient; clear, certain, and positive proof is not required."16 C.J. § 1225, at 619(1918).Less than absolute identifications of real evidence speak to the weight of the evidence, not admissibility."Weapons are admissible into evidence even though they are not directly connected with the defendant when they bear on the crime with which he is charged . . . positive proof or unqualified identification is generally not required."State v. Young,701 S.W.2d 490, 496(Mo. App. E.D.1985).²Furthermore, "[t]he fact that a considerable length of time elapsed after the crime before the weapon or instrument was found, or that in the meantime a third person may have had access thereto, goes to the probative force but not the admissibility of the evidence."16 C.J. § 1225, at 619.To admit the gun, the State is required to produce a prima facie showing that the gun found was the gun used; it is not required to prove that it was the same gun beyond all reasonable doubt.

In the current case, the State laid sufficient foundation to introduce the gun, tying the gun to Miller and the gun to the crime.One of Miller's accomplices stated the gun produced at trial was "identical" to that used in the robbery.Furthermore, the police found an expended cartridge from the gun found in the Buick in Miller's bedroom.A reasonable juror could have found the gun located in the Buick was Miller's.Miller controlled the car, its license plate...