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06/30/83 STATE MISSOURI v. JAMES KYLE GALARDO

June 30, 1983

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
JAMES KYLE GALARDO, DEFENDANT-APPELLANT.



From the Circuit Court of Jasper County; Criminal Appeal; Judge L. Thomas Elliston.

Before Maus, P.j., Prewitt, Hogan, JJ.

The opinion of the court was delivered by: Hogan

Upon trial to a jury, defendant James Kyle Galardo was convicted of second-degree burglary, as defined by § 569.170, RSMo 1978, and stealing, as defined by § 570.030.1, RSMo 1978. The trial court expressly found defendant to be a prior offender within the meaning of § 558.016.2, as amended, Laws of Mo. 1981, p. 636, and fixed defendant's punishment at imprisonment for 2 terms of 5 years, to be served concurrently.

Defendant filed a timely motion for new trial on the ground of newly-discovered evidence. After a hearing at which defendant was present, the trial court denied the motion. Defendant's sole point on appeal is that the trial court erred and abused its discretion in refusing to grant a new trial on the basis of the newly-discovered evidence.

Upon trial, the State produced evidence from which a jury composed of rational men and women could find that the defendant burglarized a Joplin meat store and stole 8 hams and 15 boxes of hamburger patties. He was assisted in the commission of both crimes by two juvenile aiders, Gene Huff and Sammy Reed, both 15 years of age. Huff was the State's principal fact witness on trial. Huff was asked on direct examination: "Q. Did anyone make any promises to you in return for your testimony today? A. What do you mean, ma'am? Q. Did anyone promise you any deal if you would testify today? A. No." Reed was not called and did not testify at the trial. However, both Huff and Reed were interviewed by defense counsel before the trial; Reed indicated he had signed a statement inculpating the defendant but said he was not going to testify.

After conviction, at the hearing on defendant's motion for new trial, Reed testified:

A. I told [the Joplin police officers] that me and a couple of my friends had done it because, you know, they kept telling me, 'Yeah, we got evidence,' and all this stuff, that they knew I done it and they knew who else was involved and stuff. And I kept . . . I told them a couple of different statements and then finally they told me, you know, they said, 'Well, you know, if you don't cooperate with us you could get certified.' And I said, 'All right.' So they showed me this one statement that the other kid that was with me, Gene Huff, and he signed a statement saying that me and my step-uncle James Galardo was involved with the burglary with him. So I went ahead and wrote a statement and signed it because they kept, you know, talking about me getting certified.

Q. And you told [the Joplin police officers] that Jim Galardo was involved in that burglary.

A. Yeah.

Q. Sammy, I talked to you, didn't I, before Mr. Galardo went on trial for that burglary?

A. Yeah.

Q. Did you ever tell me before that trial that he wasn't involved?

A. Yeah.

Q. You told me that he was not involved ...


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