Carson v. State, 87-201
| Decision Date | 25 March 1988 |
| Docket Number | No. 87-201,87-201 |
| Citation | 751 P.2d 1315 |
| Parties | Kelly CARSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Julie D. Naylor, Appellate Counsel, Public Defender Program, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Paul S. Rehurek, Asst. Atty. Gen., for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
Kelly Carson, convicted of auto burglary, appeals from the trial court's closing-argument rejection of his use of a nonintroduced prop as demonstrative evidence. We affirm the discretionary decision of the trial court in denial of the demonstration which was to be a visibility test of the cord on a radar detector. 1 In essence, this is a sufficiency-of-the-evidence jury verdict with denied strategy of defense counsel directly presented as the appeal issue.
On November 21, 1986, Ms. Cindy Pater parked her Trans Am vehicle near the Wonder Bar in Casper, and someone thereafter, during the course of the evening, broke the passenger-side window of the vehicle and "offed and awayed" with a Cobra radar detector. At issue was the perpetrator's identity, with the evidence in conflict by eyewitness identification at the scene and countervailing alibi defense of the defendant's attendance at a north Casper trailer court birthday party for himself. 2 The eyewitness Hartman, was an acquaintance of Carson and testified that while he was walking from an adjacent parking garage on an errand for the Wonder Bar, he heard glass break and saw an individual, whom he identified as Carson by personal acquaintanceship, lean into the car and remove a black box with attached cord. The two individuals were established by trial testimony to be anything other than friends.
The theory of defense, in addition to alibi, was vested in impeachment of Hartman. Carson did not testify.
As appellant sets the stage:
The problem advanced for us in our review of this claimed improvidently exercised discretion of the trial court, is that the prop had not been identified or introduced prior to final argument and the record affords no basis for either the trial court or this tribunal to establish similarity. The lost Cobra was not available in evidence, and whether similar or dissimilar to the device presented by counsel in final argument is not established. We cannot accept as either a principle of law or established fact that if you have seen or cannot see one you have seen them all.
This court has clearly established that control of final argument is vested in sound discretion of the trial court, and, in this case, certainly nothing defines abused discretion. Mayer v. State, Wyo., 618 P.2d 127 (1980); Oldham v. State, Wyo., 534 P.2d 107 (1975); Boyd v. State, Wyo., 528 P.2d 287 (1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); State v. Ahlo, 2 Hawaii App. 462, 634 P.2d 421 (1981), cert. denied 456 U.S. 981, 102 S.Ct. 2252, 72 L.Ed.2d 858 (1982). See 1A, Criminal Defense Techniques, § 33.02, p. 33-5 (1987), defining the broad discretion involved.
Generally, demonstrative evidence of a tangible nature, such as the radar detector in this case, cannot be used in final argument unless earlier at least identified during the trial. United States v. Campa, 679 F.2d 1006 (1st Cir.1982); Cummings v. State, 239 Ark. 1027, 396 S.W.2d 298 (1965); State v. Mayfield, Mo., 506 S.W.2d 363 (1974); People v. Riley, 20 A.D.2d 599, 245 N.Y.S.2d 439 (1963).
Finding that discretion was not abused in the denial of the demonstrative display of an unidentified fuzz-buster, we affirm the conviction.
1 This case is conjunctive to Carson v. State, Wyo., 751 P.2d 1317 (1988) as this conviction precipitated the probation revocation in the other appeal.
2 Among other testimony, it was...
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Carson v. State
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