Carver v. State

• Decision Date: 31 October 2013
• Docket Number: No. A13A1190.,A13A1190.
• Citation: 324 Ga.App. 422,750 S.E.2d 735
• Parties: CARVER v. The STATE.
• Court: Georgia Court of Appeals

324 Ga.App. 422

750 S.E.2d 735

CARVER

v.The STATE.

No. A13A1190.

Court of Appeals of Georgia.

Oct. 31, 2013.

Summer & Summer, Daniel A. Summer, for Appellant.

Stephanie D. Woodard, Sol.-Gen., Amber Redford Sowers, Asst. Sol.-Gen., for Appellee.

BOGGS, Judge.

After a jury trial, Rebecca Michelle Carver was convicted of pointing a firearm at another and reckless conduct. The trial court denied her amended motion for new trial, and she appeals. Her sole enumeration of error presents a question not previously considered in Georgia: whether the trial court erred in denying her motion in limine seeking to prohibit the victim from wearing his military uniform at trial. Because Carver has not demonstrated that the trial court abused its discretion in denying her motion, we affirm.

As the trial began, Carver's counsel made an oral motion in limine. Noting that the victim, on active duty with the Navy but on leave for the trial, was wearing his military uniform, counsel stated, "I am somewhat concerned about this individual appearing and testifying while in full uniform. I do think that might perhaps have a prejudicial effect and I wanted to explore that a little bit." Carver's counsel asserted that the victim was "in full uniform, dress uniform," but the victim responded, "This is not my dress uniform. This is my work uniform, United States Navy." After learning that counsel had found no legal authority for his position, the trial court asked that the victim absent himself during voir dire while counsel and the court researched the issue.

After voir dire concluded, the trial court took up the question of the motion in limine. The trial court noted that the victim was on active duty in the Navy as opposed to a reservist or retired military member. The court also observed that no Georgia law appeared to be directly on point and reviewed a number of decisions from other jurisdictions. Ultimately, the trial court declined to grant Carver's motion in limine, but offered to give an instruction to the jury "tailored to this specific fact," and repeated this offer during the charge conference. Carver declined the offered charge: "I would leave that alone." In its order denying Carver's motion for new trial, the trial court revisited the issue and cited the same decisions.

"A trial court's ruling on a motion in limine is reviewed for abuse of discretion. [Cit.]" Thompson v. State, 277 Ga.App. 323, 324(2), 626 S.E.2d 825 (2006). "[I]n reviewing the denial of a motion in limine, this Court must construe the evidence most favorably to the upholding of the trial court's findings and judgment, and we cannot reverse a trial court's ruling absent an abuse of discretion." (Citation, punctuation, and footnote omitted.) Brown v. State, 316 Ga.App. 137, 139(1), 728 S.E.2d 778 (2012). In addition,

because the trial court has broad discretion in regulating and controlling the business of the court, the reviewing court should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse, or that the court in some manner takes away the rights the parties have under the law. [Cit.]

Dixon v. State, 300 Ga.App. 183, 186 n. 10, 684 S.E.2d 679 (2009).

As we have noted, this is a question of first impression in Georgia.¹ Other states, however, have considered the question and concluded that a trial court does not abuse its discretion in allowing a member of the military to testify in uniform. In State v. Munoz, 340 N.J.Super. 204, 774 A.2d 515 (2001), the victim, a Marine on active duty, wore his uniform during trial. The Appellate Division affirmed the conviction, stating:

We have declared that if a party is a member of the armed services, a firefighter, or a priest, when appearing in court he or she should be entitled to dress in a manner ordinary to him or her. The rationale equally applies to a victim in a criminal prosecution. We conclude that the judge appropriately exercised his discretion in permitting [the victim] to wear his uniform.

(Citations omitted.) Id. at 220–221(III), 774 A.2d 515. And in State v. Mayse, 2006 WL 1132082, 2006 Tenn.Crim.App. LEXIS 353 (Tenn. Ct. Crim. App.2006), the trial court denied the defendant's motion in limine requesting that the victim, an active duty Marine, not be allowed to testify in uniform. As Carter argues here, Mayse contended that it was "not unreasonable that during a time when our nation is at war, that a jury would accord a witness in military uniform greater trust and credibility than a person on trial." Id. at *13(I). Noting decisions from New York and Indiana,² the Tennessee Court of Criminal Appeals held:

Likewise, we find no error in allowing the victim in this case to testify dressed in her military uniform. While it may be true that the jury looked favorably upon a witness who was serving her [country], we cannot automatically assume that the jury afforded her testimony more weight or credibility based solely on her appearance in military uniform. We find this little different from a police officer testifying in a police uniform. As argued by the State, whether a witness or a victim is a common laborer, an engineer, or a doctor, is a fact which may be considered by the jury but is clearly not determinative of the credibility of that person. Contrary to the Appellant's argument, we cannot equate this to a situation where the defendant is forced to appear in prison attire. This issue is without merit.

(Citations omitted.) Id. at *14–15(I). See also State v. Lemieux, 160 Conn. 519, 522, 280 A.2d 874 (1971) (no error in permitting victim to testify in uniform when victim on active duty and on leave for trial); People v. Lane, 398 Ill.App.3d 287, 296–301, 337 Ill.Dec. 452, 922 N.E.2d 575 (2010) (finding no prejudice to defendant when witnesses, including victim, allowed to wear military uniform); People v. McCoy, 281 Ill.App.3d 576, 586, 217 Ill.Dec. 136, 666 N.E.2d 805 (1996) (same); Galmore v. State, 467 N.E.2d 1173, 1176(III) (Ind.1984) (not abuse of discretion to allow victim to testify in uniform); People v. Lloyd, 141 A.D.2d 671, 529 N.Y.S.2d 562 (1988) (allowing robbery victim to testify in uniform did not deprive defendant of fair trial); People v. Aupperlee, 168 A.D.2d 561, 564 N.Y.S.2d 239 (1990) (same).

These decisions are not in any sense binding precedent, but we may look to them for persuasive reasoning. Smith v. Stewart, 291 Ga.App. 86, 92(1) n. 7, 660 S.E.2d 822 (2008). After a careful review of these decisions, we accept their reasoning and hold that, without more, a trial court does not abuse its discretion in allowing a witness on active duty in the military to testify in uniform, whether that individual is a witness or a victim-witness.³

The only decision cited by Carver in support of her position, State v. Marquez, 145 N.M. 31, 193 P.3d 578 (N.M.App.2008), rev'd on other grounds, 147 N.M. 386, 223 P.3d 931 (N.M.2009), is inapposite here. In Marquez, the New Mexico Court of Appeals affirmed the decision of the trial court concluding that a defendant's wearing of a National Guard uniform at trial "could unfairly prejudice the jury." Id. at 34–35, 193 P.3d 578. We do not consider here the much-litigated question of a defendant's courtroom attire. And Marquez itself notes that decisions affirming a trial court's decision to allow the wearing of a uniform, "being in the opposite procedural posture, are not persuasive." Id. at 35, 193 P.3d 578.

Here, Carver simply speculates that the victim's uniform "could have influenced the jury toward the State," but provides no specific evidence to support this speculation. As in Galmore, supra, "Defendant has presented only [her] own conclusions as to the effect of the victim's appearance at trial in his military uniform." 467 N.E.2d at 1176(III). See also Lane, supra, 398 Ill.App.3d at 299–300, 337 Ill.Dec. 452, 922 N.E.2d 575.

In addition, the evidence that the victim was a member of the military on active duty was known to the jurors through other relevant evidence properly admitted at trial. Carver stated as justification for pointing the pistol at the victim that she and...