People v. Anderson

• Decision Date: 04 April 2017
• Citation: 52 N.Y.S.3d 256,29 N.Y.3d 69,74 N.E.3d 639
• Parties: The PEOPLE of the State of New York, Respondent, v. Trevor ANDERSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

29 N.Y.3d 69

74 N.E.3d 639

52 N.Y.S.3d 256

The PEOPLE of the State of New York, Respondent,

v.Trevor ANDERSON, Appellant.

Court of Appeals of New York.

April 4, 2017.

Lynn W.L. Fahey, Appellate Advocates, New York City (A. Alexander Donn of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn (Terrence F. Heller and Leonard Joblove of counsel), for respondent.

OPINION OF THE COURT

ABDUS–SALAAM, J.

Defendant Trevor Anderson was convicted, upon a jury verdict, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1 ] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ). Defendant argues that he was deprived of a fair trial by the prosecutor's use of PowerPoint slides during summation, and that defense counsel was ineffective for failing to object to the use of the slides. Defense counsel, who objected to one of the PowerPoint slides, was not ineffective for failing to challenge the others, as the vast majority were not objectionable.

I.

According to the People's proof at trial, on March 14, 2010, on a Brooklyn street, defendant approached Erick Brown–Gordon, who was dating defendant's ex-girlfriend Diana Perez, and shot him twice in the abdomen. When Brown–Gordon turned around and tried to flee, defendant shot him twice more, in the back. Defense counsel argued at trial that Perez and Brown–Gordon were not credible witnesses and had falsely identified defendant.

The Appellate Division rejected defendant's challenges to his conviction and affirmed the judgment ( 130 A.D.3d 1055, 15 N.Y.S.3d 103 [2d Dept. 2015] ). A Judge of this Court granted defendant leave to appeal (26 N.Y.3d 1142, 32 N.Y.S.3d 56, 51 N.E.3d 567 [2016] ). We now affirm.

II.

In People v. Ashwal , 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564 (1976), this Court explained that it is "fundamental" that counsel must stay within "the four corners of the evidence" during summation and that the prosecutor "may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferable from the evidence" (id. at 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [citations omitted]; see also CJI2d [N.Y.] Pre–Summation Instructions ["(s)ummations provide each lawyer an opportunity to review the evidence and submit for (the jury's) consideration the facts, inferences, and conclusions that they contend may properly be drawn from the evidence"] ). The PowerPoint slides used by the People in this case were consistent with these principles. As we observed in People v. Santiago , 22 N.Y.3d 740, 751, 986 N.Y.S.2d 375, 9 N.E.3d 870 (2014), PowerPoint "slides depicting an already admitted photograph, with captions accurately tracking prior ... testimony, might reasonably be regarded as relevant and fair ... commentary on the ... evidence, and not simply an appeal to the jury's emotions."

At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel's argument, or in the court's admonitions. We reject defendant's position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence. The court properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence.

In this case, as was appropriate, the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations.

Given the parameters of the permissible use of PowerPoint slides in summation, counsel was not ineffective for failing to object. For example, some of the slides were pictures of exhibits with captions or numbers inserted to highlight the relevant portion of those exhibits. Two slides showed a portion of the victim's medical records which included a diagram depicting the location of four wounds

. One slide showed the enlarged diagram, with superimposed text reading "Two Gun Shot Wounds to front" and "Two Gun Shot Wounds to back." That text accurately reflected the information in the exhibit. Another slide showed the same diagram, with numerals on each of the respective markings representing the four wounds

. Defendant asserts that the People improperly altered the medical records to reflect their theory that the victim was shot four times, where the records purportedly show that he was shot twice. However, the medical records are not clear as to whether Brown–Gordon was shot twice and sustained four wounds (i.e., one entrance and one exit wound per shot), or was shot three or four times. The text inserted by the People referred to wounds, not shots, and the prosecutor argued, consistent with Brown–Gordon's testimony, that he had been shot four times. These slides, and the oral argument by the prosecutor, were fair comment on the evidence and the reasonable inferences to be drawn from that evidence.

Defendant also argues that his counsel was ineffective for failing to object to slides that showed photographs, received into evidence, of the street on which the shooting had occurred. On two of those slides, the prosecutor had superimposed yellow circles around street lamps which witnesses had testified had sufficiently illuminated the street so that they were able to see defendant. On another slide, there was a superimposed circle around the location where a testifying police officer said he had found three shell casings. These added markings did not misrepresent the evidence.¹

Additionally, we reject defendant's argument that defense counsel was ineffective for failing to object to the prosecutor's use of a slide that showed defendant's arrest photograph, which had been received in evidence, surrounded by a superimposed circle, with boxes containing text summarizing the People's theory of the case.² Defendant argues that this slide improperly altered the trial evidence and that the text boxes surrounded defendant's face as if he were a target. In our view, the added text accurately tracked the witnesses' testimony and the fair inferences to be drawn from the evidence, and the placement of the text boxes around defendant's face was "not simply an appeal to the jury's emotions" (Santiago, 22 N.Y.3d at 751, 986 N.Y.S.2d 375, 9 N.E.3d 870 ).

Nonetheless, even accepting defendant's position that this slide was objectionable, the display of this slide alone did not deprive defendant of a fair trial. Instead, as in Santiago, "the objection to the PowerPoint presentation that defendant now raises is not so ‘clear-cut’ or ‘dispositive’ an argument that its omission amounted to ineffective assistance of counsel" (22 N.Y.3d at 751, 986 N.Y.S.2d 375, 9 N.E.3d 870 ).

Finally, to the extent that the court made a Sandoval ruling, defendant's claim that the ruling was in error is unpreserved (see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ).

Accordingly, the order of the Appellate Division should be affirmed.

RIVERA, J. (dissenting).

The prosecutor's use of digitally edited reproductions of exhibits to convey inferences and misinformation, as well as to project defendant's image as the "face of death," exceeded the bounds of proper summation. A prosecutor may not use altered copies of exhibits to suggest that the evidence unequivocally establishes disputed facts or to distract the jury by playing to emotion. That, however, is what happened here.

The PowerPoint presentation employed by the prosecutor during summation included a modified version of defendant's arrest photograph, with the picture of his head at the center of a symbolic target. This target was surrounded by eight boxes containing both facts of the case and the prosecutor's inferences and mischaracterizations of the evidence, all pointing directly at defendant's face. The reimagining of defendant's likeness—through a powerful visual medium—distracted the jury from the unaltered trial evidence and the relevant facts, and was accompanied by the prosecutor's verbal statements that appealed to passion, not reason.

The error was compounded by the prosecutor's showcase of edited medical exhibits in two additional slides. The slides of the victim's hospital records contained superimposed words and numbers which, in the context of the presentation, misled the jury as to what the actual exhibits showed in order to suggest that certain disputed facts were conclusively established at trial, and to thereby bolster witness testimony. These alterations were the equivalent of using unadmitted evidence.

The strategic use of technology to display visual images enhanced the prejudicial impact of the edited reproductions of these exhibits, and when combined with defense counsel's failure to object to the offensive PowerPoint slides, denied defendant a fair trial. Even in the face of earnest efforts to make the distinction between admitted evidence and argument clear, overlaying evidence with embedded inferences presents issues that cannot be overcome through jury instruction. I would reverse and remit for a new trial.

I.

During summation, the prosecutor may marshal the evidence so as...