U.S. v. Crockett, 94-2583
| Decision Date | 17 March 1995 |
| Docket Number | No. 94-2583,94-2583 |
| Citation | 49 F.3d 1357 |
| Parties | 41 Fed. R. Evid. Serv. 1027 UNITED STATES of America, Plaintiff-Appellee, v. James Ernest CROCKETT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Timothy McCarthy, II, Des Moines, IA, argued, for appellant.
Ed Kelly, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.
Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.
James Crockett appeals his conviction for being a felon in possession of a firearm and for possessing an illegally manufactured firearm in violation of 18 U.S.C. Sec. 922(g)(1) and 26 U.S.C. Sec. 5861(c). Crockett argues that the district court 1 erred in admitting photographs of the crime scene without proper foundation and in permitting the prosecutor during closing argument to project transparencies that argumentatively characterized trial testimony. Though we share the district court's concern about this use of a visual aid, we find no abuse of discretion and therefore affirm.
At 1:30 a.m. on June 26, 1993, Bushwackers nightclub in Des Moines closed for the night and its patrons emptied into the adjacent parking lot. A fistfight broke out, drawing a large crowd, and spilled into the street. Police Officer Debra Richardson approached and exited her squad car, but she remained behind the vehicle when greeted with a shower of rocks from the bystanders. As Lieutenant James Breining arrived to assist, the officers heard gunfire from the Bushwackers parking lot, and Breining ran to investigate. Both officers saw the shooter move through the parking lot and duck behind a group of parked cars. Breining approached and ordered him to come out with his hands empty and raised. Defendant Crockett emerged. Police arrested Crockett and found a .22-calibre rifle with its barrel illegally shortened a few feet away from the point of arrest. Crockett was charged with state and federal offenses. The state charges were dismissed, and these federal firearm charges proceeded to trial.
At trial, bystander Dean Lewis identified Crockett as the man Lewis saw firing the gun before he was slightly wounded by the gunfire, testimony consistent with Lewis's photo identification of Crockett shortly after the shooting. Officers Richardson and Breining testified that they never lost sight of the shooter from the time they first saw him firing the weapon in the parking lot until Crockett was arrested behind a parked car. The prosecution also presented the lineup photos displayed to Dean Lewis and photos of the crime scene. There was no fingerprint evidence, as the Des Moines police had not tested the firearm or spent shell casings found at the scene.
Four defense witnesses testified that Crockett was involved in the fistfight in front of the club and did not have a firearm. They admitted on cross examination that they lost track of Crockett when the shooting started, but Officer Richardson admitted on cross exam that the same person could not have been involved in both the fistfight and the shooting. Crockett testified in his own defense that he was guilty of fighting but not the shooting. A photograph taken after Crockett's arrest showed facial cuts and bruises consistent with a fistfight. There was conflicting evidence whether Crockett and the shooter wore similar clothing.
Though the trial took less than two days, the jury deliberated four days before convicting Crockett of both firearm offenses. After being sentenced to 235 months in prison, Crockett raises two issues on appeal.
Crockett first argues that the district court abused its discretion in admitting a composite photograph of the Bushwackers parking lot taken several months after the shooting. After the sponsoring witness testified that the daytime photograph generally depicted the parking lot on the night of the crime, the district court permitted defense counsel to conduct voir dire, and the witness admitted he did not know if the light fixtures shown in the photograph were working on the night of the shooting. Because lighting was relevant to the issue of identifying the nighttime shooter, Crockett objected that the photo lacked the authentication or identification required by Rule 901(a) of the Federal Rules of Evidence. However, the court admitted the photograph because it "can be of some value to the jurors in getting a visual concept of the parking lot as it existed on the date in question."
A trial court's determination of whether a photograph has been sufficiently authenticated "will not be overturned absent a clear abuse of discretion." United States v. Englebrecht, 917 F.2d 376, 378 (8th Cir.1990). Here, the photo was adequately authenticated as to the layout of the parking lot but not as to lighting. All witnesses testified that the parking lot was quite dark at the time of the crime. The prosecution's case turned on the police officers' testimony that they watched the shooter continuously from the point of the shooting to the point of his arrest, rather than on testimony that they could immediately identify the shooter as Crockett. Thus, the layout of the parking lot was more significant to the jury than the details of its lighting. Given defense counsel's effective voir dire on the lighting, we see no risk that the jury was misled or confused on this issue. The district court did not abuse its substantial discretion in admitting this photo.
Crockett's second issue, whether the prosecutor improperly used overhead transparencies during closing argument, is more complex and difficult. Before closing arguments, defense counsel noticed that the prosecutor, Edwin Kelly, intended to use overhead transparencies to summarize witness testimony and objected because "the jury is going to put too much influence, too much attention to the words that Mr. Kelly has put on paper versus what was said on the witness stand." The district court overruled the objection--explaining, "I let lawyers write on the blackboard a quick statement of what [they believe] the witness said"--but then instructed the jury:
Also, in the course of arguments I believe Mr. Kelly will be projecting on the screen brief summaries of what he recalls witnesses saying.... That's all it is, his recollection of what the testimony of a witness was. Again, if your recollection is different, you rely on your recollection of what the witness said in his or her testimony.
After Mr. Kelly's opening argument, during which defense counsel made no objection, the district court immediately called counsel into chambers and stated:
I have got a little concern with the prosecutor's use of these transparencies. My understanding was that these were just brief summaries of the testimony that the witnesses gave according to the prosecutor's best recollection. By and large, that, they are, but there is one thing that bothered me, and that is that unlike the summaries of the three Government witnesses, the summaries of the defendant's witnesses contain some characterizations.
* * * * * *
I'm not pleased with the editorial characterizations that were used. In the future, if you use this sort of thing, I want it to be a straightforward, brief summary of what they said, and not include an editorial or argumentative characterization such as "grudgingly," and "claimed," and so forth.... I don't want you to use these on rebuttal.
Defense counsel promptly renewed his objection and moved for a mistrial. The district court responded:
THE COURT: I'm not satisfied that the matter is sufficiently prejudicial to require a mistrial, and the motion for mistrial is denied.
MR. McCARTHY [defense counsel]: Then may I suggest or request the Court give a further cautionary instruction on those?
On appeal, Crockett argues that the district court abused its discretion by condoning prejudicial prosecutorial misconduct, the use of improper summary transparencies during closing argument.
Crockett's argument fails because there was no prosecutorial misconduct. The use of summary charts, diagrams, and other visual aids is generally permissible in the sound discretion of the trial court. See United States v. Caswell, 825 F.2d 1228, 1235 (8th Cir.1987). Visual aids that summarize other evidence are generally permissible pedagogic devices, especially when used to organize complex testimony or transactions for the jury. See, e.g., United States v. Baker, 10 F.3d 1374, 1411-12 (9th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994); United States v. Paulino, 935 F.2d 739, 753 (6th Cir.), cert. denied, 502 U.S. 914, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991). Such summaries need not be admitted into evidence, and therefore can be created by counsel for or during closing argument.
To be sure, there are limits to the use of such devices. Some limits are the function of the trial judge's views...
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