Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri reversed and remanded the second-degree murder conviction of Anthony Brown. At trial Brown had asserted self-defense, and during closing arguments the trial court had permitted the State to use a .38 revolver as demonstrative evidence to rebut Brown’s claim of self-defense. The conviction was reversed because there was no testimony that the .38 was similar to the gun allegedly carried by the victim.
I. Facts and Holding
On June 9, 2007 Anthony Brown attended a children’s birthday party at the home of his grandmother Evelyn Dukes.[2] Robert Anderson, the victim, was also at the party.[3] Brown and Anderson got into an argument.[4] Brown knew that Anderson typically carried a gun, and as other guests continued to argue, Brown went to retrieve a gun for himself.[5] Brown returned, showing the gun as he approached, while continuing to argue with Anderson.[6] Brown fired several shots, fatally wounding Anderson.[7] Brown was subsequently charged with first-degree murder and armed criminal action.[8]
At trial, Brown testified that he shot Anderson in self-defense because he thought that his life was in danger.[9] Brown testified that he believed Anderson was carrying a gun in the left pocket of his sweatpants, and that he fired when Anderson reached for his gun.[10] Other witnesses, family members of Brown, also testified that Anderson was carrying a gun in his left pocket and that prior to the shooting he had put his hand in his left pocket.[11] No gun was found in the victim's possession at the scene, and none was ever produced by anyone.[12]
During the trial, Brown presented evidence that Anderson was known to carry a gun and that, at the time, Anderson was upset with Brown and had threatened him multiple times.[13] The day following the shooting, Brown told his mother that he acted in self-defense because he was afraid for his life.[14]
Before closing arguments, the State informed the court that it intended to use a .38 revolver to demonstrate that the gun the victim was allegedly carrying would not have fit into his left sweatpants pocket.[15] The court overruled Brown’s objection that the revolver had not been admitted into evidence and that there was no evidence the gun was similar to Anderson’s.[16]
During closing arguments the state used the revolver as a demonstrative exhibit, and during deliberations the jury asked to see the revolver the State had used at that time.[17] The court denied the jury’s request as the revolver had not been received into evidence and were instructed to utilize their recollection of the evidence.[18]
Brown was convicted of murder in the second degree and armed criminal action, and was sentenced to thirty years in prison for murder and three years for armed criminal action, to be served consecutively.[19] On appeal the Eastern District Court of Appeals affirmed the trial court findings.[20]
On his appeal to the Supreme Court of Missouri Brown argued that the trial court abused its discretion in overruling his objection to the State’s use of a revolver during closing arguments.[21] The Court reversed and remanded because there was no evidence that the revolver used as an exhibit in closing arguments was similar to Anderson’s gun.[22] The State had not shown that the size and shape of Anderson’s gun was similar to the one they presented in closing argument.[23] The State had only shown that the victim’s gun was “shiny looking” and had a light or pearl handle.[24] Since there was no evidence other than vague descriptions, there was no way to determine whether the .38 revolver used by the State fairly represented Anderson’s gun.[25] Because the guns were not shown to be substantially similar, the State’s argument during closing that Anderson could not have drawn a gun from his pants was necessarily speculative and carried a possibility of misleading the jury.[26] The Court further stated that since the revolver would not have been admissible at trial the State should not have been able to avoid evidentiary constraints by first showing the revolver in closing argument to.[27]
The Court determined that allowing the presentation of the gun during closing was not harmless error, and thus remanded the case.[28] The Court reasoned that the error was not harmless because the jury’s decision was influenced by the improper demonstration, as shown by their request to see the gun.[29]
In his dissenting opinion, Judge Fischer argued that the majority began with the erroneous premise that the State sought to use the revolver in its closing arguments to bypass normal evidentiary procedures.[30] Judge Fischer argued that this premise was wrong because the jury was never under the impression that the revolver had been admitted into evidence.[31] Judge Fischer highlights the fact that when the jury asked to see the gun used, they specifically asked “[c]an the sheriff please bring in the gun used as a sample?”[32] As was stated previously, the trial court responded by specifically instructing the jury that “[t]he gun was not received into evidence.”[33] Accordingly, Judge Fischer determined that since the jury knew the gun was only “used as a sample” and that it was reiterated that the gun had not been admitted into evidence, the jury was well aware that the gun had not been admitted.[34]
Judge Fischer noted that it is well-settled law that “[t]he jury is presumed to have followed the trial court’s instructions.”[35] Additionally, the demonstrative use of the .38 revolver was not the only evidence the state produced to disprove Brown’s self-defense theory.[36] Accordingly, Judge Fischer was critical of the majority’s speculation that the defendant was prejudiced by the jury’s attaching undue significance to the .38 revolver.[37]
Due to the fact that the jury knew the revolver had not been admitted into evidence, the presumption that juries follow instruction, and the fact that the trial court was in a better position to determine the probative value versus the prejudicial effect of a demonstrative exhibit, Judge Fischer determined it was not an abuse of discretion by the trial court to allow the demonstrative exhibit.[38]
II. Legal Background
When counsel objects to closing argument, the appellate court “will reverse the trial court's decision with regard to closing argument only upon a showing of abuse of discretion by the trial court.”[39]
The trial court has discretion over the admission of demonstrative evidence.[40] An object may be admitted for the limited purpose of demonstration even if it is not connected with the defendant or offense charged.[41] In general, demonstrative evidence is admissible if it is relevant, fairly represents the conditions that it is offered to show, and does not mislead the trier of fact.[42] Typically, demonstrative evidence that tends to establish any fact in issue or shed light on a controversy that may aid the jury in any way in arriving at a verdict is admissible.[43] The demonstrative object must also not be “inflammatory, deceptive or misleading.”[44] Even if only for demonstrative purposes, the object that is seeking to be utilized must be legally and logically relevant.[45] Legal relevance refers to the evaluation of probative value relative to the risk of “unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.”[46] Logical relevance is the ability of the evidence "to make the existence of a material fact more or less probable."[47]
In State v. Wynne, the defendant Grace Wynne was convicted of murder, and the trial court admitted a pistol for demonstrative purposes.[48] The pistol was used to illustrate how far it stuck out of an individual’s pocket.[49] The pistol in question in Wynne was not connected to the defendant, and there was no testimony that the individual carried a pistol similar to the one used for demonstrative purposes.[50] The Supreme Court of Missouri reversed the conviction of Wynne because the demonstration was improper and prejudicial to the defendant.[51]
In State v. Grant, a manager of a gas station, Larry Dudney, was allegedly robbed at gunpoint by the defendant.[52] While no weapon was admitted into evidence the state produced a pistol for demonstrative purposes.[53] In Grant the pistol was used to demonstrate how the defendant allegedly held a pistol to Dudney’s head.[54] Despite the defendant’s objections that the pistol had no connection to the one purportedly used, and the lack of evidence that it was similar to one allegedly used, the trial court allowed the demonstrative pistol to be held to the head of the prosecutor by Dudney as an illustration of the robbery.[55] The Missouri Court of Appeals, Southern District, reversed the judgment because the use of the pistol was improper and prejudicial to the defendant.[56]
In State v. Silvey, the trial court let the state use a butterfly knife for demonstrative purposes.[57] While no butterfly knife was admitted into evidence, the defendant allegedly used one in a series of child molestation incidents.[58] The Supreme Court of Missouri affirmed the conviction and allowed the use of the butterfly knife for two reasons.[59] The first reason was the unique nature of a butterfly knife.[60] The Court noted that a butterfly knife “is a unique weapon that nearly defies an accurate oral or written description of its design and how it is opened and closed.”[61] The second reason was that three witnesses testified that the defendant owned a butterfly knife similar to the one used in the demonstration.[62]
Judge Fischer’s dissent also emphasized the presumption that the jury followed the instructions they were given. This presumption was established by Tisius v. State, which held that “[t]he jury is presumed to have followed the trial court’s instructions” and that “speculative allegations do not overcome the presumption that the jury followed the instructions.”[63]
III. Comment
In State v. Brown the Supreme Court of Missouri reiterated several important aspects of the use of demonstrative evidence. The Court emphasized that the item used for demonstrative purposes must fairly represent the conditions it is offered to show.[64] In rebutting Brown’s self-defense claim that the victim was carrying a gun, the State needed a more substantial connection between the gun allegedly used by the victim and the one used for demonstrative purposes, other than they were both “shiny” and had a light or pearl handle.[65]
The Court also discussed the relationship between whether or not the gun fairly represented the conditions it was offered to show and whether it would in fact mislead the jury.[66] Since little information is known about the victim’s alleged gun, particularly regarding shape and size, the demonstration was necessarily speculative and carried with it a “distinct possibility” that it would mislead the jury.[67] Due to the .38 revolver not being a fair representation, its prejudicial effect outweighed any probative value.
A troubling consequence of this case is highlighted by Judge Fischer’s dissent. In his dissent, Judge Fischer argued the presumption that juries follow instructions was not present in the majority’s opinion.[68] The trial court was in the best position to make a determination as to the revolver’s use as a demonstrative. While violating the presumption that juries follow instructions, the majority just speculated that the jury placed undue significance upon the revolver and overruled the trial court’s discretion on demonstratives. While the majority did not explicitly overrule precedent, this ruling may open the door for appellate courts to more frequently cast doubt on the extent to which juries followed instructions.
This case signals to parties and judges that they do not have free reign on demonstrative evidence and that higher courts are willing to overturn the trial court's discretion if it was abused. The abuse of discretion standard is a high bar to overcome, but the Court was right in holding that when the demonstrative evidence has so little connection to what it purports to be, the judgment will and should be questioned. The inherent risk of misleading jurors with demonstrative evidence so unrelated to any object in the case is high, and that risk should signal caution by practitioners and judges when presenting and admitting demonstrative evidence in the future.
-Nathan Atkinson
[1] No. 90853 (Mo. May 17, 2011). The West reporter citation is State v. Brown, 337 S.W.3d 12 (Mo. 2011) (en banc).
[2] Resp. Sub Brief, page 6; Brown, 2011 WL 1885183, at *1.
[3] Id.
[4] Brown, 337 S.W.3d at 14.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 17 (Fischer, J., dissenting).
[13] Id. at 4.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at 17 (Fischer, J., dissenting).
[20] State v. Brown, No. ED92794, 2010 WL 933339, at *1 (Mo. App. E.D. 2010).
[21] Brown, 337 S.W.3d at 14.
[22] Id. at 16.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 18 (Fischer, J., dissenting).
[31] Id.
[32] Id.
[33] Id.
[34] Id. at 18-20.
[35] Id. at 19 (citing Tisius v. State, 183 S.W.3d 207, 217 (Mo. 2006) (en banc)).
[36] Id.
[37] Id. at 19-20.
[38] Id. at 18-20.
[39] State v. Shurn, 866 S.W.2d 447, 460 (Mo. 1993) (en banc).
[40] Brown, 337 S.W.3d at 17. (Fischer, J., dissenting).
[41] State v. Silvey, 894 S.W.2d 662, 667-78 (Mo. 1995) (en banc).
[42] State v. Rehberg, 919 S.W.2d 543, 551 (Mo. App. W.D. 1995)
[43] State v. Strughold, 973 S.W.2d 876, 886 (Mo. App. E.D. 1998).
[44] State v. Freeman, 269 S.W.3d 422, 427 (Mo. 2008) (en banc).
[45] Id.
[46] Id.
[47] Id.
[48] 182 S.W.2d 294, 294, 299 (Mo. 1944)
[49] Id.
[50] Id
[51] Id. at 300.
[52] State v. Grant, 810 S.W.2d 591, 592 (Mo. App. S.D. 1991)
[53] Id.
[54] Id.
[55] Id.
[56] Id.
[57] State v. Silvey, 894 S.W.2d 662, 665 (Mo. 1995) (en banc).
[58] Id. at 665-66.
[59] Id. at 665-66, 673.
[60] Id. at 665-66.
[61] Id. at 665.
[62] Id. at 666-67.
[63] Tisius v. State, 183 S.W.3d 207, 216-17 (Mo. 2006) (en banc).
[64] Brown, 337 S.W. at 15 (Mo. 2011) (en banc).
[65] Id. at 16.
[66] Id. at 15.
[67] Id. at 16.
[68] Id. at 20 (Fischer, J., dissenting).
