Carver v. State

750 S.E.2d 735, 324 Ga. App. 422, 2013 Fulton County D. Rep. 3390, 2013 WL 5832635, 2013 Ga. App. LEXIS 860
CourtCourt of Appeals of Georgia
DecidedOctober 31, 2013
DocketA13A1190
StatusPublished
Cited by4 cases

This text of 750 S.E.2d 735 (Carver v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carver v. State, 750 S.E.2d 735, 324 Ga. App. 422, 2013 Fulton County D. Rep. 3390, 2013 WL 5832635, 2013 Ga. App. LEXIS 860 (Ga. Ct. App. 2013).

Opinion

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 [423]*423jurisdictions. 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.

“Atrial 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 SE2d 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 SE2d 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 SE2d 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 A2d 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 [424]*424criminal 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). And in State v. Mayse, 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 A2d 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 (922 NE2d 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 (666 NE2d 805) (1996) (same); Galmore v. State, 467 NE2d 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 NYS2d 562) (1988) (allowing robbery victim to testify in uniform did not deprive [425]*425defendant of fair trial); People v. Aupperlee, 168 A.D.2d 561 (564 NYS2d 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 SE2d 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 P3d 578) (N.M. App. 2008), rev’d on other grounds, 147 N.M. 386 (223 P3d 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. 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.

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750 S.E.2d 735, 324 Ga. App. 422, 2013 Fulton County D. Rep. 3390, 2013 WL 5832635, 2013 Ga. App. LEXIS 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carver-v-state-gactapp-2013.