Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Dec 11 2013, 9:57 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER Appellate Public Defender Attorney General of Indiana Crown Point, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DOUGLAS A. SMITH, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1304-CR-154 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No. 45G01-1201-MR-1
December 11, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Douglas A. Smith appeals his conviction for murder. Smith raises two issues,
which we revise and restate as:
I. Whether the trial court erred in admitting certain evidence of a prior altercation; and
II. Whether the State committed prosecutorial misconduct requiring reversal.
We affirm.
FACTS
In January 2012, Smith lived with Jacqueline Williams, his girlfriend of
approximately two years, in Highland, Indiana. Williams was employed as a technician
in the imaging department at a hospital, and Smith was unemployed.
On the night of January 13, 2012, Williams and her friends went to a bar in
Griffith, Indiana, where Smith met them. At some point Smith went home to shower, and
later Williams and a friend joined him at a bar in Highland. When Williams was talking
to some other women, Smith grabbed her by her upper arm, pulled her upward towards
him, and said “[w]hat the f--- do you think you’re doing” or “shut the f--- up.” Transcript
at 48, 383. Williams told Smith to “leave her the f--- alone.” Id. at 388. The two
continued to argue with each other. At some point prior to 2:15 a.m., Smith and Williams
exited the bar and drove to their residence. Smith and Williams were still angry with
each other when they left the bar.
After they arrived home, they argued about their relationship. Williams was
convinced that Smith did not care about the relationship and was not committed enough,
and Smith told her that he loved her and was willing to do anything to commit to the
relationship. They took off each other’s clothes and began to have sex. Smith kept a gun 2 in one of the bedrooms in the residence, and at some point before 3:00 a.m., he shot
Williams in the head causing her death.
Smith called 911 from a bar in Highland at approximately 3:00 a.m., gave the
dispatcher a street address, and then hung up. The 911 dispatcher called the bar and
asked if there was an emergency. The employee who answered went outside to the
parking lot but Smith had already left and then drove to Tennessee and later to Florida.
At some point, he threw the gun in a body of water.
Williams did not show up for work on January 15, 2012, and her colleagues
became concerned and went to her house. They noticed that Williams’s car was at her
house and that every light in the house was on, but there was no answer when they
knocked on the door. They made a report to police, and the police went to the residence
and found the door unlocked.
Police discovered Williams’s body in the bedroom on the floor at the foot of the
bed. She was positioned on her back and had been shot in her left eye. The bullet had
exited the back of her skull and traveled through the floor and into the room below. Her
arms were at her side, she was dressed only in a black robe which was open and revealed
her naked body from several inches above her waist to her feet, and her knees were bent
up and spread apart. In the room beneath the bedroom where Williams’s body was
found, police discovered a bullet hole in the ceiling, the spent bullet, and blood spatter on
the floor directly below the hole in the ceiling.
On the evening of January 15, 2012, Smith called his mother and left a message.
On the night of January 16, 2012, law enforcement in Florida identified Smith’s vehicle,
initiated a stop, and placed Smith under arrest. 3 PROCEDURAL HISTORY
On January 17, 2012, the State charged Smith with murder. Smith filed a motion
in limine arguing that any statements made by Joshua Casner, one of the State’s
witnesses, or any others regarding prior physical or verbal altercations between Smith
and Williams should be excluded because they constituted impermissible character
evidence. In its response, the State indicated in part that Casner would describe the
relationship between Smith and Williams as volatile in nature due to personally observing
physical and verbal abuse and that Casner specifically witnessed an incident at the home
of Smith and Williams in the summer of 2011 when Smith and Williams were intoxicated
and were in a heated argument which turned physical. The State also filed a notice of
intent to elicit testimony pursuant to Ind. Evidence Rule 404(b) pertaining to the nature of
the relationship between Smith and Williams as proof of motive, intent, preparation, plan
and absence of mistake or accident. On February 8, 2013, prior to the start of trial, Smith
filed a motion to withdraw his defense of self-defense.
Smith’s jury trial commenced on February 11, 2013. During opening arguments,
he argued that he and Williams had a history of drinking, that they were intoxicated on
the night Williams was shot, that the loaded gun was a dangerous thing, that a person
handling a gun who is inexperienced, intoxicated, and untrained can lead to tragic and
horrible accidents, and that this was exactly what happened in this case. During its case
in chief, the State called Josh Casner as a witness. Casner testified that he had known
Smith since high school and Williams for five years. Smith’s defense counsel asked to
approach the bench, indicated that the State appeared to be ready to question Casner
regarding an incident that occurred at a Labor Day cookout, and noted that the trial court 4 had previously ruled that the State could elicit testimony regarding the incident. Defense
counsel noted that, since that time, Smith had withdrawn his defense of self-defense and
objected to any testimony regarding the incident, arguing that the relationship or motive
of the parties is no longer an issue. The State argued that the testimony also tended to
show a lack of mistake or accident. The court then stated that there was no question that
the incident was relevant under Evidence Rule 404(b), that whether the evidence should
be admitted was a close call, and that under Evidence Rule 403 on balance the evidence
was too prejudicial.
After presenting the testimony of another witness, the State asked to approach the
bench and again requested permission to question Casner regarding the events which took
place on Labor Day of 2011. The State argued that to show motive, case law allows the
State to inquire about prior domestic violence in a relationship between a defendant and
the victim. The State points out that Smith admitted that he had shot Williams but
claimed it was not his intent or motive to do so, and that the probative value of evidence
of the incident outweighed the danger of prejudice. The State also noted that the incident
occurred just four months before Williams’s death. Following a brief recess, the court
asked the State to explain the testimony it wished to elicit from Casner, and the State did
so. The court noted that it had an opportunity during the recess to review case law, that
there was “a drum beat repetition of the defense team of accident and certainly no intent,”
and that, although it had previously found that Casner’s testimony should not be
admitted, it now believed that the evidence should be admitted. Id. at 233. The court
found that, although the evidence was prejudicial, “given the defense raised and the []
drumbeat repetition of the accident issue,” it believed that the probative value outweighed 5 any prejudice, and allowed the State to recall Casner for the limited purpose of
questioning him about the late summer 2011 incident. Id. at 234. Smith objected to the
testimony and requested a limiting instruction. The trial court informed the jury that
prior wrongs and acts are typically not admissible to prove that a person acted in
conformity therewith or to show the person’s character but that such evidence was
admissible in limited circumstances. The court noted that Casner’s testimony regarding
the incident was being admitted for the purpose of showing proof of motive, intent, or the
absence of mistake or accident.
The State then elicited testimony from Casner that he attended a barbecue at the
home of Smith and Williams on Labor Day of 2011 together with five or six other
people, that Smith and Williams had been drinking “[a] lot” of alcohol that day, and that
everyone was intoxicated. Id. at 238. Casner testified that, while he and another man
were in the backyard and Smith and Williams were inside where he could see them
through a window, he heard Smith and Williams “cussing and screaming at each other,”
that he observed Williams “come up [behind Smith and] grab him by the cheek,” and that
then there was “a whole bunch of screaming after that.” Id. at 240. Casner further
testified that “then it got louder” and he observed “a fist up in the air come down” and
that he then told the other man “we got to go inside.” Id. Casner stated that he opened
the door, went inside, and observed Smith “on top of [Williams] with both knees on her
sides, straddling her,” that Smith said “calm down, you crazy b----,” and that Williams
said “get the f--- off me.” Id. at 240-241. Casner said that he observed Smith’s fist “go
up” twice. Id. at 241. Casner also testified that he and the other man grabbed Smith’s
arms and pulled him off of Williams, that Smith then went upstairs, and that Williams 6 crawled underneath the kitchen table and was sobbing and in a fetal position rocking back
and forth.
Later during the trial, Smith testified that he kept a gun he had purchased in
December 2010 in the bedroom. He testified that he and Williams had argued on the
morning of January 14, 2012 at the bar, that he had “told her to shut the f--- up,” that she
had told him “to leave her the f--- alone,” and that he and Williams returned home in his
vehicle at approximately 2:15 a.m. Id. at 388. Smith testified that, upon entering the
house, he and Williams began to argue and that Williams was “convinced that [he did
not] care enough about the relationship” and was not “committed enough.” Id. at 390.
He testified that he and Williams then began to take each other’s clothes off but that
shortly after that Williams pushed him off of her and started “bringing the argument back
up,” and that both he and Williams were “very drunk.” Id. at 391-392. He stated that
Williams followed him into a bedroom, then downstairs to the living room, and then back
upstairs to the bedroom, all the while arguing with him. Smith testified that, after
returning to the bedroom, he was on the bed and Williams walked in, grabbed the
handgun from next to the television, and started to raise it toward Smith.
Smith said that he approached Williams, who was holding the gun with her right
hand, that he tried to grab the gun from her, that she backed up, and that he grabbed the
gun with his left hand, placing his hand over the cylinder or above the handle of the gun.
Smith further testified that he then turned the gun so it was not facing him or Williams,
that he and Williams started “pulling the gun back and forth,” that Williams “yank[ed]
hard” and began to fall to the ground, and that he started “to fall with her.” Id. at 409.
He testified: “I’m falling and the gun goes off,” and that he did not intend to kill her. Id. 7 at 410. During cross-examination, Smith again testified that Williams started to fall and
that he started to fall with her. He stated: “I end up almost on top of her and that’s when
the gun must have gotten turned towards her and the gun goes off.” Id. at 432. He said
that he then shook Williams but she did not respond. Smith also testified regarding the
Labor Day 2011incident, stating that Williams grabbed him by the face, that he restrained
her because she was extremely angry and was hitting him, and that he did not strike her.
The State also presented photographic evidence showing the rooms of the
residence where Williams was found, the bullet hole in the ceiling and spatter on the floor
beneath the hole, and Williams’s body as discovered by police. The photographs of
Williams’s body showed the position in which she was discovered, the nature of her
gunshot injuries, the placement and condition of her arms and hands, and that her left arm
was positioned under the bed to an extent. During closing arguments, the prosecutor
presented a visual slide regarding flight of a defendant, and a visual demonstration of the
events leading to the shooting in an attempt to show that the events could not have
occurred the way Smith claimed. Smith objected and moved for a mistrial on these
bases, and the court denied Smith’s requests. The jury received final jury instructions on
the crime and the elements of murder and the lesser included offenses of voluntary
manslaughter and reckless homicide. The jury found Smith guilty of murder. The court
sentenced him to fifty-five years in the Department of Correction.
DISCUSSION
Smith argues the trial court should have excluded evidence of the Labor Day 2011
altercation and that during closing argument the prosecutor committed prosecutorial
misconduct requiring reversal. 8 I.
The first issue is whether the court erred in admitting evidence of the altercation
between Smith and Williams on Labor Day of 2011. The admission and exclusion of
evidence falls within the sound discretion of the trial court, and we review the admission
of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.
2002). An abuse of discretion occurs “where the decision is clearly against the logic and
effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).
“Errors in the admission or exclusion of evidence are to be disregarded as harmless error
unless they affect the substantial rights of a party.” Fleener v. State, 656 N.E.2d 1140,
1141 (Ind. 1995) (citations omitted).
Smith contends that the evidence of the altercation on Labor Day of 2011 was
improper character evidence and should have been excluded under Ind. Evidence Rules
404(b). He argues that there were many ways to demonstrate the essence of his
relationship with Williams without the introduction of the prejudicial prior act, that he
was portrayed as a man who would strike his girlfriend in anger, and that this likely led
the jury to the forbidden inference that he was capable of purposely shooting her. The
State maintains that the challenged evidence was admissible under Ind. Evidence Rule
404(b) and that a defendant’s prior acts against a victim of a homicide are relevant to
show the hostile relationship between the parties and the defendant’s motive for
committing the crime and to rebut Smith’s claim of an accidental shooting. The State
further argues that, while incidents of domestic violence may have less probative value if
they are remote in time, here the Labor Day altercation happened less than five months
before Williams’s death and in the same residence where she was found. The State also 9 points out that Smith brought up the Labor Day incident during his own direct testimony,
that defense counsel referred to the incident during his closing argument in an attempt to
lend plausibility to Smith’s version of the fatal shooting, and that Smith was not denied a
fair trial.
Ind. Evidence Rule 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the
court must determine that the evidence of other crimes, wrongs, or acts is relevant to a
matter at issue other than the defendant’s propensity to commit the charged act; and (2)
the court must balance the probative value of the evidence against its prejudicial effect
pursuant to Rule 403. Boone v. State, 728 N.E.2d 135, 137-138 (Ind. 2000), reh’g
denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). The evidence is inadmissible
when the State offers it only to produce the “forbidden inference” that the defendant has
engaged in other, uncharged misconduct and the charged conduct was in conformity with
the uncharged misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). The trial
court has wide latitude, however, in weighing the probative value of the evidence against
the possible prejudice of its admission. Id. If evidence has some purpose besides
behavior in conformity with a character trait and the balancing test is favorable, the trial
court can elect to admit the evidence. Boone, 728 N.E.2d at 138. For instance, evidence 10 which is necessary for the jury to understand the relationships between the victim,
various witnesses, and the defendant may be admissible. See Wilson v. State, 765 N.E.2d
1265, 1270-1271 (Ind. 2002).
The record reveals that Casner testified, as set forth above, that Smith and
Williams had a verbal and physical altercation on Labor Day of 2011, that he heard Smith
and Williams screaming at each other, that he observed Williams pull Smith’s cheek and
Smith bring his fist down and his fist go up two times, that he and another person went
inside and pulled Smith off of Williams, and that Williams crawled under the kitchen
table and was sobbing and in a fetal position rocking back and forth. This evidence
demonstrated the sometimes hostile and physical nature of the relationship between
Smith and Williams and is relevant to whether Williams was or was not the victim of an
accidental shooting. See Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996) (holding that
prior misconduct was “admissible because it demonstrated the defendant’s motive and
intent to commit the murder and illuminated the relationship between the defendant and
victim”); Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994) (prior threats of violence to ex-
wife and victim admissible to show the relationship between the parties and defendant’s
motive), reh’g denied; Price v. State, 619 N.E.2d 582, 584 (Ind. 1993) (prior bad acts
against the victim are admissible “to show the relationship between the parties and
appellant’s motive”), reh’g denied; Iqbal v. State, 805 N.E.2d 401, 408-409 (Ind. Ct.
App. 2004) (holding that evidence relating to a prior incident in which the defendant put
a gun to the victim’s head and threatened to kill her was indicative of the defendant’s
relationship with the victim and highly relevant for his motive to shoot the victim, that
the defendant’s “assertion of an accident is indicative of the nature of the relationship 11 between the parties, characterized by jealousy and denial, and ultimately culminating into
hostility and murder,” that the evidence was “relevant to show the absence of the gun
accidentally being fired,” and that the trial court did not abuse its discretion by admitting
the defendant’s bad acts under Rule 404(b)).
In addition, the testimony of the altercation was not overly graphic or otherwise
significantly prejudicial. The trial court explained to the jury that the testimony should
be considered for the limited purposes of showing proof of motive, intent, or the absence
of mistake or accident, and we cannot say that the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice. See Hicks, 690 N.E.2d at 223
(noting that “at some point testimony about every incident of violence between the two
becomes more prejudicial than probative,” that evidence of two of the incidents
illustrated the hostile relationship that could have been a motive for murder, that evidence
of a third incident was graphic and of fairly low probative value in view of its remoteness
in time and thus inadmissible, and that considered in light of the other evidence about the
relationship the improperly-admitted evidence regarding the third incident was not
grounds for reversal). The trial court did not abuse its discretion in admitting the
challenged evidence of Smith’s altercation with Williams on Labor Day of 2011, and the
admission of the evidence is not grounds for reversal.
II.
The next issue is whether any prosecutorial misconduct requires reversal of
Smith’s conviction. Smith asserts that the misstatements of law and fact during the
prosecutor’s closing argument amounted to prosecutorial misconduct which placed him
in grave peril and hampered his right to a fair trial, and that the trial court erred in 12 denying his motions for mistrial. Smith specifically argues that prosecutorial misconduct
occurred when the prosecutor attempted to present to the jury an instruction regarding
evidence which tends to show an attempt to conceal or suppress and presented a visual
demonstration of the events leading to the shooting and in doing so inaccurately
portrayed the evidence.
In reviewing a claim of prosecutorial misconduct, we determine: (1) whether the
prosecutor engaged in misconduct, and if so, (2) whether that misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to which he or she should
not have been subjected. Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001). The
“gravity of peril” is measured by the “probable persuasive effect of the misconduct on the
jury’s decision, not on the degree of impropriety of the conduct.” Id. When deciding
whether a mistrial is appropriate, the trial court is in the best position to gauge the
surrounding circumstances and the potential impact on the jury. Stephenson v. State, 742
N.E.2d 463, 482 (Ind. 2001), cert. denied, 534 U.S. 1105, 122 S. Ct. 905 (2002). A
mistrial is “an extreme remedy granted only when no other method can rectify the
situation.” Overstreet v. State, 783 N.E.2d 1140, 1155 (Ind. 2003). The denial of a
mistrial lies within the sound discretion of the trial court, and will be reversed only upon
a finding of an abuse of discretion. Coleman, 750 N.E.2d at 375. An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Smith, 754 N.E.2d at 504.
A. Reference to Flight
The State initially requested that the jury receive an instruction regarding
consciousness of guilt which could include escape or fleeing from the scene of the crime, 13 and the court denied the request. At one point during the State’s closing argument, the
prosecutor argued “[t]here’s some law I would like to make you aware of” that “isn’t
going to be in the final instructions.” Transcript at 503-504. Smith objected and stated it
would be improper for the State to discuss law not included in the jury instructions.
During a sidebar, Smith argued that the State could not argue flight as being evidence of
guilt and moved for a mistrial. The trial court told the prosecutor: “You can [] argue as
advocate [] that the evidence would show that him fleeing the scene should be – or you
can construe that as evidence of guilt . . . .” Id. at 506. The court then told the prosecutor
“[d]o not put up that screen again”1 and denied Smith’s request for mistrial. Id. The
court then admonished the jury stating: “I didn’t quite see what was up there. But what
was [] up there . . . was something about flight and [the prosecutor] indicated this is the
law, that there is law out there – the answer is that it is not. You know, what was up there
is not the law of this case. [The prosecutor] can make an argument as advocate for the
State of Indiana . . . on how you may construe the defendant’s actions, that’s not the
applicable law in this case. Applicable law in this case will be given to you by way of
final instruction. Please keep that in mind.” Id. at 506-507. The final jury instructions
provided that “[t]he unsworn statements or comments of counsel on either side of the
case should not be considered as evidence in the case.” Appellant’s Appendix at 203.
The jury instructions also provided that the instructions are the best source as to the law
applicable to the case.
We have observed that it is proper for a prosecutor to argue both law and fact
during final argument. Neville v. State, 976 N.E.2d 1252, 1261 (Ind. Ct. App. 2012)
1 From the transcript, it appears that the prosecutor was presenting a slide presentation. 14 (citation omitted), trans. denied. In judging the propriety of a prosecutor’s remarks, we
consider statements in the context of the argument as a whole. Seide v. State, 784 N.E.2d
974, 977 (Ind. Ct. App. 2003). The Indiana Supreme Court has noted that flight and
related conduct may be considered by a jury in determining a defendant’s guilt. Dill v.
State, 741 N.E.2d 1230, 1232 (Ind. 2001). The Court further noted that, “although
evidence of flight may under appropriate circumstances be relevant, admissible, and a
proper subject for counsel’s closing argument, it does not follow that a trial court should
give a discrete instruction highlighting such evidence” and that “instructions that
unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case are
disapproved.” Id. The jury is presumed to follow the trial court’s instructions and not
law recited by counsel during arguments. Laux v. State, 985 N.E.2d 739, 750 (Ind. Ct.
App. 2013), trans. denied.
Given the extent and nature of the challenged comments regarding flight, the trial
court’s admonishment to the jury, and the jury instructions, we conclude that any
prejudicial impact caused by the prosecutor’s statements was minimal and that Smith was
not placed in a position of grave peril to which he should not have been subjected. See
Wright v. State, 690 N.E.2d 1098, 1112 (Ind. 1997) (holding that the defendant was not
placed in a position of grave peril where an improper comment by the prosecutor was
fleeting and the jury was instructed that comments of counsel were not evidence), reh’g
denied. Moreover, to the extent the court may have erred with respect to sufficiently
admonishing the jury, we find any such error harmless based upon the evidence and in
light of the limited extent of the prosecutor’s comments in the context of the argument as
15 a whole. We cannot say the trial court abused its discretion in denying Smith’s motion
for mistrial on this basis.
B. Demonstration
We next turn to Smith’s argument regarding the State’s demonstration of the
events leading to the shooting. During the State’s rebuttal closing argument, the
prosecutor argued that it was physically impossible for the shooting to have occurred the
way Smith said that it did, and a deputy prosecutor and a detective attempted to present a
demonstration of Smith’s version of events. Smith objected to the demonstration on the
basis that it was testimonial, and the court overruled the objection, stating and cautioning
the jury that the presentation was demonstrative only. Smith interjected that the State’s
demonstration indicated Smith used his right hand to grab the gun although Smith had
indicated he had used his left hand, and the court reiterated that the prosecutor’s
argument was persuasive only and instructed the jury that their memory of the evidence
presented during the trial is what mattered. The State presented the demonstration
indicating a struggle between Smith and Williams, how they would have fallen, and
where the gun would have been when it discharged. Defense counsel moved for a
mistrial, and the court denied the motion.
Smith essentially contends on appeal that the prosecutor’s demonstration misstated
or mischaracterized his testimony and that the misconduct placed him in grave peril.
Again, this court has observed that it is proper for a prosecutor to argue both law and fact
during final argument and propound conclusions based upon the prosecutor’s analysis of
the evidence. Neville, 976 N.E.2d at 1261 (citation omitted). We also note, however,
that a prosecutor’s comments can be prejudicial if they have an impact on the jury’s 16 ability to judge the evidence fairly. Id. (citation omitted). Prosecutors may not argue
facts not in evidence. Id.
We note that the heart of Smith’s defense was that the shooting resulting in
Williams’s death was accidental and thus that he had not intended to kill her. In light of
Smith’s defense and testimony attempting to explain his version of how the shooting
occurred, the State argued that the shooting was not an accident and pointed to evidence
to support its position. The demonstration was an attempt to convince the jury that
Smith’s version of the shooting—including a struggle over the gun and the gun
accidentally discharging—was not believable based upon where Williams sustained a
gunshot, how her body was positioned, and the condition and position of her hands.
The demonstration comprises approximately four pages of the State’s seventeen-
page rebuttal argument in the trial transcript. The jury heard an extended argument by
the prosecutor that the shooting was not an accident as Smith claimed, citing the position
of Williams’s body, the fact that the bullet traveled from her eye through her head,
through her skull, and then through the floor, and the evidence which showed that
Williams was pinned to the floor and helpless when Smith pulled the trigger. During the
demonstration, the prosecutor argued that no struggle had occurred between Smith and
Williams in the manner Smith had testified, noted the position of Williams’s limbs and
where the gun would have been discharged, and argued that Williams’s hands “were not
on that gun” and that “[t]he story does not add up.” Transcript at 528.
Moreover, after the court denied Smith’s motion for a mistrial, the prosecutor
specifically argued that the position and condition of Williams’s body on the floor,
including the facts that her knees were propped up, her legs were spread wide and almost 17 tucked underneath her, and she had scratches on her stomach, indicated that Williams had
not just fallen to the floor when the gun was discharged but that she was pinned to the
floor and attempting to break free from Smith. The State argued that the photographs
suggest that Smith straddled Williams, that her legs were trying to get traction to crawl
away from him, and that he restrained her. The State further argued that the photographs
showing the condition of Williams’s hands indicated there was no stippling, blowback, or
blood, that the photographs showing the condition of her face indicated there was
stippling on her face, and that if Williams’s hands had been near the gun and her face
when the gun discharged as Smith claimed then there would have been stippling on her
hands as well and some kind of other injury to her hand if it were on the cylinder of the
revolver. The State argued that the items around Williams’s body, including a dish and
trinkets, were not disturbed, that the bed was right next to where Williams fell, that a free
fall would have shaken something, and that the photographs indicate that nothing was
moved and that no free fall occurred. The State also argued that Smith was angry, noted
that there was no way that Smith looked at Williams and did not see the gunshot wound
when he shook her, pointed to Smith’s demeanor while testifying, argued that he was
controlling and showed no emotion and blamed Williams’s actions for the shooting, and
that he had lied about the shooting being an accident.
We note that the jury viewed the photographic evidence of Williams’s body and
the position of her limbs. The detective who was responsible for the investigation of
Williams’s death testified that he believed Smith had murdered Williams based upon the
positioning of Williams’s body, the tumultuous relationship of Smith and Williams, and
Smith’s conduct after the shooting. The detective testified that he believed Williams was 18 flat on her back when the shot that killed her was fired. The evidence shows that the
bullet, fired from within approximately three feet, entered Williams’s head through her
left eye, angled slightly upwards, fractured her eyeball and the base of her skull, passed
through her brain, fractured the top of her skull, and exited her head and traveled through
the floor and into the room below. Blood pooled behind Williams’s head and dripped
through the bullet hole in the floor and into the room below. The evidence shows that
Williams’s arms were at her side, she was dressed only in a black robe which was open
and revealed her naked body from several inches above her waist to her feet, and her
knees were bent up and spread apart. Evidence was presented to the jury from which it
could have concluded that Williams was pinned against the floor by Smith, that her arms
and hands were not on or around the gun when it discharged, and that she had not just
fallen to the floor when she was shot based on the position and condition of her body,
legs, arms, one of which was under the bed, and hands, which showed none of the
blowback or blood spatter which was visible on her face and surrounding area. Further,
the court admonished the jury that, to the extent the demonstration differed from Smith’s
testimony, their memories are what mattered, and the jury was instructed that the
comments of counsel should not be considered as evidence in the case.
Based upon the evidence before the jury and the arguments of the State and
Smith’s defense as a whole, and especially in light of the trial court’s admonishment and
the final jury instructions, we conclude that even if it was misconduct, the prosecutor’s
demonstration did not impact the jury’s ability to judge the evidence fairly and did not
place Smith in a position of grave peril to which he should not have been subjected. The
trial court did not abuse its discretion in denying Smith’s motion for mistrial on this basis. 19 CONCLUSION
For the foregoing reasons, we affirm Smith’s conviction for murder.
Affirmed.
NAJAM, J., and MATHIAS, J., concur.