State v. Brown

337 S.W.3d 12, 2011 Mo. LEXIS 123, 2011 WL 1885183
CourtSupreme Court of Missouri
DecidedMay 17, 2011
DocketSC 90853
StatusPublished
Cited by29 cases

This text of 337 S.W.3d 12 (State v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 337 S.W.3d 12, 2011 Mo. LEXIS 123, 2011 WL 1885183 (Mo. 2011).

Opinions

[14]*14RICHARD B. TEITELMAN, Judge.

Anthony Brown appeals his convictions for murder in the second degree, section 565.021 1 and armed criminal action, section 571.015. At trial, Brown claimed self-defense. During closing arguments, the trial court permitted the State to use a gun as a demonstrative exhibit to rebut Brown’s self-defense argument. The State used the gun to show that the victim could not have carried and drawn the gun as Brown asserted. There was no evidence that the gun used as an exhibit in closing arguments was similar in size or shape to the victim’s gun. Consequently, the judgment is reversed, and the case is remanded.

FACTS

Brown and the victim attended a children’s birthday party. They began to argue. Brown knew the victim sometimes carried a gun. As other guests began arguing, Brown went to retrieve a gun. Brown held the gun and approached victim. Brown and victim resumed them argument. Brown fired several shots and fatally wounded victim. Brown was charged with first-degree murder and armed criminal action.

At trial, Brown testified that he shot the victim in self-defense because he believed his life was in danger. Brown testified that the victim was carrying a gun in the left pocket of his sweatpants and that he fired when the victim reached for the gun. Two other witnesses also testified that the victim was carrying a gun in the left pocket of his sweatpants and, prior to the shooting, the victim placed his hand in his left pocket. In addition to the evidence that the victim was carrying a gun, Brown also presented evidence that the victim was known to carry a gun, was upset with and had threatened Brown multiple times, and that Brown told his (Brown’s) mother the day after the shooting that the shooting was self-defense because he was afraid for his life.

Prior to closing arguments, the State informed the court that it intended to use a .38 revolver to demonstrate that the gun the victim was carrying would not have fit in his left sweatpants pocket in the way described by the witnesses. The court overruled Brown’s objection that the gun should not be used in closing argument because it had not been admitted into evidence and there was no evidence that the gun was similar to the victim’s gun. The State used the victim’s sweatpants and the .38 revolver as demonstrative exhibits during closing argument.

During deliberations, the jury asked to see the revolver the State had used in closing argument. The trial court did not allow the jury to view the revolver because it “was not received in evidence.” The trial court also informed the jury that “[y]ou are to be guided by your recollection of the evidence.”

ANALYSIS

When counsel objects to a closing argument, an appellate court will reverse the trial court’s decision with regard to the argument only upon a showing of abuse of discretion by the trial court. State v. Shurn, 866 S.W.2d 447, 460 (Mo. banc 1993).

A prosecutor is allowed to argue the evidence and all reasonable inferences from the evidence during closing arguments. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994). Although the revolver used by the State in its closing argument was not admitted into evidence, it does not follow that the prosecutor can use [15]*15an otherwise inadmissible weapon to r.ebut the Brown’s defense. The latitude given to parties in closing does not serve as an end run around the law of evidence.

Demonstrative evidence, including a weapon, is admissible if the evidence is both legally and logically relevant. State v. Freeman, 269 S.W.3d 422, 427 (Mo. banc 2008). Logical relevance refers to the tendency “to make the existence of a material fact more or less probable.” State v. Anderson, 306 S.W.3d 529, 538 (Mo. banc 2010). Legal relevance refers to the assessment of probative value relative to the risk of “unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Id. Therefore, when assessing the relevance of demonstrative evidence, a court must ensure that the evidence is a fair representation of what is being demonstrated and that it is not inflammatory, deceptive or misleading. Freeman, 269 S.W.3d at 427; see also State v. Silvey, 894 S.W.2d 662, 667-68 (Mo. banc 1995).

The State used the .38 revolver to rebut Brown’s self-defense theory by demonstrating that it was impossible for the victim to have carried and drawn his gun in the manner described by defense witnesses. Therefore, under the rules of evidence, the relevance of the .38 revolver was dependent on its physical similarity with the victim’s gun. If the .38 revolver differed substantially in size or shape from the victim’s gun, then the weapon likely would be inadmissible because it did not constitute a “fair representation of what is being demonstrated.” Freeman, 269 S.W.3d at 427.

The limitations on the admissibility of demonstrative evidence are illustrated in, among other cases, State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); State v. Grant, 810 S.W.2d 591, 592 (Mo.App.1991); and State v. Silvey, 894 S.W.2d 662 (Mo. banc 1995).

In Wynne, the trial court in a murder trial admitted a pistol unconnected with the Brown for the purpose of demonstrating how far a pistol stuck out of an individual’s pocket. . 182 S.W.2d at 300. The court reversed the conviction because the demonstration was improper. There was no testimony that the individual carried a gun similar to the one used in the demonstration, no testimony regarding the size of the individual’s pockets, and the demonstration could have been just as effective without the use of the pistol as with the use of the pistol. Id. at 300.

In Grant, .the court reversed a conviction because the prosecutor asked a witness to hold a pistol unconnected to the Brown to the prosecutor’s head in an attempt to demonstrate how the witness could see into the chamber of the gun and observe that it was loaded. There was no evidence that the pistol used in the demonstration was at all similar to the one used in the crime. 810 S.W.2d at 592. In addition, it was not shown whether bullets would have been visible if the gun were actually loaded. Id.

Finally, in Silvey, the Brown argued that the trial court erred by allowing the State to use a “butterfly knife” while questioning witnesses. Unlike Wynne and Grant, the demonstration was proper because the State had shown through the testimony of three witnesses that the knife used at trial was similar to the knife owned by the Brown. 894 S.W.2d at 668. Additionally, the demonstration was particularly relevant because the knife’s “unique and almost indescribable character” made it difficult to describe accurately solely by testimony.' Id.

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Bluebook (online)
337 S.W.3d 12, 2011 Mo. LEXIS 123, 2011 WL 1885183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-mo-2011.