finding no abuse of discretion when trial court removed four individuals from courtroom, including codefendant, because of concerns that jury would be intimidated and individuals were talking
How later courts described this case
- finding no abuse of discretion when trial court removed four individuals from courtroom, including codefendant, because of concerns that jury would be intimidated and individuals were talking
- finding no plain error where witnesses’ testimonies, though contradictory, tended to place the defendant at the scene of the shooting and firing the gun in question
- “It is well settled that constitutional matters that are not raised and passed upon at trial will not be reviewed for the first time on appeal.” (internal citations and quotation marks omitted)
- “[T]he plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error.”
Written by the judges who cited it.
The opinion
*200 GEER, Judge,
concurring in part and concurring in the result only in part.
I concur in the majority opinion, but write separately because I have a somewhat different view of certain of the evidentiary issues. I-concur fully with the majority’s discussion of the removal of the courtroom spectators, the admission of the testimony of Harvey Jones, and the State’s closing argument.
With respect to the evidence that the .380 was used in other crimes, I believe that defendant’s argument on appeal regarding plain error disregards the defense presented at trial. Defendant repeatedly elicited from the State’s witnesses the fact that guns were shared by gang members. Defendant then, after the State presented the evidence of the other crimes committed using the gun, established on cross-examination that on at least two of the occasions, the police had established that someone other than defendant had been using the gun. In addition, defendant elicited testimony that the gun had been used in the killing of Carlos Clayton, a murder attributed to the State’s key witness, Phillipe Parker.
In defense counsel’s closing argument, he argued at length that the State’s evidence regarding the use of the gun in other crimes meant that the State could not prove that defendant was using the gun on 6 May 2004. In a portion of that part of defense counsel’s closing, he asserted:
Isn’t it amazing that when the SBI folk testified about all the times the gun’s been used, Cates even said that this is an astronomical amount of times that gun’s been used. A .380 handgun’s been used quite frequently.
Why is that important? Because I contend to you that gun passed around as much as a dollar bill. The fact that somebody has a[] dollar bill in their pocket, does that mean that you had it two day [sic] prior or three days prior? No. When something transfers and it gets shared so much you can’t say when somebody had it unless they had it in their possession.
Same thing with this weapon, this .380 handgun. Used by many persons. Many. Even up to April 22, 2004, Little Whammer, AKA William Cox, had the weapon. This is only a week right before Mr. Jones got shot.
*201 In other words, defendant did not object to this evidence at trial because it supported his defense. Under those circumstances, the admission of the evidence cannot be plain error.
For the same reason, I do not believe the admission of Mr. Parker’s testimony that defendant used and sold drugs the night of the shooting was plain error. Defense counsel emphasized that Mr. Parker was using drugs with defendant. Defense counsel contended in closing that Mr. Parker’s testimony was the linchpin of the State’s case and that Mr. Parker’s testimony should be deemed not credible, among other things, because of his extensive drug use the night at issue. Defense counsel outlined all of Mr. Parker’s drug usage (which necessarily included defendant’s drug usage) on 5 May to 6 May 2004 and then argued: “So now the State’s number one witness is on drugs and high with a buzz. One who made all these diagrams, reportedly, gave all this testimony. High on drugs.” Again, defense counsel did not object to the testimony regarding drug usage — which included Mr. Parker’s and defendant’s joint drug usage — because it was important to the impeachment of the State’s most important witness.
With respect to the evidence of gang beliefs and gang graffiti, the entire theory of the trial for both the State and defendant was that this murder was a gang shooting. Defendant argued only that he did not participate in the gang shooting. Far from attempting to exclude gang-related evidence, defendant sought to establish that the State’s witnesses were each gang members. Defendant even elicited evidence suggesting that the victim, Mr. Johnson, was a gang member. Defendant also used the evidence of gang beliefs and practices himself to suggest alternative theories as to what occurred on 6 May 2004. Given the State’s theory and defendant’s defense, I am not convinced that the evidence was irrelevant. Certainly, however, its admission cannot be plain error given the arguments made in the case and the unchallenged evidence presented by both the State and defendant.
Finally, I agree with defendant that if there had been an objection, then the arrest information on the fingerprint record should have been excluded. I cannot, however, conclude that evidence that defendant had been arrested two years earlier for drug possession tilted the scales when the jury was deciding whether or not to convict defendant of murder. Accordingly, I agree with the majority opinion that there was no plain error.