United States v. James Ernest Crockett
49 F.3d 1357
8th Cir.
1995
Check Treatment

*1 1357 89, at 2261. S.Ct. at This court has factual findings and to formulate conclusions recognized security that internal is foremost based on findings. It shall then enter a among legitimate penological objectives new decision certify and findings and Gunter, contemplated Turner. Timm v. court; back to conclusions this panel 1093, Cir.1990), cert. de jurisdiction meanwhile retain ap- over the nied, 1209, 2807, 501 U.S. 111 S.Ct. 115 peal. (1991). L.Ed.2d 979 prison

Not all policies reviews or

practices require judicial deference, however.

The District of Columbia Circuit held in Pitts Thornburgh, (1989),

v. 866 F.2d 1450 scrutiny

Turner standard of inapplicable was

to the District policy of Columbia’s of hous

ing women inmates in a distant facility and near-by men inmates in a institution because America, UNITED STATES of practice “general budgetary involved and Plaintiff-Appellee, policy applied choices.” Pitts traditional v. heightened scrutiny required showing government policy sub James CROCKETT, Ernest stantially important related to an govern Defendant-Appellant. mental interest. Turner does not foreclose No. 94-2583. heightened judicial all review. Id. Our eases also indicate that Turner does not ren Appeals, United States Court of prison regulations judicial der immune from Eighth Circuit. Farrier, review. See More v. 984 F.2d 269 — (8th Cir.), denied, —, cert. U.S. 15, Submitted Nov. 1994. (1993) L.Ed.2d 43 (reviewing Decided March 1995. equal protection claim); disabled inmates’ Timm, also (reviewing F.2d inmate claim).

gender equal protection Nor does it

relieve the trial duty of its to “take

cognizance of the valid constitutional claims prison Turner, inmates.” 482 U.S. at

107 S.Ct. at 2259.

Although court noted gener

ally that there were “some clear differences” programming

between at ICIW and at male

institutions, it made no findings factual about services, programs

the various

men and women inmates were similarly situ any particular area,

ated in terms of program programs, differences rea

sons for examining them. After the thou page transcript

sand discussing the rec

ord with counsel at oral it became

apparent this matter is unreviewable

without more findings. detañed factual A necessary,

remand is thus up and it wül be

the trial court to determine correct stan apply

dard to to the facts which it finds.

Accordingly, we vacate the

remand to the trial court to make detailed *2 II, Moines, IA, McCarthy,

Timothy Des argued, appellant. Moines, IA, Atty., Kelly, Asst. U.S. Des

Ed appellee. argued, for MAGILL, Judge, R. Circuit JOHN Before GIBSON, Judge, Circuit Senior LOKEN, Judge. Circuit LOKEN, Judge. Circuit appeals his conviction for Crockett James being possession a felon in of a firearm illegally manufactured fire- possessing 922(g)(1) § of 18 U.S.C. arm violation 5861(c). argues that § 26 U.S.C. admitting photo- the district court1 erred in Four defense witnesses testified that graphs of proper the crime scene without Crockett was fistfight involved in front permitting and in prosecutor foundation of the-club did not have a They firearm. during closing argument project transpar- admitted on cross examination that lost argumentatively encies characterized track of started, shooting when the *3 testimony. Though we share the dis- but Officer Richardson admitted on cross trict concern court’s about this use of a visual exam person same the could not have aid, we find no abuse of discretion there- and been involved in fistfight both the and the fore affirm. shooting. Crockett testified in his own de- fense that guilty he was of fighting but not 26, 1993, At a.m. on June 1:30 Bushwack- shooting. the photograph A taken after nightclub ers in Des Moines for the closed Crockett’s arrest showed facial cuts and night patrons emptied adja- into the bruises consistent fistfight. awith There out, parking fistfight cent lot. A broke conflicting was evidence whether Crockett crowd, large spilled drawing into the and the shooter clothing. wore similar ap- street. Police Officer Debra Richardson proached car, squad and exited her but she Though the trial took less than two greeted remained behind the vehicle when the days deliberated four before convict- with a of rocks from the bystanders. shower ing Crockett of both firearm offenses. After Breining As Lieutenant James to arrived being sentenced to 235 prison, months in assist, gunfire the officers heard from the Crockett raises two issues on appeal. lot, parking Breining Bushwackers ran investigate. to Both officers saw the shooter I. through parking move the lot and duck be- argues Crockett first that the district group parked hind a of Breining ap- ears. court abused its discretion in admitting a proached and ordered him to out with come composite photograph of the Bushwackers empty his hands and raised. Defendant parking lot taken several months after the emerged. Crockett Police arrested shooting. sponsoring the After witness testi found .22-calibre rifle with its barrel daytime fied that the photograph generally

illegally shortened few feet from away the depicted the parking night lot on the of the point of arrest. charged Crockett was with crime, the permitted district court state and federal offenses. The state dire, to counsel conduct voir and the witness dismissed, charges were and these federal admitted he did light not know the fixtures charges proceeded firearm to trial. photograph shown in the working were on trial, bystander At Dean Lewis identified night shooting. the of the lighting Because Crockett as the firing man Lewis saw the was relevant the of identifying issue the gun before slightly he was wounded the shooter, nighttime objected gunfire, testimony consistent with Lewis’s photo lacked the authentication or identifica photo shortly identification of Crockett after 901(a) required by tion Rule of the Federal shooting. the Officers Richardson and However, Rules of Evidence. the court ad they Breining sight testified that never lost photograph mitted the because it “can of of the they shooter from the time first saw jurors some value getting to the a visual firing weapon him the parking the lot until concept of the parking lot as it existed the parked Crockett was arrested behind a car. question.” date prosecution presented also lineup the photos displayed photos to Dean Lewis and A trial court’s determination of the fingerprint crime scene. There was no photograph sufficiently whether a has been authenticated ‘ n ‘willnot be overturned absent evidence, as police the Des Moines had not spent tested firearm casings shell a clear abuse discretion.” found at the scene. Englebrecht, Iowa,

1. The HONORABLE VIETOR, HAROLD D. Unit- Judge ed States District for the Southern District testimony that the brief summaries authenticat- adequately Here, photo was according prosecu- to the gave witnesses parking lot but not layout of the as to the ed that, large, By and recollection. tor’s best All witnesses testified lighting. toas are, thing is one that both- they but there time quite at the lot dark parking was me, sum- that unlike the and that is ered case turned on prosecution’s crime. The witnesses, maries of three Government testimony that police officers’ wit- of the defendant’s the summaries continuously from the the shooter watched characterizations. nesses contain some point of shooting to the point of no this arrest, sel’s effective could details Crockett. on this abuse risk that the photo. more its substantial immediately of rather than on issue. The district Thus, significant voir dire lighting. jury was misled identify layout discretion on the Given testimony that the shooter as lighting, we jury than the court did not defense or confused parking admitting coun- lot what forth.... to be ture, or acterizations “grudgingly,” on rebuttal. I’m not argumentative characterization such % a straightforward, said, pleased with the editorial [*] I *4 use that were don’t and not include this sort of # want “claimed,” Hí used. brief you to use these thing, I summary of an editorial In the want char- # fu- so as objec- his II. renewed promptly Defense counsel The district moved a mistrial. tion and issue, pros- second Crockett’s responded: court transparen- improperly used overhead ecutor I’m that the not satisfied THE COURT: com- closing is more during argument, cies require sufficiently to prejudicial matter is closing arguments, plex and difficult. Before mistrial, for mistrial is and the motion prosecutor, counsel noticed defense denied. overhead trans- Kelly, intended use Edwin to testimony to summarize witness parencies counsel]: [defense MR. McCARTHY jury going objected “the may request I the Court suggest Then influence, too much attention to put too much cautionary on instruction give a further Kelly put paper on that has the words Mr. those? the witness stand.” what was said on

versus ;Ji :}? ‡ objection— district court overruled The going I’m it THE leave COURT: lawyers on the black- explaining, “I let write I it best be left without where it is. think [they what be- quick statement of board jury, by the Court to the further comment then instructed the witness said” —but lieve] you suggest to the and if want to jury: wit- you certainly think that the one don’t Also, arguments be- in the of course instance, grudg- ness, he said said what Kelly projecting be on the lieve Mr. you it you argue, or can leave ingly, can so of what he recalls screen brief summaries you alone if want. is, saying.... That’s all witnesses argues that the district testimony appeal, of what a On recollection by condoning your court abused its discretion Again, if recollection is witness was. misconduct, use prosecutorial different, rely your prejudicial recollection of on during summary transparencies or her testimo- the witness what said closing argument. ny. Kelly’s opening dur- After Mr. argument fails because Crockett’s objection, no made

ing which defense counsel prosecutorial misconduct. there was no immediately called counsel charts, summary diagrams, the district and other use of chambers and stated: permissible into in the generally aids is visual of the trial See Unit pros- sound discretion court. got with the I have a little concern (8th Caswell, 1228, 1235 F.2d My v. 825 transparencies. ed States ecutor’s use these Cir.1987). other aids that summarize just Visual understanding these were was that generally permissible pedagogic Possick, 332, evidence are devices, especially organize Paulino, when used to See 935 F.2d at 753 testimony complex or transactions for the (summary may rejected as “too conclusory See, Baker, jury. e.g., inaccurate”). v. United States 10 or long But so appellate as the (9th 1374, Cir.1993), F.3d 1411-12 cert. de record summarizing contains both the visual —nied, —, 330, U.S. 115 S.Ct. 130 aid and the evidence that it was intended to (1994); L.Ed.2d 289 v. United States Pauli summarize, appellate this is a review no, Cir.), denied, F.2d cert. conduct, meaningfully court can albeit defer- 116 L.Ed.2d 257 U.S. entially. (1991). Such summaries need not be admit Here, complains pros evidence, ted into and therefore can be creat “argumentative ecutor’s characterization” of during closing argument. ed counsel for or testimony use of —the sure, To be there are limits to the use stating that a defense witness “Claimed to be of such devices. Some limits are the function people going car,” one of 6 to bar in same judge’s views as to the most being ground “Told held on for 30 minutes way effective and efficient to conduct a trial. handcuffed,” on face argumen and the most instance, Judge For Vietor observed tative, “Grudgingly admitted on cross he lawyers case that he lets summarize (Em didn’t during shooting.” see Defendant testimony during closing blackboard *5 added.) However, phasis nothing there is arguments and therefore saw no reason to inherently wrong closing argument with be preclude technologically use the more ad ing argumentative, long so as it proper is transparencies. vanced overhead Most trial argument. graphically This distinction is re judges probably agree, would but some vealed in the district court’s admonishment might preclude use of some or all even such prosecutor Kelly closing argu after his during closing argument, devices either be ment: they distracting cause are too or too influen using adjec- don’t think those kinds of tial, simply they waste time. Rul appropriate putting up tives is in a brief ings virtually of this nature are unreviewable summary of what testified to. You appeal. certainly argue can orally you that think other, categorical There are less limits that grudgingly that the witness was rather judge may place a trial on the use of visual admitting something, I don’t mean procedural posture aids that relate to the of a can’t do that. But I think ... it’s not a particular example, prosecu- trial. For here proper summary use the brief of their Kelly apparently tor give did not defense testimony to use those sorts of editorial counsel advance notice of the intended use of argumentative characterizations.... transparencies during closing argument. added.) words, (Emphasis In other the dis- Judge That did not concern prob- Vietor and trict court did not transpar- believe that the ably judges. would not concern- most improper closing argument, encies contained might But some limit use of visual aids in Rather, appeal. an issue reviewable on the closing argument approved by to those the prosecutor Kelly mixing chastised advance, court well in suggested as 5in ;proper argument into fact summaries. Berger, Weinstein & Weinstein’s Evidence criticism, agree ¶ While we -withthat this is an 1006[07], (1994). p. Again, at 1006-24 dis- management, appellate issue of trial not re- cretionary rulings of this nature will seldom view. appeal. ever be overturned on Finally, there are carefully substantive limits on the We have reviewed the aids, pedagogic use of such visual limits that in question. agree with We are appeal that, reviewable on under the abuse of the district court in the context of this trial, discretion appeal “argumentative standard. The standard on the characterizations” necessarily general closing argument. one—whether fair example, the were For pedagogic question device “was so unfair peo one defense witness said there were six misleading require as to ple brought a reversal.” car the that Crockett to Bush- virtually discretion to courts have unfettered night, that while another defense

wackers non-evidentiary de- regulate the use It were in the car. witness said five vices, proce- generally or to achieve either Kelly highlight appropriate prosecutor particular regularity in a dural fairness inconsistency with the minor this rather Moreover, case, pros- in a criminal the case. Similarly, while it was for “claimed.” word creating tangible risk of re- ecution runs witness jury to defense decide augment versible error when seeks he “grudgingly on cross exam that admitted” pedagogic impact argument oral with of its shooting, track of Crockett before lost case, jury example, in For devices. wrong prosecutor nothing with there was four and the case turned on deliberated suggesting closing argument.2 that in Kelly credibility very issue addressed —the that the district court took also note We transpar- prosecutor’s argumentative any influence the trans- steps to cure undue very purpose Because the of a visual encies. had, might highly which is parencies have persuasive type heighten of this is to aid of this nature. See to an issue relevant necessarily impact of oral we Hernandez, States v. United to reverse in a close case if be more inclined Cir.1985). First, prosecutor before unfairly testimony summarized has been Kelly’s argument, court cautioned the summary wrapped or the comes rely recollec- should on their argument. happen not in this But did tions, transparency not summaries. case. Then, Kelly’s closing, the court after initial of the district court is af- Kelly argumentative forbade to use the sum- firmed. during rebuttal and invited de- maries argumentative fense counsel to counter the GIBSON, Judge, JOHN R. Senior Circuit closing, summaries in his own which concurring. did, effectively in quite counsel our view: judg- I concur in the court’s decision and *6 transparen- I have the The reason don’t ment, I part and in Part I. For the most cies, gentlemen, ladies and is because all of language in agree with the Part II. Howev- you ... in last two and it came er, misgivings I have considerable about the just takes more than a verbatim or written practice of the States Dis- Assistant United how testifies. You record someone Attorney displaying personal trict notes way they testify, the have to look at the testimony using projector. an overhead words, way say their and how Perhaps pedagogy, it I some but have questions. overly answer the emphasizes concern that gives prominence undue to the United States circumstances, In these we conclude that the Attorney’s interpretation of the evidence. In in district court did not abuse its discretion future, hope judges that our district denying Crockett’s motion for a mistrial and extremely allowing cautious meth- request cautionary in- additional Perhaps capable recognize ods. counsel will struction. pedagogical devices are no substitute for Though we conclude the use advocacy. effective closing argument in this error, we do not case was not reversible encourage the use of such devices emphasize that the district future. We Thus, 1038, 1048, (1985); argumentative portions see United 2. of the sum- L.Ed.2d credibility Risnes, were maries comments Cir. States v. 912 F.2d evidence, expressions that were based on the not 1990); Peyro, 786 F.2d prosecutor’s personal opinions about wit- (8th Cir.1986). overreaching egregious Even credibility. ness The latter are this nature will not result in reversal unless it prosecutor’s opinion carries with it the im- "the trial, affects the fundamental fairness of the primatur may of the Government and induce the prosecu though may discipline result in to trust the Government's rather Freisinger, States v. tor. See United evidence.” than its own view of the United 1, 18-19, Young, States v. 470 U.S.