 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Werner6/5/2003
shotgun. At this point, counsel for defendant again moved to exclude the photographs, citing Rule 403 of the Rhode Island Rules of Evidence. This rule authorizes the exclusion of evidence that may be relevant but is determined to be unfairly prejudicial. After hearing the arguments of counsel, the trial justice, at this point in the trial, concluded that the potential for unfair prejudice from the introduction of the photographs was too great and he therefore excluded them from evidence. Thereupon, counsel for the prosecution said that she intended to make an additional effort to establish from witnesses available to the state "that the weapon in the photo is the same as state's 7 * * * ." She further said that she wanted to alert the court to anticipate that line of questioning and that thereafter she would renew her motion to admit the photographs.
It was in this context that the prosecution presented Commander Gerald Gorman as an expert witness and asked him to compare the weapon seized from Apartment 14A with the weapon depicted in two of the photographs. A voir dire examination of Commander Gorman was held outside the presence of the jury. In the course of the voir dire examination, Commander Gorman testified that the shotgun, which was a Mossberg commando weapon, had been altered in a number of ways that made it uniquely identifiable. In effect, he said that the weapon had become "homemade." He stated that in his opinion it was the same weapon as that shown in two of the photographs. He went on to say that there were not that many weapons so altered to be found.
Defense counsel objected on the ground that the state had failed to provide advance notice of this testimony pursuant to Rule 16(h) of the Superior Court Rules of Criminal Procedure. This rule required the state to fulfill a continuing duty to update its discovery during the course of the trial. The trial justice denied defendant's motion to exclude on this ground with the following comment:
"The State had every good reason to believe that the Court would allow the pictures that the Court had refused so far to allow in evidence * * * they were found as the result of an authorized search warrant * * * and that they stated every reason to believe they were probative, relevant, and material to the case at hand, and
* * * the main reason * * * that the Court declined to admit them was because of what this Court felt to be the extreme undue prejudice to this defendant * * * ."
The trial justice further found that defendant could not have been surprised by this testimony because the prosecutor earlier had said - when the trial justice decided to exclude the photographs - that she would attempt by further testimony to increase the nexus between the weapon depicted in two of the photographs and the actual weapon in evidence. The trial justice further stated that Commander Gorman was a witness whose expertise was known in advance to the defense. He therefore decided to admit Commander Gorman's testimony and two of the photographs in which the shotgun was depicted. The trial justice found that there was no discovery violation by the state. He noted that the defense had been notified in advance of trial that Commander Gorman would be called to testify as a firearms expert. He further noted that when he had suggested the necessity to establish a nexus between the actual weapon and the weapon shown in the two photographs, the prosecutor stated emphatically that she intended to establish this nexus, thus alerting the trial justice and defendant's counsel of her intent to establish the connection from witnesses available to her.
Considering the context in which the trial justice admitted Comm
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Rhode Island DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|