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Lancaster v. State3/28/2002
d made separate rulings regarding each statement that defendant found objectionable. The court properly required the prosecution to edit the tape to remove material that was irrelevant or that put appellant's character in issue. The court committed no error. Carroll v. State, 261 Ga. 553, 408 S.E.2d 412, 413 (1991).
Nothing resembling this process took place in the instant case. While the trial judge did view the videotape prior to making a ruling, the record does not reflect that he identified any statement or statements that he found to be consistent, or that he determined the relative probative value of such statements, or that he determined the potential for unfair prejudice if such statements were admitted.
[ ] We can only conclude that it was error for the trial court to admit this videotape into evidence. That conclusion leads to the ultimate question of whether such error requires reversal of the appellant's convictions. W.R.A.P. 9.04 provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court." W.R.Cr.P. 52(a) and W.R.E. 1.03(a) are substantially similar. The test for "harmless error," stated in its reverse sense, is as follows:
"An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. To demonstrate harmful error, the defendant must show prejudice under 'circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.' Johnson v. State, 790 P.2d 231, 232 (Wyo.1990)." Skinner v. State, 2001 WY 102, 25, 33 P.3d 758, 767 (Wyo. 2001) (quoting Solis, 981 P.2d at 36). The appellant has the burden of proving that an error has been prejudicial. Spilman v. State, 633 P.2d 183, 185 (Wyo. 1981).
[ ] There is no reasonable possibility that the appellant in the instant case would have been acquitted absent introduction of the videotape. The videotape was merely cumulative to the voluminous evidence produced by the State that tended to prove the appellant's guilt. See Curl, 898 P.2d at 374. Another videotape of the appellant's apartment, showing Penn's deceased body and the bloody crime scene, was introduced into evidence. Numerous photographs, crime scene schematics, medical reports and Penn's autopsy report went to the jury. The testimony by both of the apartment managers as to the immediate aftermath of the crimes corroborated Hanson's version. Several of the appellant's knives and the rifle were admitted. The business records showing the appellant's purchase of the rifle came into evidence. In short, there was a massive amount of evidence incriminating the appellant.
[ ] Other circumstances tended to reduce or eliminate any unfairly prejudicial effect that the videotape might have had. The videotaped witness, Hanson, testified at trial and was subject to cross-examination as to both his trial testimony and the videotape. In addition, the jury's consideration of the videotape was strictly limited by the accompanying cautionary instruction. Beyond that, there was an insufficient identification by the appellant, both at trial and in this appeal, of the specific portion or portions of the videotape that he contended created unfair prejudice. Under the particular circumstances of this case, the appellant has not met his burden of proving that admission of the videotape resulted in prejudicial error.
WHETHER THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT WHEN HE ELICITED FROM WITNESSES (1) A COMMENT ON APPELLANT'S RIGHT TO REMAIN SILENT, (2) VICTIM IMPACT STATEMENTS, AND (3) COMMENTS ON APPELLANT'S VERACITY?
[ ] We
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