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State v. Thomas2/27/2004
on.
We agree with the trial court. This issue has no merit.
C. Providing jurors with transcript
During the State's case-in-chief, Assistant Unites Sates Attorney Tony Arvin read to the jury a transcript of Mr. Day's testimony given on November 9th during the federal proceedings. Simultaneously, the jurors were each provided a copy of the transcript to read. Although Defendant Thomas conceded that the reading of Mr. Day's prior testimony was permissible, he objected to the handing of the transcript to the jury. The trial court responded, "this is not Mr. Day testifying; it's a bit harder for jurors, I think, to follow because it's some sort of neutral presentation of what is otherwise testimony; and so I think it will aid - in my opinion, it will aid the jury in following what is being read." Thus, the trial court overruled Defendant Thomas' objection. However, the trial court further determined that the jury was not to have a written copy with them in the jury room "because that would give undue weight to a written document which is, in essence, testimony - nothing more nothing less."
We find no abuse of discretion in the trial court's ruling on this matter. This issue is without merit.
D. Date of Bond's guilty plea and later date of Day's testimony, and
E. Questioning by Bond's counsel regarding guilty plea
Defendant Bond pled guilty in federal court on November 4, 1998, to the robbery of James Day. Mr. Day subsequently testified about the robbery on November 9, 1998. At trial, Defendant Thomas was concerned that the evidence of the two dates would lead to the inference that, as of November 9, 1998, "the [federal] proceeding went forward against [Defendant] Thomas without [Defendant] Bond." Following argument by defense counsel, the trial court found, "So long as you - as long as is indicated to the jury; that up until November the 4, [Bond] was, indeed, a party to the [federal] proceeding. At that time he entered a guilty plea to these events. And so at the time that Mr. Day testified on November the 9th, in light of the fact that [Bond] entered a guilty plea to these very events five days earlier, he was not, at that time, an actual party to the proceedings." With reference to an objection lodged by Defendant Thomas that this ruling "gives the indication that they were together in that proceeding and that [Defendant Bond] was able to plead guilty and that [Defendant Thomas] possibly disputed something," the trial court further found:
First of all, the fact that the transcript contains references to the jury and even the court, I can only say that we made an effort . . . to avoid referring to the previous proceeding as a trial or what the outcome might have been, who the actual parties were, what the sentence might have been that these men received.
The references to jury and court in the transcript . . . could have been addressed and could have been deleted. The entry of this testimony comes as no surprise to anyone in this courtroom. You all have had, of course, the transcript for years now, and we addressed the issue of the state's desire to enter Mr. Day's testimony . . . . So there's been time for you all to review and request that those matters - those references be deleted had you felt . . .that it was unduly prejudicial to leave them in.
I don't think it's as prejudicial for them to have been in because we're still not referring to precisely what the proceedings [were], what the results were, or anything of that sort. . . .
With regard to what [Defend
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