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Two prosecutors’ dramatic courtroom re-enactment of a woman stabbing her husband to death while he was tied to a bed was supported by the evidence and did not unfairly prejudice the woman’s defense, Texas’ 14th Court of Appeals held recently. “This demonstration did not have the undue tendency to suggest decision on an improper basis,” Justice Wanda McKee Fowler wrote for the three-justice panel in Susan Lucille Wright v. State. Chief Justice Adele Hedges and Justice Kem Thompson Frost joined Fowler in the Nov. 17 decision affirming Wright’s conviction. According to the 14th Court’s opinion, Wright claimed she acted in self-defense when she began stabbing her husband, Jeff. Wright claimed that her husband had raped her and then threatened her with a knife before she got the knife away from him and stabbed him several times. Wright claimed that she then suffered “a break from reality” and tied one of her husband’s hands to the bed before she began stabbing him in a panic. The medical examiner found that the husband was stabbed at least 193 times, Fowler wrote in the opinion. As noted in the opinion, prosecutors argued that Wright planned the January 2003 murder, because she wanted to benefit from her husband’s $200,000 life insurance policy. Law enforcement officers found the husband’s partially buried body in the backyard of the couple’s home five days after the murder. Prosecutors staged the in-court demonstration on the couple’s bloodstained bed to show how Wright accomplished the murder, Fowler wrote in the opinion. The jury believed the prosecution’s theory of the crime, finding Wright guilty of first-degree murder in her husband’s death and assessing her punishment at 25 years in prison. After 263rd District Judge Jim Wallace denied her motion for a new trial, Wright appealed to the 14th Court. She raised as her primary issue that the trial court erred in permitting prosecutors to stage the in-court demonstration of its theory of how the husband died, because “it caused the jurors to confuse high drama with reality,” according to the opinion. Fowler noted in the opinion that Harris County Assistant District Attorney Kelly Siegler, the lead prosecutor, sought to bring the bed into the courtroom to demonstrate the state’s theory of the case to the jury. Overruling the defense’s objections, Wallace ruled that he would allow prosecutors to present the re-enactment, if they could show there was some basis in fact for the demonstration, Fowler wrote. According to the opinion, Siegler asked Detective Mark Reynolds of the Harris County Sheriff’s Department, the lead detective on the case, questions to establish that most of the stab wounds were on the front of the husband’s body, indicating that he was laying face up when he was killed. By questioning Reynolds, Siegler also established that she and Paul Doyle, the prosecutor who portrayed the husband in the re-enactment, were approximately the same height and weight as the Wrights. The opinion further noted that Reynolds testified that neckties and bathrobe sashes that Siegler produced in court were similar to the ligatures that he saw on the husband’s body. Siegler tied both of Doyle’s wrists and both of his ankles to the bed to demonstrate the prosecution’s theory that the husband was tied down when he was killed, and then Siegler straddled Doyle to demonstrate the stabbing, according to the opinion. As noted in the opinion, the defense objected that the evidence showed a ligature was on only one of the husband’s ankles when his body was found, and Wallace ordered Siegler to free one of Doyle’s ankles. TO WATCH OR NOT? Wright argued in her brief to the 14th Court that the demonstration violated Texas Rules of Evidence 602 and 403. In her Rule 602 argument, Wright contended that Reynolds did not have personal knowledge of the murder, and the state failed to show that the demonstration was substantially similar to the events it portrayed. Wright also argued that the demonstration violated Rule 403, because it was unfairly prejudicial. However, prosecutors argued in their brief to the 14th Court that the appeals court would have to view the re-enactment to resolve Wright’s contentions about the demonstration. That’s not possible, prosecutors argued, because the appellate record did not have an image of the re-enactment. According to the prosecutors’ brief, Wright attached a DVD of Court TV’s coverage of the demonstration as an exhibit to her motion for a hearing and new trial. Prosecutors argued in their brief that the 13th Court of Appeals’ 2001 decision in Martins v. State stands for the proposition that affidavits attached to a motion for a new trial are pleadings, not evidence. Wright contended in her brief that Martins is distinguishable, because the trial court denied her motion without a hearing, which deprived her of an opportunity to offer the DVD into evidence. The 14th Court held that it could not consider the DVD and would rely on the more than 20 pages of explicit trial testimony that detailed the demonstration. “For years, appellate courts have decided the admissibility of in-court demonstrations without the benefit of videos,” Fowler wrote in the opinion. Houston solo Brian Wice, Wright’s lead attorney on appeal, says the 14th Court’s refusal to consider the DVD of the re-enactment will be the focal point of Wright’s petition for discretionary review to the Texas Court of Criminal Appeals. “It’s flat wrong,” Wice says of the panel’s decision regarding the recording. Wice says the trial court denied Wright’s motion for a new trial without a hearing, so Wright never had an opportunity to present the DVD as evidence. “It sounds to me that the [14th Court] is saying Wright didn’t make the right kind of effort to get [the DVD] admitted into evidence,” says University of Texas School of Law professor George Dix, who read the appeals court’s opinion. Dix, who teaches criminal procedure, says Wright didn’t make it clear that she wanted the trial court to admit the DVD into evidence. “We did all that we could to make sure that DVD was made part of the record in the trial court,” Wice says. “If you claim in a motion for a new trial that an in-court re-enactment was prejudicial, why would you attach a real-time version of it unless you wanted it to be a part of the record?” Wice asks. Wice questions how the appeals court could analyze the re-enactment unless it looked at the evidence on the DVD. “The camera doesn’t lie,” he says. Dan McCrory, the Harris County assistant district attorney who represents the state on appeal, says the DVD that Wright wanted the 14th Court to consider had never been authenticated. “It’s not been certified by a clerk or a court reporter,” McCrory says. McCrory says courts long have allowed demonstrations of how crimes have been committed. Prosecutors noted in their brief to the 14th Court that the Court of Criminal Appeals concluded in 1923′s Stembridge v. State that a trial court did not err in allowing prosecutors to set up a bed in the courtroom to demonstrate how a wife shot to death her husband. “To me, it’s just another means of communicating the state’s theory to the jury,” McCrory says of re-enactments. The 14th Court held that the re-enactment in Wright did not violate Rule 602, because Reynolds had personal knowledge of a number of key facts about the murder and could make reasonable inferences from the facts he knew. But, according to the opinion, Rule 602 is not the controlling factor in determining the admissibility of the demonstration. “Case law generally focuses on whether the demonstration was substantially similar to the event,” Fowler wrote, citing, among other decisions, the Court of Criminal Appeals’ 1989 ruling in Valdez v. State. The 14th Court held that the in-court re-enactment in Wright was substantially similar to the conditions of the actual event. The appeals court further held that the re-enactment did not violate Rule 403, because it was not unfairly prejudicial. “We agree with [ Wright] that the demonstration went to the heart of her case and that it hurt her defense. But all state’s evidence, if effective, hurts a defendant’s defense,” Fowler wrote. “The crime itself was dramatic,” Siegler says of Jeff Wright’s murder. “It wasn’t that our demonstration made up something that didn’t happen.”

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