129 Nev., Advance Opinion 14
IN THE SUPREME COURT OF THE STATE OF NEVADA
FRANKIE ALAN WATTERS, No. 59703
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. N V 2 7 2013
TRACE K LINDEMAN
CLE?-KAF SUPREME CO
iall.
DEP y-A- L -
Appeal from a judgment of conviction, pursuant to MI jury
verdict, of possession of a stolen vehicle, grand larceny of a vehicle, and
failure to stop on the signal of a police officer. Eighth Judicial District
Court, Clark County; David B. Barker, Judge.
Reversed and remanded.
Philip J. Kohn, Public Defender, and Audrey M. Conway, Deputy Public
Defender, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Nancy A. Becker, Deputy District
Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PICKERING, C.J.:
We consider whether the State's use of a PowerPoint during
opening statement that includes a slide of the defendant's booking photo
with the word "GUILTY" superimposed across it constitutes improper
SUPREME COURT
OF
NEVADA
(0) 1947A U3 -3S5
advocacy and undermines the presumption of innocence essential to a fair
trial.'
I.
Frankie Alan Watters was charged with and convicted of
possession of a stolen vehicle, grand larceny of a vehicle, and failure to
stop on the signal of a police officer. The charges grew out of a crime spree
in which Watters allegedly stole a car, got in a wreck, fled, stole another
car, became involved in a high-speed chase, ditched the second car, ran
into a store, and was finally arrested after being knocked to the ground
and bitten several times in the leg by a police dog.
At trial, the State used a PowerPoint to support its opening
statement to the jury. The presentation included a slide showing
Watters's booking photo with the word "GUILTY" written across his
battered face.
1Watters also argues that the State presented insufficient evidence
to support the jury's verdict. We conclude that the evidence when viewed
in the light most favorable to the State is sufficient to establish his guilt
beyond a reasonable doubt as determined by a rational trier of fact. See
NRS 205.228(1); NRS 205.273(1)(b); NRS 484B.550(1); Jackson v.
Virginia, 443 U.S. 307, 319 (1979). We decline to consider the other issues
raised on appeal.
SUPREME COURT
OF
NEVADA
2
(0) 1947A
Figure 1. Prosecutor's opening statement PowerPoint slide.
The prosecutor used the PowerPoint first to display the
booking photo, then to add the word "GUILTY," while she wrapped up: "So
after hearing the evidence in the case, we're going to ask you to find the
Defendant guilty on possession of stolen vehicle, guilty on grand larceny
auto, and guilty on failure to stop on a police officer's signal."
The defense reviewed and objected to the booking-photo slide
sequence before opening statements began. The district court overruled
the objection. It observed that such slides are used "all the time. .
They're asking based upon the evidence to find Defendant guilty and
[then] they have [guilty] pop up." 2
Watters had not been in court when the objection was made.
After opening statements, defense counsel made a record that Watters was
"very upset" when the prosecution "showed the picture and wrote the
word[ ] guilty." The court assured Watters that his "lawyer did object
strongly to that [but] PowerPoints under the case [s are] allowed—both
sides are allowed to express where they believe the evidence will take
them and the ultimate conclusion that the jury should reach, and that's all
that photograph does."
"A criminal defendant has a fundamental right to a fair trial
secured by the United States and Nevada Constitutions." Hightower v.
State, 123 Nev. 55, 57,
154 P.3d 639, 640 (2007) (citing U.S. Const. amend.
XIV; Nev. Const. art. 1, § 8). "The presumption of innocence, although not
articulated in the Constitution, is a basic component of a fair trial under
our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503
(1976). "Central to the right to a fair trial, guaranteed by the Sixth and
Fourteenth Amendments, is the principle that 'one accused of a crime is
entitled to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as
The prosecution did not refer to the picture as a booking photo. Cf.
2
United States v. Simmons, 581 F.3d 582, 589 (7th Cir. 2009) ("the use of
mug shots is disfavored and usually impermissible" unless specific need is
shown).
SUPREME COURT
OF
NEVADA
4
(0) 1947A
proof at trial." Holbrook v. Flynn, 475 U.S 560, 567 (1986) (quoting
Taylor v. Kentucky, 436 U.S. 478, 485 (1978)).
The booking-photo slide sequence declared Watters guilty
before the first witness was called and should not have been allowed. An
opening statement outlines "what evidence will be presented, to make it
easier for the jurors to understand what is to follow, and to relate parts of
the evidence and testimony to the whole; it is not an occasion for
argument." United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger,
C.J., concurring); see Garner v. State, 78 Nev. 366, 371,
374 P.2d 525, 528
(1962) ("The purpose of the opening statement is to acquaint the jury and
the court with the nature of the case."). In a criminal case, "Mlle
prosecutor's opening statement should be confined to a statement of the
issues in the case and the evidence the prosecutor intends to offer which
the prosecutor believes in good faith will be available and admissible."
ABA Standards for Criminal Justice: Prosecution Function and Defense
Function, Standard 3-5.5 (3d ed. 1993). It is not "an opportunity to poison
the jury's mind against the defendant or to recite items of highly
questionable evidence." United States v. Brockington, 849 F.2d 872, 875
(4th Cir. 1988) (internal quotation marks omitted), abrogated on other
grounds by Bailey v. United States, 516 U.S. 137, 150 (1995), as stated in
United States v. Chen, 131 F.3d 375, 381 (4th Cir. 1997).
The State contends that State v. Sucharew, 66 P.3d 59, 63-64
(Ariz. Ct. App. 2003), and Dolphy v. State, 707 S.E.2d 56, 58 (Ga. 2011),
support its PowerPoint-supported opening statement to the jury. But in
Sucharew, the prosecution's PowerPoint "was essentially a slide show of
photographic exhibits" and "was not prejudicial or inflammatory." 66 P.3d
at 63-64. And in Dolphy, the trial court sustained the defendant's
SUPREME COURT
OF
NEVADA
(0) 1947A
5
objection to the prosecution's use in opening statement of PowerPoint
slides that read "Defendant's Story Is a Lie" and "People Lie When They
Are Guilty." 707 S.E.2d at 57. The question in Dolphy was whether the
trial court's "immediate corrective action, ordering that the slides be taken
down" and curative instructions defeated Dolphy's argument that "the
trial court. . . deprive [d him] of a fair trial by failing to declare a mistrial
sua sponte." Id.
As these cases suggest, PowerPoint, as an advocate's tool, is
not inherently good or bad. Its propriety depends on content and
application. A prosecutor may use PowerPoint slides to support his or her
opening statement so long as the slides' content is consistent with the
scope and purpose of opening statements and does not put inadmissible
evidence or improper argument before the jury. See Sucharew, 66 P.3d at
63-64. But a PowerPoint may not be used to make an argument visually
that would be improper if made orally. See Dolphy, 707 S.E.2d at 58.
Compare Allred v. State, 120 Nev. 410, 419,
92 P.3d 1246, 1252-53 (2004)
(upholding State's use of annotated photographs as demonstrative exhibits
in closing argument where the photographs were in evidence and the
district court ordered the argumentative annotations removed), with In re
Glasmann, 286 P.3d 673, 676, 678-79 (Wash. 2012) (reversing convictions
where the State used a PowerPoint presentation in closing argument that
included slides featuring the defendant's "unkempt and bloody" booking
photo with the word "GUILTY" being superimposed in different directions
to declare him "GUILTY, GUILTY, GUILTY" of the multiple crimes with
which he was charged; "the prosecutor's modification of photographs by
adding captions was the equivalent of unadmitted evidence" that
SUPREME COURT
OF
NEVADA
(0) 1947A
6
improperly expressed the prosecutor's "personal opinion of guilt" and
deprived Glasmann of a fair trial).
Here, the prosecutor orally declared that she would be asking
the jurors to find Watters guilty. But the PowerPoint that accompanied
her declaration displayed Watters's booking photograph with a pop-up
that directly labeled him "GUILTY." These are not just two different ways
of saying the same thing, as the State suggests. While the oral statement
told the jurors that they could expect the prosecutor to ask for a guilty
verdict at the end of the trial, the PowerPoint slide directly declared
Watters guilty.
The prosecution could not orally declare the defendant guilty
in opening statement. Doing so would amount to improper argument and
the expression of personal opinion on the defendant's guilt, which is
forbidden. See Collier v. State, 101 Nev. 473, 480,
705 P.2d 1126, 1130
(1985) (a prosecutor should not express her personal opinion on the
defendant's guilt; "[My stepping out of the prosecutor's role, which is to
seek justice, and by invoking the authority of. . . her own supposedly
greater experience and knowledge, a prosecutor invites undue jury
reliance on the conclusions personally endorsed by the prosecuting
attorney" (citation omitted)). Making this improper argument "visually
through use of slides showing [Wafters's] battered face and
superimposing. . . capital letters" spelling out GUILTY "is even more
prejudicial" than doing so orally. Glasmann, 286 P.3d at 680 (emphasis
added). "[W]ith visual information, people believe what they see and will
not step back and critically examine the conclusions they reach, unless
they are explicitly motivated to do so. Thus, the alacrity by which we
process and make decisions based on visual information conflicts with a
SUPREME COURT
OF
NEVADA
7
(0) 1947A
bedrock principle of our legal system—that reasoned deliberation is
necessary for a fair justice system." Id. (quoting Lucille A. Jewell,
Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain
a Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J.
237, 293 (2010)); see Mary Susan Weldon & Henry L. Roediger, III,
Altering Retrieval Demands Reverses the Picture Superiority Effect, 15
Memory & Cognition 269, 269 (1987) (research shows that pictures are
typically remembered better than words). We therefore conclude that it
was error, and an abuse of discretion, for the district court to allow the
prosecutor's booking-photo slide sequence in opening statement.
The error undermined the presumption of innocence, see NRS
175.191; State v. Teeter, 65 Nev. 584, 642,
200 P.2d 657, 685 (1948),
overruled on other grounds by In re Wheeler, 81 Nev. 495, 499,
406 P.2d
713, 716 (1965), which is a basic component of "[the] fair trial" guaranteed
by the Fourteenth Amendment "under our system of criminal justice."
Williams, 425 U.S. at 503. Courtroom practices that undermine the
presumption of innocence are unconstitutional unless they serve an
essential state interest. Flynn, 475 U.S. at 568. A courtroom practice
undermines the presumption of innocence when "an unacceptable risk is
presented of impermissible factors coming into play" in the jury's
evaluation of the evidence. Williams, 425 U.S. at 505. Routinely allowing
prosecutors to use booking photos with "guilty" written across them during
opening statement does not serve an essential state interest and poses an
unacceptable risk that the jury's mindset will be tainted and the fairness
of its fact-finding function impaired. See Arizona v. Washington, 434 U.S.
497, 512 (1978) ("An improper opening statement unquestionably tends to
frustrate the public interest in having a just judgment reached by an
SUPREME COURT
OF
NEVADA
8
(0) 1947A
impartial tribunal. Indeed, such statements create a risk, often not
present in the individual juror bias situation, that the entire panel may be
tainted." (footnote omitted)).
A presumption-of-innocence error is of constitutional
dimension, so we review for harmless error under the Chapman v.
California standard and will reverse if the State fails to prove, beyond a
reasonable doubt, that the error did not contribute to the verdict obtained.
386 U.S. 18, 24 (1967); see also Valdez v. State,
124 Nev. 1172, 1188-89,
196 P.3d 465, 476 (2008).
Here, the State argues that the error was harmless because
the PowerPoint was not admitted into evidence; the jury was instructed on
the presumption of innocence at the beginning and end of trial; the slides
were displayed only briefly; and the evidence of Watters's guilt was
overwhelming. All this may be true. But in the presumption-ofinnocence context, "[t]he actual impact of a particular practice on the
judgment of jurors cannot always be fully determined," and the Supreme
Court "has left no doubt that the probability of deleterious effects on
fundamental rights calls for close judicial scrutiny." Williams, 425 U.S. at
504.
Routinely allowing prosecutors to use PowerPoint slides
during opening that label the defendant guilty carries a genuine risk of
unfair bias, cf. Washington, 434 U.S. at 512, in part because "[h]ighly
prejudicial images may sway a jury in ways that words cannot."
Glasmann, 286 P.3d at 679. If the district court had promptly ordered the
prosecution to remove the booking-photo slide sequence and given the jury
an immediate curative instruction, as in Dolphy, 707 S.E.2d at 57, this
would be a much different case. Cf. United States v. Dougherty, 810
SUPREME COURT
OF
NEVADA
9
(0) I947A
F.2d 763, 768 (8th Cir. 1987) (a curative instruction that adequately
identified the prosecutor's improper comment during opening statement
and instructed the jury to disregard it was sufficient to mitigate
prejudice); but see Washington, 434 U.S. at 513 (instructing the jury to
disregard an improper opening statement "will not necessarily remove the
risk of bias that may be created by improper argument"). But here, the
court had already deemed the slide sequence permissible. Hence, the
slides remained up and no instruction to disregard them was given. And
the presumption-of-innocence instructions the jury received had no
connection to the booking-photo slide sequence. Watters's principal
defense was that he was not the man who stole the cars, just someone the
police happened to find who matched the suspect's description whose face
had been bloodied, not by an airbag deploying, but by a police dog.
Whether a reasonable jury would have found in Watters's favor based on
this defense is not for this court to say. But the State has not shown
beyond a reasonable doubt that the booking-photo slide sequence did not
affect the jury's determination of Watters's guilt. This requires that we
reverse and remand this case for a new trial.
SUPREME COURT
OF
NEVADA
10
(0) 1947A
PARRAGUIRRE, J., concurring:
I concur in the result only.
Parraguirre
SUPREME COURT
OF
NEVADA
(0) 1947A
