People v Anderson
2017 NY Slip Op 02589 [29 NY3d 69]
Decided on April 4, 2017
Issue:
Defendant Claims Ineffective Assistance of Counsel
Whether defendant Anderson received ineffective assistance of counsel as counsel failed to object to the prosecutor’s use of PowerPoint slides during summation, where the slides reiterated the evidence and the People’s argument.
Holding:
PowerPoint Slides Permitted, Counsel Not Ineffective
The NY Court of Appeals held that defendant did not receive ineffective assistance—counsel objected to one of the PowerPoint slides, and the vast majority of the slides were not objectionable.
Facts:
According to the People’s proof at trial, defendant Anderson approached the victim in the street and shot him twice in the abdomen. When the victim turned around and tried to flee, defendant shot him two more times in the back. During summation, the prosecution employed a PowerPoint presentation that included pictures of exhibits with captions or numbers inserted to highlight the relevant portion of those exhibits. Defendant was convicted of attempted murder in the second degree and criminal possession of a weapon in the second degree. Defendant argues that he was deprived of a fair trial by the prosecutor’s use of the PowerPoint slides, and that defense counsel was ineffective for failing to object to the presentation. The Appellate Division rejected defendant’s challenges to his conviction and affirmed the judgment.
Analysis:
PowerPoint Stayed Within ‘Four Corners of the Evidence’
In People v Ashwal, (39 NY2d 105 [1976]), the Court of Appeals explained that it is “fundamental” that counsel stay within “the four corners of the evidence” during summation. The Prosecutor “may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferable from the evidence.” The Court of Appeals held that the PowerPoint slides used in this case were consistent with these principles, as “slides depicting an already admitted photograph, with captions accurately tracking prior…testimony, might reasonably be regarded as relevant and fair…commentary on the…evidence and not simply an appeal to the jury’s emotions” (People v Santiago, 22 NY3d 740, 751 [2014]).
The Court explained that a visual demonstration is evaluated in the same manner as an oral argument as long as there is a clear delineation between argument and evidence. Defendant argues that the superimposed text used in the PowerPoint altered the evidence, and that text boxes placed over defendant’s arrest photograph were arranged to make his face a target. But the Court of Appeals rejected defendant’s argument that trial exhibits in a PowerPoint presentation may not have any written comments or arguments superimposed on the slides. The prosecutor in this case used the slides properly, by adding captions and markings consistent with the trial evidence and the fair inferences to be drawn from that evidence.
When the superimposed text is clearly differentiated from the trial exhibits, and therefore could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. Furthermore, the court properly instructed the jury at trial that what lawyers say during summations is not evidence, and that the jury must consider only the evidence when finding the facts. The jury was told that the physical evidence would be made available to them, while the slides would not.
Given that the use of the PowerPoint slides was permissible, and the added text accurately reflected the witnesses’ testimonies and the fair inferences to be drawn from the evidence, counsel was not ineffective for failing to object. The order of the Appellate Division was affirmed.