by Richard Resch
The Washington Court of Appeals, Division I determined that the use of specific PowerPoint slides intended to establish the characters of defendant and victim and their actions in conformity therewith amounted to prosecutorial misconduct. The misconduct was both improper and prejudicial. Therefore, it warranted the reversal of the defendant’s murder conviction and a new trial.
Encarnacion Salas fatally stabbed his friend Jesus Lopez on October 24, 2014. Lopez had 15 knife wounds on his body. Salas claimed that it was self-defense. He told investigators that after drinking for a while, Lopez attempted to grab his genital area, and when Salas rebuffed his advance, Lopez attacked him with a knife. Salas managed to pry the knife from Lopez. He kept attacking, so Salas had to use the knife to defend himself.
The prosecutor rejected Salas’ claim of self-defense and charged him with murder. According to its theory, Salas attacked and killed Lopez “because he was conflicted about his sexuality.” He went to trial in October 2015.
During its closing argument, the prosecution showed the jury a 22-slide PowerPoint presentation that had not been seen by either the court or defense prior to being shown to the jury. The first slide contained two pictures side by side. On the left was a mugshot-like picture of Salas’ face. On the other side was a picture of Lopez crouching down and smiling in front of three life-size Smurf characters.
The caption above Salas’ picture read: “EJ Salas: 5’11”, Football player, fighter, outdoorsman.” The caption above Lopez’s picture read: “Jesse Lopez: 5’5.5”, Band leader, saxophone player, customer service representative.”
The last PowerPoint slide showed a picture of Lopez with his head resting on the shoulder of Salas’ aunt while riding a Ferris wheel. The defense objected to the PowerPoint presentation, but the trial court overruled the objection, allowing the jury to see the slides.
Salas was convicted of second-degree murder. He was sentenced to 244 months in prison. He appealed the judgment and sentence, arguing that the PowerPoint presentation constituted prosecutorial misconduct that deprived him of a fair trial.
The Court of Appeals began its analysis by instructing that applicable case law, In re Pers. Restraint of Glasmann, 286 P.3d 673 (Wash. 2012), State v. Walker, 341 P.3d 976 (Wash. Ct. App. 2014), prohibits the use of slide shows “to inflame passion and prejudice.” The Court explained, “PowerPoint slides should not be used to communicate to the jury a covert message that would be improper if spoken aloud.”
That is precisely what the prosecution did in this case, according to the Court. The Court determined that the purpose of the first slide was to reinforce high school stereotypes—the aggressive jock versus the meek band geek. The juxtaposition of the pictures and captions communicated a message to the jury that the prosecution could not utter: “Salas was by nature an aggressive and intimidating person, and therefore had no reason to fear Lopez, who by nature was childlike and submissive.” In effect, the prosecution used the slide to prove their respective characters and show action in conformity therewith, which is improper under Washington Evidence Rule 404(b).
Similarly, the last slide was used to reinforcement the message that Lopez “was a sweet, deferential person, and it would have been out of character for him to attack Salas with a knife.” Accordingly, the use of the first and last slides during the closing argument constituted prosecutorial misconduct.
But prosecutorial misconduct does not necessarily warrant reversal of a conviction; reversal is required only if the defendant demonstrates prejudice. That standard is met when “the prosecutor’s comments deliberately appealed to the jury’s passion and prejudice and encouraged the jury to base the verdict on the improper argument rather than on properly admitted evidence.” The Court concluded that the slides did just that. They were designed to improperly “override evidence that Salas killed Lopez either recklessly or out of a reasonable fear for his own safety.” They visually made the point that “Salas was dangerous, while Lopez was meek.” Consequently, the Court of Appeals reversed Salas’ murder conviction and remanded for a new trial.
The Salas decision should signal to prosecutors that PowerPoint slides and similar multimedia tools do not have to be blatantly ham-handed and prejudicial like those used in Glasmann to deprive the defendant of his or her right to a fair trial. In Glasmann, the prosecution showed the jury PowerPoint slides of the defendant’s bloody and disheveled mugshot with the word “GUILTY” in red letters superimposed over the picture. The Salas Court acknowledged that the slides used in the case were far more subdued than those in Glasmann, but they nevertheless denied the defendant his right to a fair trial.
See: State v. Salas, 2018 Wash. App. LEXIS 24.
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State v. Salas
|Cite||2018 Wash. App. LEXIS 24|