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MILTON, DAMON ORLANDO

PD-0207-18 06/13/2018

“Did the Court of Appeals error in holding the trial court did not abuse its discretion in allowing the State to play a video of a lion attempting to maul an infant during its closing arguments?”

Milton was convicted of robbery. His extensive criminal history, all of which involved theft to some degree, was introduced at punishment. During its closing argument at punishment, and over objection, the State played a video of a lion trying aggressively to get at a child through the glass wall of a zoo enclosure.  The video had not been admitted into evidence. Milton was sentenced to 50 years’ confinement.

The court of appeals affirmed. It rejected the State’s argument that the video was a visual aid in summation of the evidence but held that “[t]he State’s argument” was a response to the theme of Milton’s closing plea for leniency and “[t]he State’s analogy” between the glass and jail was a plea for law enforcement.  It cautioned, however, that comparison of defendants to predatory animals is usually limited to cases involving murder or other violent behavior; “[t]he appropriateness of the same analogy in this case is tenuous given the nature of the crime” and rests upon Milton’s sustained record of reoffending upon release from confinement.

Milton argues in his petition that the court of appeals misconstrued his argument and was wrong anyway.  His complaint was not about the State’s argument but the playing of the video itself.  The video was not evidence, it was irrelevant, and the images were inherently prejudicial.  Moreover, the State assured the trial court that it was not going to equate Milton to the lion before doing just that.  On the merits of the court of appeals’s opinion, the video was not plausibly a response to argument because the State moved to have it admitted before Milton made his argument. Regardless, the playing of the video was not required for making a response or plea for law enforcement.

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