Clerkley v. City of Oklahoma City, Oklahoma et al

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LORENZO CLERKLEY, JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-20-465-G
)
CITY OF OKLAHOMA CITY, )
OKLAHOMA, et al., )
)
Defendants. )
ORDER
Now before the Court is Defendants’ Amended Motion (Doc. No. 143), seeking
leave to present certain air guns and an actual firearm as demonstrative exhibits at trial.
Plaintiff Lorenzo Clerkley, Jr. has filed a written Objection (Doc. No. 148).
It is undisputed that BB guns were present at the scene of the incident to be
considered at trial and that four BB guns were later recovered from that scene. In the
Amended Motion, Defendants City of Oklahoma City, Oklahoma, and Kyle Holcomb ask
that the Court “allow the jury to view the TDP 45 .177 cal. BB pistol and one of the Glock
19 BB guns recovered at the scene.” Defs.’ Am. Mot. at 3. Defendants also request that
the jury be allowed to view “an actual Glock 19” to be able to “observe how similar” the
BB guns and the Glock firearm “are in appearance.” Id.
Plaintiff objects, noting the alleged lack of any video or physical evidence
supporting the proposition that Plaintiff himself was wielding a BB gun at the time of the
incident. See Pl.’s Obj. at 3. Plaintiff further argues that such demonstratives are
unnecessary, that Defendants’ request is untimely, and that admission is precluded under
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Federal Rule of Evidence 403 because the probative value of the proposed demonstrative
evidence “is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, . . . or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403; see Pl.’s Obj. at 4-5.
“[I]t is within the discretion of the Trial Court, absent abuse working to the clear
prejudice of the [opposing party], to permit the display of demonstrative or illustrative
exhibits admitted in evidence.” United States v. Downen, 496 F.2d 314, 320 (10th Cir.
1974). Demonstrative evidence is “[p]hysical evidence that one can see and inspect . . .
and that, while of probative value and usu[ally] offered to clarify testimony, does not play
a direct part in the incident in question.” Black’s Law Dictionary (12th ed. 2024).
Demonstrative aids may be effective in illustrating relevant information to a
jury, assuming a proper foundation is laid. In assessing foundation in this
context, courts consider (among other things) whether the proffered
demonstrative exhibit fairly and accurately summarizes previously admitted
competent evidence.
Dahlberg v. MCT Transp., LLC, 571 F. App’x 641, 647 (10th Cir. 2014) (alteration and
internal quotation marks omitted). “Any and all proffered evidence (demonstrative or not)
is admitted or excluded based on the same rules of evidence.” Id.
With respect to the two proffered BB guns, the Court concludes that they may
properly be admitted for demonstrative purposes. Items that were present at the scene are
reasonably likely to “illustrat[e] relevant information to [the] jury” and to assist the jury in
evaluating the testimony and other evidence regarding the incident. Dahlberg, 571 F.
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App’x at 647. 1 Assuming proper authentication, the Court does not agree that the
presentation of such limited evidence is needlessly cumulative or that allowing the jury to
view the actual BB guns as well as the photographs of them will result in “unfair prejudice”
to Plaintiff. Fed. R. Evid. 403. And Defendants shall address Plaintiff’s untimeliness
concerns by permitting Plaintiff to inspect the BB guns prior to trial. See Pl.’s Obj. at 4.
As to the Glock 19 pistol, Defendants represent that the BB guns recovered at the
scene were imitation Glock guns, manufactured and marketed to look like this specific
“real” gun. Defs.’ Am. Mot. at 5. The Court agrees with Defendants that, if there is
credible evidence that Defendant Holcomb observed Plaintiff holding what turned out to
be one of the BB guns recovered at the scene, then viewing a Glock 19 pistol may assist
the jury in understanding the similarity between the recovered BB guns and an actual Glock
19 pistol. Specifically, allowing a comparison of the recovered BB guns and an actual
Glock 19 pistol could assist the jury in assessing the totality of the circumstances
confronting Defendant Holcomb, including whether a reasonable officer would have
believed that Plaintiff posed a danger warranting the force used by Defendant Holcomb.
The Court agrees with Plaintiff, however, that presentation of an actual Glock 19
pistol even for demonstrative purposes—a gun that indisputably was not possessed by
Plaintiff or Defendant Holcomb—presents a risk of unfair prejudice and confusion, one
that may outweigh any probative value of comparing that gun to a BB gun that might have
1 Although the parties have instead agreed to the admission of photographs of the BB guns
found at the scene, the actual recovered guns likely would be admissible as direct physical
evidence regarding the incident.
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been held by Plaintiff. See Defs.’ Am. Mot. at 3 n.4; Pl.’s Obj. at 5-6; see also Fed. R.
Evid. 403. The Court is not able to assess the extent of the probative value of such a
comparison without hearing the evidence at trial, including in particular Defendant
Holcomb’s testimony as to what he believed he had seen at the time he fired his own gun
at Plaintiff.
Accordingly, the Court will authorize Defendants’ counsel to take the steps
necessary to bring the referenced Glock 19 pistol into the courthouse for use as a
demonstrative exhibit but will not allow Defendants to show the pistol to the jury without
final approval by the Court. In other words, Defendants should be prepared to use the
Glock 19 pistol as a demonstrative exhibit and may, in light of the evidence presented at
trial, renew their request to present that pistol to the jury for viewing; however, until such
time as the Court expressly grants such a request, Defendants may not use the referenced
pistol as a demonstrative exhibit or otherwise present the firearm to the jury.
CONCLUSION
Accordingly, Defendants’ Amended Motion (Doc. No. 143) is GRANTED IN
PART and RESERVED IN PART. Defendants may present the two cited BB guns as
demonstrative exhibits at trial. The BB guns will be offered for viewing in the courtroom
but will not be permitted into the jury deliberation room. The Court reserves ruling on
whether any actual Glock 19 pistol may be used as a demonstrative exhibit at trial.
As to both the BB guns and the Glock 19 pistol, the Court authorizes Defendants to
bring such guns into the courthouse under the condition that Defendants’ counsel
coordinate with the United States Marshals and other courthouse staff and follow all
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instructions from those authorities for the handling of those weapons and for ensuring the
safety of the public. Failure to follow any such instruction will result in denial of
authorization to have the referenced guns in the courthouse or to use them as demonstrative
exhibits.
Defendants’ prior Motion (Doc. No. 142) is DENIED as moot.
IT IS SO ORDERED this 7th day of March, 2025.
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