The circuit court properly exercised its discretion in allowing the deliberating jury to have a bag of marijuana that had been admitted into evidence because it aided the jury in assessing the credibility of the witnesses’ testimony.
When police approached Gilmer to talk to him about a traffic matter that occurred several days earlier Gilmer ran away on foot. The officers said they saw Gilmer discard a black plastic bag and that they could smell the odor of marijuana while chasing Gilmer. After catching Gilmer and retracing their steps police found a black plastic bag with 135 grams of marijuana. While Gilmer had a half-gram of marijuana in his pocket, he denied having the black bag. (¶¶2-8).
The State argued the amount and quality of the marijuana made it credible the police smelled marijuana during the chase, and suggested in closing the jury could ask for the bag to smell for themselves during deliberations. (¶¶9-10). The jury did just that, and the judge let the bailiff take it to the jury over Gilmer’s objection that there was no evidence that the smell of the bag was the same as it was when police found it. (¶12).
Whether evidence should be sent to the jury during deliberations is a discretionary decision guided by three considerations: (1) whether the exhibit will aid the jury in proper consideration of the case; (2) whether a party will be unduly prejudiced by submission of the exhibit; and (3) whether the exhibit could be subjected to improper use by the jury. State v. Hines, 173 Wis. 2d 850, 858, 496 N.W.2d 720 (Ct. App. 1993). The trial judge properly exercised his discretion because allowing the jury to examine the marijuana aided their assessment of the officers’ testimony:
¶19 Contrary to what Gilmer argues, in the particular circumstances before us, there was no need to establish that the bag of marijuana smelled exactly the same on the day of the arrest as the day of trial. The point made by the testimony and the prosecutor’s argument was that there was a discernible smell coming from Gilmer, and that the smell came from the large bag of marijuana that Gilmer discarded while running from the police. Moreover, the jury did not require the very small bag—which contained less than one-percent of the weight of the large bag—to fairly evaluate the officers’ credibility. Given the facts of this particular case, the jury could use its common sense to determine whether the smell described by the officers would have come from the large bag containing over 100 grams of marijuana or the very small one containing less than one gram found on his person during arrest.
¶20 In addition, we disagree with Gilmer’s contention that allowing the marijuana to go to the jury room produced “off-the-record evidence” that he did not have an opportunity to cross-examine or rebut. …. As the State points out, … it is highly unlikely that the evidence was improperly manipulated because it was in a sealed bag and was accompanied by the bailiff. There is no evidence that the jury took the marijuana out of the bag or did anything inappropriate with it. As for Gilmer’s suspicion that the jury may have smelled the bag from different locations within the jury room, that, as we have already explained, was precisely the point of allowing the bag to go back to the jury: to validate (or invalidate) the officers’ testimony about it. ….