397 N.E.2d 1012 (Ind.App. 4 Dist. 1979), 3-379A85, Bergner v. State

Docket Nº:3-379A85.
Citation:397 N.E.2d 1012
Party Name:Lester BERGNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case Date:December 12, 1979
Court:Court of Appeals of Indiana
 
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Page 1012

397 N.E.2d 1012 (Ind.App. 4 Dist. 1979)

Lester BERGNER, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 3-379A85.

Court of Appeals of Indiana, Fourth District.

December 12, 1979

Page 1013

Paul J. Giorgi, P. C., Merrillville, for appellant-defendant.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee-plaintiff.

CHIPMAN, Judge.

Following a jury trial in the Lake Superior Court appellant Lester Bergner was convicted of sodomizing 1 his four-year old daughter. His appeal challenges the trial court's rulings on the admissibility of photographs depicting the act of fellatio and the applicability of the marital privilege to the testimony of his ex-wife. Appellant also argues the evidence was insufficient to support the verdict. We have extensively reviewed and researched these issues and affirm appellant's conviction.

FACTS

The principal evidence in this case consisted of State's Exhibits 1 and 2 which are photographs depicting the act of fellatio by a female child on an adult male. The photographs show the child lying between the man's legs with her face, head, and upper body clearly visible. Only the lower body of the male from the chest to the knee can be seen, however. The man is partially clothed in a bathrobe.

In May, 1977 appellant's ex-wife, X, went to appellant's home to look for these photographs after having been told of their existence by appellant's son, W. Although appellant was not home at the time, X apparently searched the darkroom located in the home and discovered the photographs in a box on a shelf. The photographs were later turned over to Detective Mitchell of the Highland Police Department.

At trial X identified her four-year old daughter, Y, and appellant as the persons depicted in the photographs. Her identification of appellant was based upon her recognition of appellant's lower body, a hernia scar on his abdomen, and his bathrobe. She

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also was able to recognize a portion of the living room of the home they shared during their marriage. She established October 1976 as the approximate date the photographs were taken; Y's teenage brother had attempted to cut her hair shortly before and a distinctly unprofessional haircut resulted.

Detective Mitchell verified having received the photographs from X. He subsequently arrested appellant, and during booking procedures requested appellant lower his trousers far enough to reveal the hernia scar. Mitchell stated the scar he observed was "consistent with" the one depicted in the photographs.

Barry Mones was qualified as an expert photograph examiner for the F.B.I. His analysis of the photographs revealed they were "authentic and . . . not composites or altered." He also testified the photographs and their respective negatives were taken on Polaroid black and white film.

The only witness called by the defense was Carol Bergner, appellant's current wife. She noted a number of physical discrepancies between appellant and the male in the photographs and stated, in her opinion, the photographs were not of her husband.

At the close of the testimony the State moved to have appellant examined by a doctor, presumably to secure impartial identification evidence. The trial court denied this motion but suggested an even more novel procedure: the court ordered appellant to lower his pants and display his lower abdomen and thighs to the jury. Neither prosecution nor defense objected to this procedure which the trial judge characterized as "a rather unusual thing for the court to do." The jury convicted appellant of the crime of sodomy and this appeal followed.

ISSUES

I. Were two photographs erroneously admitted on improper foundation evidence where no witness testified the photographs were true and accurate representations of what they purported to depict?

II. Did the trial court err in permitting appellant's ex-wife to testify in violation of the marital privilege?

III. Was the evidence sufficient to support the verdict?

  1. PHOTOGRAPHIC EVIDENCE

    Whether the two photographs depicting the sexual act were properly admitted into evidence presents a novel question and a case of first impression for Indiana courts. Appellant argues the photographs were inadmissible because the State failed to establish the proper foundation for their admission as required by existing Indiana law. This assertion is patently correct, but the State contends the photographs were admissible under the so-called "silent witness theory" of photographic evidence and urges us to adopt this theory.

    1. CURRENT INDIANA LAW

      Indiana courts traditionally have stressed three requirements for the admission of photographic evidence. First, an adequate foundation must be laid. Our courts have consistently held this requires the testimony of a witness who can state the photograph is "a true and accurate representation of the things it is intended to depict." Wilson v. State, (1978) Ind., 374 N.E.2d 45; Boone v. State, (1978) Ind., 371 N.E.2d 708; Green v. State, (1976) 265 Ind. 16, 349 N.E.2d 147; Murry v. State, (1979) Ind.App., 385 N.E.2d 469. See McCurdy v. State, (1975) 263 Ind. 66, 324 N.E.2d 489 (photos properly excluded for failure to satisfy this requirement); Johnson v. State, (1972) 258 Ind. 648, 283 N.E.2d 532 (same).

      Relevancy is the second requirement for the admission of photographic evidence in Indiana. Like all evidence, a photograph must meet the usual relevancy standard, i. e., it must tend to prove or disprove a material fact. Smith v. Crouse-Hinds Company, (1978) Ind.App., 373 N.E.2d 923. In applying this standard to photographic evidence, our courts ask whether a witness would be permitted to testify as to the subject matter portrayed in the photograph. Simpson v. State, (1978) Ind., 381 N.E.2d 1229; Crane v. State, (1978) Ind., 380

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      N.E.2d 89. If so, the photograph is deemed relevant.

      Finally, some Indiana cases require the photographs aid jurors' understanding of other evidence. See Whitfield v. State, (1977) 266 Ind. 629, 366 N.E.2d 173; Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482; McPherson v. State, (1978) Ind.App., 383 N.E.2d 403. Whether this is truly a requirement for the admission of photographs in Indiana is not totally clear. Some cases seem to elevate it to the level of a requirement, McPherson, supra, while others merely recite it as a part of the relevancy test, Whitfield, supra.

    2. THE SILENT WITNESS THEORY

      Although all three requirements for the admission of photographic evidence are important, in this case we are singularly concerned with the foundation requirement. Indiana's approach to the admission of photographs, as guided by the current foundation requirement, falls within what has been characterized as the "pictorial testimony theory" of photographic evidence. III J. Wigmore, Evidence § 790 (Chadbourn rev. 1970). This theory categorizes photographs with maps, models and diagrams, and thus treats photographs purely as demonstrative evidence. As such, a photograph is not evidence in itself, but is used merely as a nonverbal method of expressing a witness' testimony and is admissible only when a witness can testify it is a true and accurate representation of a scene personally viewed by that witness. McCormick, Evidence § 214 (1972); 2 C. Scott, Photographic Evidence § 1001 (1969).

      The "silent witness theory" for the admission of photographic evidence permits the use of photographs at trial as Substantive evidence, as opposed to merely demonstrative evidence. Thus, under the silent witness theory there is no need for a witness to testify a photograph accurately represents what he or she observed; the photograph "speaks for itself." III J. Wigmore, Evidence § 790 (Chadbourn rev. 1970). The theory may be best explained by examining some of the contexts in which it is commonly applied.

      One of the most frequent, and often unintentional, utilizations of the silent witness theory occurs when X-rays are admitted into evidence. Obviously, no witness can testify he or she saw what an X-ray depicts, thus rendering the pictorial testimony theory logically inapplicable. 2 3 C. Scott, Photographic Evidence § 1262 (1969). Nevertheless, every jurisdiction admits X-ray photographs as substantive evidence upon a sufficient showing of authentication. This usually entails the establishment of the reliability and trustworthiness of the X-ray machine, the operator or technician, the procedure used in exposing and processing the X-ray plate, and record keeping techniques so as to establish the identity and condition of the patient. See, e. g., Slow Development Company v. Coulter, (1960) 88 Ariz. 122, 353 P.2d 890; Sinz v. Owens, (1949) 33 Cal.2d 749, 205 P.2d 3; Field, Uses and Limitations of X-ray Pictures as Evidence, 2 Forum 219 (1967).

      A context in which the silent witness theory has been expressly employed involves cases in which Regiscope photographs are introduced into evidence. A Regiscope is simply an automatic camera which takes a simultaneous picture of a check being offered for cashing and of the person presenting it. Regiscope photographs are often admitted as substantive evidence in forgery prosecutions despite the inability of the clerk who cashed the check to remember the particular transaction or individual. Typically, the courts require a showing of authenticity which includes an identification of the defendant as the individual depicted and a showing of the proper functioning of the camera and processing of

      Page 1016

      the photograph. United States v. Gray, (1976 8th Cir.) 531 F.2d 933; Barker v. People, (1965) 158 Colo. 381, 407 P.2d 34; Sisk v. State, (1964) 236 Md. 589, 204 A.2d 684 (expressly adopting silent witness theory for first time); State v....

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