U.S. v. Stearns

• Decision Date: 02 March 1977
• Docket Number: No. 75-3011,75-3011
• Citation: 550 F.2d 1167
• Parties: 1 Fed. R. Evid. Serv. 685 UNITED STATES of America, Plaintiff-Appellee, v. Stephanie K. STEARNS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1167

550 F.2d 1167

1 Fed. R. Evid. Serv. 685

UNITED STATES of America, Plaintiff-Appellee, v. Stephanie K. STEARNS, Defendant-Appellant.

No. 75-3011.

United States Court of Appeals, Ninth Circuit.

March 2, 1977.

Rehearing Denied March 29, 1977.

Winston Mirikitani, argued, Honolulu, Hawaii, for defendant-appellant.

Harold M. Fong, U. S. Atty., Wm. J. Eggers, Asst. U. S. Atty., argued, Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before BROWNING, TRASK, and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

Stephanie Stearns was convicted, after a jury trial, on two counts of theft of personal property within the special maritime and territorial jurisdiction of the United States, violations of 18 U.S.C. § 661, and on one count of transporting stolen property in interstate and foreign commerce, a violation of 18 U.S.C. § 2314. On appeal she contends that the district court erred both in admitting certain photographs and in denying a motion to consolidate the three counts. We affirm.

The principal question on this appeal is whether the prosecution established a sufficient foundation for the admission at trial of an exhibit consisting of five photographs. To understand the significance of these photographs and the foundation problems they present, we must recount the voyages of two sailing vessels, the Iola and the Sea Wind, and describe their encounter at Palmyra, an uninhabited island in the Pacific about one thousand miles south of Hawaii.

The Iola, a 30-foot vessel, arrived in Palmyra harbor from Hawaii on June 25 or 26, 1974. The channel leading into the lagoon on Palmyra is narrow and difficult to navigate. The Iola, which had a broken motor, had to be towed through the channel by dinghies from two ships already anchored in the lagoon. The persons sailing on the Iola were the defendant Stephanie Stearns and one Buck Walker (alias Roy Allen), the Iola's owner.

Apparently Stearns' and Walker's voyage from Hawaii had been an arduous one. It is doubtful whether the Iola was sufficiently seaworthy either for a return voyage to Hawaii or for a trip to Fanning Island, 175 miles further south and the nearest available place to obtain equipment and supplies. Stearns and Walker apparently intended to remain at Palmyra until friends arrived on another boat. The Iola had meagre supplies, and Stearns and Walker found it hard to adjust to a diet of coconut and fish. They tried to grow vegetables, with little success. One witness testified that Stearns told him she and Walker had ten dollars and some equipment, which she offered to exchange for food.

On July 1, the Sea Wind dropped anchor in the lagoon at Palmyra, where the Iola and other boats were located. The Sea Wind, a ketch 37 1/2 feet long, equipped with auxiliary engines, stocked with abundant food and stores, and fitted with a complete tool shop, was owned and sailed by a Mr. Graham, who, with his wife, was on a cruise of the South Pacific. The Grahams had spent over two years planning the trip and provisioning the Sea Wind.

In late August 1974, all other vessels had departed from Palmyra, and only the Iola and the Sea Wind remained at the island. The Grahams had a prearranged pattern of radio contact with an operator in Hawaii. The operator's last radio conversation with Mr. Graham took place on August 28, 1974. All attempts to make further radio contact with the Sea Wind proved unsuccessful. The Grahams had mysteriously disappeared. They have never been found.

Three months later, the Sea Wind was recognized in a Honolulu yacht harbor. Stearns and Walker were now its crew. The ketch had been reregistered under another name and had been partially repainted. Stearns was charged with theft of the Sea Wind, theft of certain personal property of the Grahams aboard the Sea Wind, and transportation of stolen property in interstate commerce.

Stearns contended that the Grahams disappeared while the Sea Wind remained anchored in Palmyra harbor, and that after a search she and Walker had found the Grahams' dinghy overturned on a beach of the lagoon. She stated that she and Walker sailed the Sea Wind to Hawaii in order to protect it from vandalism, and that she intended to contact a relative of the Grahams to deliver possession of the ship. Stearns claimed that she and Walker attempted to tow the Iola behind the Sea Wind, but that the Iola stranded on a reef and sank as it left the narrow channel leading from the lagoon to the ocean.

The prosecution offered a different explanation. According to the Government, Stearns and Walker intended to steal the Sea Wind. To facilitate their crime they deliberately sank the Iola, a leaky boat they no longer needed, in the depths of the ocean away from the island. In support of its theory, the Government produced the Iola's hatch cover, which had been recovered from a camp site on Palmyra.

The Government further offered, as part of its case in chief, the five photographs in dispute here. Each photograph shows a blue and white sailboat, not in tow, but under full sail at open sea. In three photographs an unidentified landfall is some miles distant in the background. A fourth photograph is taken from a second vessel: part of the second ship's deck and rigging is in the foreground; attached to its gunwales is a red protective net; there is open sea between this vessel and the blue and white craft sailing some yards away.

Testimony during the prosecution's case established that the blue and white craft in the five photographs is the Iola. The prosecution also introduced evidence showing that the second vessel in the foreground of the fourth photograph is the Sea Wind. The rather distinctive red net visible in the foreground of this picture is the same net that was on the gunwales of the Sea Wind when it returned from Palmyra and dropped anchor in the Honolulu yacht harbor. The Government contended at trial that all five photographs were taken from the Sea Wind while Stearns and Walker were returning to Hawaii. If the jury excepted the Government's version, the pictures of the Iola under full sail on the open sea, not far from the Sea Wind, severely damaged, if not destroyed, Stearns' claim that the Iola became stranded while under tow and sank just outside the channel entrance.

A stipulation by the parties as to chain of custody and other evidence introduced at trial established that Stearns left the film for developing at a drug store in Honolulu. The prints, until they were relinquished to the authorities, were in the continuous custody of Stearns' friends. Before Stearns' arrest, one friend picked the prints up at the drug store; after the arrest, another friend brought the photographs to the jail where Stearns was being detained. There the photographs were taken by a jailer and held for evidence.

The defense objected to introduction of the photographs, contending that the foundation was insufficient to establish the time and place the photographs were made. That argument is renewed on appeal.

A photograph may be distorted, and thus inadmissible as a technically inaccurate representation of the scene photographed. A picture may also be inadmissible, although technically accurate, because it portrays a scene that is materially different from a scene that is relevant to one of the issues at trial. Before admitting a photograph into evidence, the trial court must find that the dangers of such distortion or wrong emphasis are sufficiently remote so that the trier of fact may consider the photographs for the purposes offered. These are principally questions of authentication. See Fed.R.Evid. 901 and notes of the Advisory Committee on Proposed Rules thereunder. ¹ Resolution of these matters determines the purposes, if any, for which the jury may consider photographs. If the preliminary showing of authenticity is weak, it may become necessary to instruct the jury that it may consider the photograph only for limited purposes. See C. McCormick, Evidence § 59 (1954); Fed.R.Evid. 105. Authentication thus establishes the parameters of relevance.

In this case there was little direct testimony concerning the technical accuracy of the photographs at issue. It was shown only that the prints were ordered and paid for at Stearns' direction, and that until they reached the hands of the authorities, they were in the possession of persons in privity with Stearns. There is no reason to believe, however, and Stearns does not claim, that the Government deliberately tampered with the photographs. Furthermore, "(t)here is a presumption of regularity in the handling of exhibits by public officials." United States v. Coades, 549 F.2d 1303, at 1306 (9th Cir., Feb. 3, 1977). The evidence was sufficient to establish as a threshold matter both that the photographic process had not been tampered with and that the photographs themselves were not distorted. Given the purposes for which these photographs were offered, precise technical details concerning camera settings, film type, and development process were not necessary as a foundation...