Blue v. State, 31069

• Citation: 250 Ind. 249, 235 N.E.2d 471
• Case Date: April 09, 1968
• Court: Supreme Court of Indiana

Page 471

235 N.E.2d 471

250 Ind. 249, 30 A.L.R.3d 902

George E. BLUE, Appellant, v. STATE of Indiana, Appellee.

STATE of Indiana on the relation of Joe MARTINEZ, Appellant, v. E. J. WILTROUT, as Special Judge, Lake County Criminal

Court, Appellee.

No. 31069.

Supreme Court of Indiana.

April 9, 1968.

Bernard M. Tetek, Gerald N. Svetanoff, Tetek & Svetanoff, Gary, of counsel, for appellants.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

LEWIS, Chief Justice.

This is an appeal from the convictions of the appellants, by separate jury verdicts, of the crime of Robbery.

Subsequent to the trial, appellant Martinez sought unsuccessfully to have a pauper appeal counsel appointed. Appellant Martinez then filed a petition in this Court for a Writ compelling the Lake County Criminal Court to appoint him such counsel. On August 5, 1966, this Court ordered the Lake County Court to prepare a transcript of the lower court proceedings and appoint counsel in order that appellant Martinez might perfect his appeal. (State of Indiana, ex rel. Joe Martinez v. E. J. Wiltrout, as Special Judge, Lake County Criminal Court (August 5, 1966)) Whereupon, appellant Martinez's appeal was consolidated with that of appellant Blue's.

The affidavit charged that on November 23, 1960, the appellants robbed a grocery store in Gary, Indiana. The manager and a cashier both positively identified the appellants as the parties who had robbed them. The identifications were made from police 'mug shots'; in a police line-up; and finally at the trial by pointing out the appellants.

On appeal, the appellants raise four (4) assigned errors, the first of which is as follows:

That the Trial Court erred in permitting the State to introduce 'mug shots' of appellants into evidence at the trial.

The photographs in question were the typical police pictures depicting the subject in three (3) classic poses: a full-length standing view, a sitting close-up facial view, and a sitting, side-profile view. In the photographs, the subjects were wearing signs which had inscribed on them: Gary Indiana Police Department, the subject's number, and the date the photograph was taken. State's exhibit number 1, the photograph depicting appellant Blue, was taken on December 10, 1960, at the time of his arrest for the felony now at issue. State's exhibit number 2, depicting appellant Martinez, however, was taken on April 6, 1958, in connection with a prior arrest. These photographs were introduced into evidence, over objection, during the testimony of a Gary, Indiana, policeman. He testified that the store manager and cashier had identified the appellants from these photographs.

'It is well established that photographs of persons, things, and places, when duly verified and shown by extrinsic evidence to be faithful representations of the subjects as of the time in question, are admissible in evidence, both in civil and criminal cases, as aids to the jury in arriving at an understanding of the evidence, * * *' 29 Am.Jur.2d, Evidence, § 785, p. 856.

However, this is not to say that photographs are always admissible; but to the contrary, they are subject to the same exclusionary rules of evidence as are other items sought to be introduced. The pictures must be relevant to the issues at trial and may not be unduly prejudicial.

As to State's exhibit number 2, the law is well settled that the criminal record of a defendant may not be introduced into evidence at trial unless the defendant takes the stand or otherwise places his character in issue. Wells v. State (1959), 239 Ind. 415, 158 N.E.2d 256. Appellant Martinez, in the case at bar, did not take the stand. Therefore, evidence tending to establish his criminal record is irrelevant and prejudicial.

In United States v. Harman (1965), 4 Cir., 349 F.2d 316, a federal agent introduced 'mug shots' into evidence under the following circumstances. The appellant was on trial for operating an illegal distillery. An agent of the Federal Alcohol and Tobacco Tax Division had been assigned to investigate the appellant's activities prior to his arrest for this offense. In the agent's assignment file there was a 'mug shot' that had been taken during appellant's previous stay in a Federal Penitentiary which the agent was to use for purposes of identification during the investigation. The agent ultimately discovered where the still was being operated and descended upon it with two other agents in a raid. He caught only a fleeting glimpse of the appellant before he escaped, yet at trial he identified him positively. The agent stated that he had seen the appellant on three occasions prior to the raid.

This 'mug shot' was introduced at trial over strenuous objection and the jurors were allowed to examine it as well as to carry it into the jurors' deliberation room. This 'mug shot' was of the usual type with the classic three (3) poses. At the bottom was printed, 'USPA 74040 11--5--53'

Also, it is important that in Harman's trial, he did not take the stand or otherwise put his character in issue. Therefore, evidence of Harman's criminal record was not admissible.

Under these circumstances the United States Court of Appeals, Fourth Circuit, found the introduction of this 'mug shot' into evidence was reversible error, and made the following statements:

'Of course, there are many instances where pictures of persons, places and things are clearly admissible in evidence, and sometimes quite helpful. However, this is not one of those instances. Since Harman did not testify or put his character in issue, of course, any evidence of a previous conviction would have been inadmissible. * * *'

'* * * It would seem that the inscription on one of the pictures shows that it was taken at the United States Prison at Atlanta, gives the prisoner's number and the date on which the picture was taken. It is doubtful that the inscription on the picture conveyed all this information to the jury. However, the conclusion seems inescapable that the pictures, taken together with Bodine's testimony, must have conveyed to the jury the information that Harman had been previously convicted and had served a prison sentence.' United States v. Harman, supra.

Another Federal decision on this point is Barnes v. United States (1966), 124 U.S.App.D.C. 318, 365 F.2d 509. It involved a prosecution for housebreaking, grand larceny and simple assault. In this case a 'mug shot' was allowed into evidence over objection. It was a 'typical 'mug...