Groves v. State

• Decision Date: 13 December 1983
• Docket Number: No. 1182S439,1182S439
• Citation: 456 N.E.2d 720
• Parties: Mona Lisa GROVES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 720

456 N.E.2d 720

Mona Lisa GROVES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1182S439.

Supreme Court of Indiana.

Dec. 13, 1983.

David M. Shaw, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted, after a trial by jury, of forgery, Ind.Code Sec. 35-43-5-2 (Burns 1979), and of being an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1983), and was sentenced to thirty-five (35) years imprisonment. This direct appeal presents five issues for review, one of which compels us to reverse the judgment of the trial court and to order a new trial.

On February 28, 1981 Robin Rickard was socializing with several friends, including the Defendant, at a bar in Evansville, Indiana. Late in the evening, Ms. Rickard's billfold was discovered by a friend on the floor and was returned to her. Her purse had also been moved from where she had previously placed it on the floor next to her seat. Ms. Rickard later discovered that her driver's license and checkbook were missing from her billfold. Two days later, on March 2nd, a woman identifying herself as Robin Rickard, and possessing a driver's license issued in that name, cashed one of Ms. Rickard's checks at Wesselman's grocery store in Evansville. The woman who presented the check was not Robin Rickard, nor was the handwriting on the check or the signature thereon that of Robin Rickard. Other checks drawn upon the account of Robin Rickard had also been cashed, or an attempt had been made to cash them, at two other area stores on March 1st and 2nd, by a person who generally matched Defendant's appearance, and who possessed a driver's license issued in the name of Robin Rickard.

The clerk who had cashed the check at Wesselman's had also taken a regiscope photograph of the transaction. A regiscope is a camera with two lenses. If working properly, it takes two photographs simultaneously on one strip of film. The negative images, one of the check being negotiated and the other of the person tendering it, are recorded adjacent to each other, one above the other, on a strip of film upon which other such transactions are also recorded. If desired, positive prints of questioned transactions are made from the film strip.

The Defendant assigns error to the trial court's ruling admitting the regiscope photographs into evidence. She argues that a sufficient foundation had not been laid for its admission, in that there was no evidence that the photograph had been properly developed and printed, or that it had not been altered and that no witness had identified it as depicting the Defendant while she was in the act of cashing the forged check.

Photographs are usually admissible or not, depending upon whether a foundational requirement has been met evidencing that it fairly represents that which it purports to depict. They are not, under such circumstances, however, received as substantive evidence but are merely demonstrative, i.e. visual aids that assist in the presentation and interpretation of testimony. Here, however, it is readily discerned that the photograph was admitted as substantive evidence of the criminal transaction. That is, standing alone, it is evidence of guilt. Such evidence has become acceptable upon a basis that has become known as the "silent witness" theory. Because of the great weight of such evidence, it is obvious that it should be admitted only with great caution.

In Bergner v. State, (1979) Ind.App., 397 N.E.2d 1012, Judge Chipman authored an excellent opinion setting forth our rules respecting photographic evidence, as they existed at that time. He adopted the "silent witness" rule in admitting a photograph of the criminal episode of sodomy and held that no witness was required to testify that the photograph was an accurate representation, because it spoke for itself. We quoted extensively and with approval from that opinion in Torres v. State, (1982) Ind., 442 N.E.2d 1021, 1024-25.

Because of problems present in the case at bar not present in Torres, it is appropriate that we look further to the Bergner opinion.

"The foundation requirements for the admission of photographs as substantive evidence under the silent witness theory are obviously vastly different from the foundation required for demonstrative evidence. However, we feel it would be wrong to lay down extensive, absolute foundation requirements. Every photograph, the context in which it was taken, and its use at trial will be different in some respect. We therefore hold only that a strong showing of the photograph's competency and authenticity must be established. Whether a sufficiently strong foundation has been laid is left to the sound discretion of the trial court, reviewable only for abuse. However, we stress our use of the adjective 'strong'. Photographs tend to have great probative weight and should not be admitted unless the trial court is convinced of their competency and authenticity to a relative certainty.

"Despite our reluctance to formulate absolute standards for the admissibility of photographs as substantive evidence, we feel compelled to require proof the photograph has not been altered in any significant respect. This is necessary to avoid the dangers of misrepresentation or manufactured evidence which are possible through composite or retouched photographs. Additionally, we suggest a few non-mandatory guidelines for the admission of photographs under the silent witness theory. The date the photograph was taken should be established in certain cases, especially where the statute of limitations or the identity and alibi of the defendant are in question. In cases involving photographs taken by automatic cameras, such as Regiscopes or those found in banks, there should be evidence as to how and when the camera was loaded, how frequently the camera was activated, when the photographs were taken, and the processing and chain of custody of the film after its removal from the camera." (Emphasis added) (Citations omitted).

"In adopting the silent witness theory we are cognizant of two problems which arise when photographs are used as substantive evidence. The first involves the potential for distortive and misrepresentative images present in any photograph. The second concerns the inability to 'cross-examine' a...