Rivers v. United States

• Decision Date: 09 September 1959
• Docket Number: No. 16175.,16175.
• Citation: 270 F.2d 435
• Parties: Barbara Luella RIVERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F.2d 435 (1959)

Barbara Luella RIVERS, Appellant, v. UNITED STATES of America, Appellee.

No. 16175.

United States Court of Appeals Ninth Circuit.

September 9, 1959.

Warren C. Christianson, Sitka, Alaska, Albert White, Juneau, Alaska, Lawrence Speiser, San Francisco, Cal., for appellant.

Roger G. Connor, U. S. Atty., Jerome A. Moore, Juneau, Alaska, for appellee.

Before POPE, CHAMBERS and HAMLEY, Circuit Judges.

POPE, Circuit Judge.

The appellant was convicted of murder in the first degree after trial in the District Court for the Territory of Alaska, First Division. She was sentenced to life imprisonment.

At the time of the alleged homicide, the appellant and her husband, Paul Rivers, were living at the Alaskan Hotel at Sitka. Some time during the night of December 3, 1957, Paul Rivers died or was killed. Late on the evening of December 5, the Sitka police received a telephone call from some then unidentified woman who reported that a man had been murdered at the hotel and his body dismembered and that portions of the body were scattered on the beach. The informant declined to identify herself but it afterwards appeared that it was the defendant-appellant.

On receipt of the call the police investigated and found Paul Rivers' dismembered body, portions of it in the sea approximately one-half mile from the hotel, and portions upon the beach near the hotel. The head, upper torso, pelvis, arms and legs had apparently been thrown into the sea; the fingertips, toes, nose, lips, eyebrows and scalp were found at various places on the beach. Further investigation led to the apprehension of the defendant, and her indictment and conviction followed.

Numerous specifications of error are presented in two separate briefs by different attorneys representing the appellant. Although it is asserted in one of the briefs that the verdict is not supported by the evidence, it is plain to us that an abundance of evidence warranted the conviction. We have examined all of the specifications and find that but three of them merit consideration and these we here proceed to discuss.

During the course of the voir dire examination, counsel for the defendant asked a prospective juror: "Would you object to a Negro living in an apartment next to yours?" The court ruled the question improper. Because the defendant and her husband were Negroes appellant now contends that this ruling of the court was erroneous and prejudicial; that her counsel should have been permitted to make such an inquiry in an effort to ascertain the attitude of the jurors toward a Negro defendant.

Appellant relies on Aldridge v. United States, 283 U.S. 308, 314, 51 S.Ct. 470, 75 L.Ed. 1054, where a Negro on trial for the murder of a white man was held to be entitled to have jurors asked on voir dire whether they had any racial prejudice that would prevent a fair and impartial verdict.

For several reasons it cannot be said here that the trial court abused its discretion in refusing to allow this question to be asked. In the first place, nothing is shown in the record as to what other questions were asked on the voir dire examination, or whether this was the first question asked relating to the juror's attitude toward Negroes. Apparently this is only one of a series of questions on the subject for one of appellant's briefs states: "The court erred in not allowing the counsel for the defense to further question the prospective jurors concerning possible race prejudice." (Emphasis added.) This would indicate that other questions along this line had been allowed. Furthermore, the question, as framed, was not germane to the question whether the juror in acting in the case would have such racial prejudice as to prevent or make difficult a fair or impartial verdict. Whether the juror would object to living in an apartment next door to a Negro is an entirely different question.¹ We find no error in the ruling of the court on this point.

In a series of specifications of error appellant asserts that the court erred in admitting in evidence, over the objections of the defense, certain exhibits consisting of parts, or photographs of parts of the dismembered portions of the body of the deceased man. Thus finger tips and toe which were found near the hotel and pieces of flesh and hair found beneath the window of the room occupied by Rivers and his wife were offered and received. A number of photographs of the body of the deceased taken at the morgue disclosing the manner in which the portions of the body had been cut up were also received in evidence over the objection of the defense.

These objections were made upon the ground that this evidence was so gruesome and horrifying that it would inflame and excite the jurors and prejudice them against the defendant to such an extent as to deprive the defendant of a fair trial. The argument is that the dismemberment of the body was admitted by counsel for the defense at and during the trial; that death was not caused by any cutting or dismemberment of the body (the Government's case disclosed that death was the result of asphyxiation); therefore the dismemberment must have followed the death, and the evidence of cutting and dismemberment, it is said, proves nothing as to the cause of death or the circumstances of the crime itself.

The defendant's account of how the death occurred was that Rivers had been drinking heavily on the afternoon and night of December 3; during that time, as he had done previously, Rivers was threatening to kill the defendant, and during the evening he beat her, and was otherwise abusive toward her. She said that finally he took some sleeping pills and fell asleep in his bed; that she, fearing that he might get up and attack her, tied a string around his neck and attached the string to the head of the bed, and then she herself took a sleeping pill and laid down on the bed beside him and went to sleep. She said that when she woke in the morning she thought he was still asleep and did not discover that he was dead until she tried to wake him. Asked why she did not report to the police, she said she was afraid she would be charged with killing him, and in a panic undertook to hide the fact of his death by dismembering the body and attempting to conceal it. The evidence was that she used a cleaver for this purpose. The cleaver was found where she later reported she had thrown it.

Appellant argues that the only possible purpose for the introduction of all this evidence was to excite and inflame the jury, and that it had no probative value because the fact of the dismemberment was not in issue.

The courts have frequently had occasion to deal with contentions of this kind, most of them arising in cases of homicide.² A good statement of the rule commonly accepted is found in People v. Chavez, 50 Cal.2d 778, 329 P.2d 907, 916, as follows: "Such photographs should be excluded where their principal effect would be to inflame the jurors against the defendant because of the horror of the crime; on the other hand, if they have a probative value with respect to a fact in issue that outweighs the danger of prejudice to the defendant, they are admissible, and the resolution of this question is primarily for the trial court in the exercise of its discretion."

This court, in a case on appeal from the Territory of Alaska, approved the action of the lower court in admitting similar photographs, applying substantially the same rule set forth in the California case cited. Eagleston v. United States, 9 Cir., 172 F.2d 194, 200. We held that the trial court did not abuse its discretion in permitting the jury to see the pictures, and that this court could not say that any prejudicial effect therefrom outweighed their probative value. See also, Fuller v. United States, 9 Cir., 170 F.2d 515, 516.

In the recent case of State v. Griffith, 52 Wash.2d 721, 328 P.2d 897, 900, the court answered a contention similar to the one made by this appellant by noting that "Pictures that accurately represent the true state of the thing depicted are admissible if they have probative value upon some element of the crime charged." After finding that the pictures in evidence there had a probative value both to disclose the means of the killing and the existence of the intent on the part of the defendant, the court said: "Competent evidence is not prejudical just because it is gruesome. * * * The admission or rejection of photographs lies largely in the sound discretion of the trial court, and in the absence of a showing of abuse of discretion, the trial court's ruling will not be disturbed on appeal."

It is well settled that the conduct of an accused person following the commission of an alleged crime may be circumstantially relevant to prove both the commission of the acts charged to the accused and the intent and purpose with which those acts were committed. Among such acts are flight of the accused and concealment of the results of the crime. Allen v. United States, 164 U.S. 492, 499, 17 S.Ct. 154, 41 L.Ed. 528; Bird v. United States, 187 U.S. 118, 131, 23 S.Ct. 42, 47 L.Ed. 100; Strom v. United States, 9 Cir., 50 F.2d 547, 548. Cf. Lutch v. United States, 9 Cir., 73 F.2d 840, 841, and United States v. Heitner, 2 Cir., 149 F.2d 105, 107. It is plain that the jury could well infer from the evidence in this case that the dismemberment of the body and the throwing of the portions into the sea were done to conceal a murder or to avoid its detection. This would be particularly true of the acts disposing of the finger tips. Such an act would serve the purpose of avoiding identification of the body. Since the photographs would tend to disclose just how the dismemberment was accomplished, examination of the photographs would give some enlightenment as to the defendant's probable state of mind and purpose in performing these acts, — whether it was done wildly, or in a calculated manner. These considerations disclose the relevancy and probative...