State v. Allen

• Decision Date: 02 March 2006
• Citation: 2006 ME 21,892 A.2d 456
• Parties: STATE of Maine v. Jeremy ALLEN.
• Court: Maine Supreme Court

Page 456

892 A.2d 456

2006 ME 21

STATE of Maine v. Jeremy ALLEN.

Supreme Judicial Court of Maine.

Argued: November 14, 2005.

Decided: March 2, 2006.

G. Steven Rowe, Attorney General, Donald W. Macomber, Asst. Atty. Gen. (orally), Lisa P. Marchese, Asst. Atty. Gen., Augusta, for State.

Wendy Moulton Starkey, Esq. (orally), Erwin, Ott, Clark, Orso & Campbell, York, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

CALKINS, J.

[¶ 1] Jeremy Allen appeals from a judgment of conviction of assault (Class C), 17-A M.R.S.A. § 207(1)(B) (Supp.2003), entered after a jury trial in the Superior Court (Androscoggin County, Gorman, J.). Allen argues that (1) the evidence was insufficient to convict him; (2) the court erred when it admitted statements that Allen's wife made to an emergency medical technician; (3) the prosecutor's conduct and statements during closing argument amounted to prosecutorial misconduct; and (4) the court erred when it allowed into evidence a full-body photograph of the victim. We affirm the conviction, and the only issue that merits discussion concerns the admissibility of the photograph of the victim.

I. BACKGROUND

[¶ 2] The victim, Allen's son, was twenty-one months old at the time of the assault on February 13, 2003. The child died two days later, as the result of a separate incident that occurred on February 14. The child's mother, Allen's wife, was convicted of manslaughter for causing the child's death.¹

[¶ 3] The evidence at Allen's trial demonstrated that on the evening of February 13, the child became angry and defiant when Allen and his wife told the child to pick up toys. Allen attempted to redirect the child's behavior, but the behavior became a temper tantrum. Allen spanked the child with a wooden spoon, first on the diaper and then on the child's bare bottom. Allen testified that he did this no more than three times. The child finally calmed down when Allen's wife splashed water on his face. The next day, while Allen was in New Hampshire on business, he telephoned his wife, who told him that there was visible bruising on the child's bottom.

[¶ 4] Paramedics were called to the Allen residence around 10:00 P.M. on February 14. The child was unconscious, unresponsive, and breathing with great labor. The paramedics transported him to a hospital, and after he was stabilized, he was taken to Maine Medical Center, where he was diagnosed with severe head trauma and underwent extensive neurosurgery. After surgery, a pediatrician who specializes in child abuse examined the child and at Allen's trial, the pediatrician testified about the bruises. Three photographs were admitted into evidence, which depict bruising on the child's buttocks. Two of the photographs show only a portion of the child's body, but one shows the child's entire body, including the head bandage that was placed on the child after surgery. All three photographs show tubing and other medical apparatus attached to the child.

[¶ 5] Allen was indicted for the offense of assault and pleaded not guilty. Through motions in limine, he asked the court for rulings on various evidentiary matters. He sought to exclude a videotape and all photographs taken by the State or medical personnel, depicting bruises on the child. He contended that the videotape and photographs were not relevant and, if relevant, their probative value was outweighed by the danger of unfair prejudice and the danger of misleading the jury. At the motion hearing, Allen argued that the danger of unfair prejudice came in part from the depiction in the photographs of the medical apparatus on the child's body, which, he contended, would inflame the jury's emotions. The court promptly issued an order denying the motions with regard to the photographs and videotape, stating that "their probative value greatly outweighs any possible prejudice." The court added:

The issue for the jury to decide is whether [Allen's] actions amounted to an exercise of parental discipline or a criminal event. In order to make that decision, the jurors will need to consider, among other factors, the effect of the spanking on [the child]. The photographs and videotape contain direct evidence of those effects.

[¶ 6] Approximately one week after the decision on the motions in limine, jury selection was held, but the court was unable to impanel a jury, and the case was continued. Four months later, the court and parties conferred on several pretrial issues and set jury selection for the following Monday. Immediately prior to jury selection, a further conference of counsel took place. The court stated:

[O]ver the weekend I reviewed the videotape again, which the [S]tate had intended to offer to show [the child's] size, and I understand this morning that the parties have reached an agreement that the videotape will stay out, but that a photograph of [the child's] entire body at the hospital before death will go in in lieu of that videotape.

Both the prosecutor and counsel for Allen confirmed that they had reached an agreement. During the testimony of the pediatrician, the full-body photograph was admitted without objection, and the State did not offer the videotape into evidence.

[¶ 7] The jury convicted Allen of assault, and he was sentenced to eighteen months incarceration with all but six months suspended and a probationary period of two years.

II. DISCUSSION

[¶ 8] Allen contends that the court should not have admitted the photograph that showed the child's full body.² Allen argues that the photograph was not relevant, M.R. Evid. 401, 402, and its prejudicial effect outweighed any probative value, M.R. Evid. 403.

[¶ 9] Although the applicable standard of review is generally dependant upon whether the alleged error is preserved, we do not need to determine whether Allen preserved his objection to the photograph. We assume that Allen's motion in limine served to preserve the objection, and we apply the abuse of discretion standard of review, which is more beneficial to Allen than the obvious error standard.³ Even with the more beneficial standard of review, Allen cannot prevail in this appeal because the trial court acted well within its discretion by ruling on the motion in limine to admit the photograph.

[¶ 10] In State v. Crocker, 435 A.2d 58 (Me.1981), we articulated the three determinations that a court should make when it rules on the admissibility of photographs. There we affirmed Crocker's conviction for murder of his five-year-old stepson. Medical personnel testified to the bruises and burns on the child's body and to the cause of death from malnutrition and a head injury. Crocker, 435 A.2d at 73. The trial court admitted photographs that showed the child's condition, over the defendant's objection that they were unfairly inflammatory. We said that photographs are admissible if they are (1) accurate depictions; (2) relevant; and (3) if their probative value is not outweighed by any tendency toward unfair prejudice. Id. at 75. There was unchallenged testimony in Crocker that the photographs accurately portrayed what they purported to portray. They were relevant because they tended to show that Crocker had engaged in an ongoing course of conduct toward the child and refuted any defense that Crocker's conduct was accidental. They also illustrated the medical testimony and helped the jury assess the defendant's culpability. Id. Furthermore, the photographs were not merely cumulative of the medical testimony because they "conveyed relevant information to the jury in a much more complete and meaningful form than could the almost clinical words of the doctors and nurses." Id. at 76. Although the photographs could be considered "gruesome," that fact did not make them inadmissible, because the salient issue was whether their probative value was "substantially outweighed by the danger of unfair prejudice." Id. (citations omitted). We said that the trial court did not abuse its discretion in admitting the photographs.

[¶ 11] In this case, the accuracy determination outlined in Crocker, is met in that there is no suggestion that the full-body photograph did not depict the child accurately. Indeed, the inference from Allen's argument is that the photograph depicts the child too accurately by showing everything including the head bandage and medical apparatus.

[¶ 12] All three photographs were relevant both on the issue of the assault and Allen's defense, which was that the spanking was justified as parental discipline. See 17-A M.R.S. § 106(1) (2005).⁴ A fact that is of consequence in a parental discipline defense is whether the force used by the parent results in temporary marks and transient pain. State v. York, 2001 ME 30, ¶ 14, 766 A.2d 570, 574. The size and color of the bruises on the child were pertinent to this issue, and the photographs show that it was more probable than not that the marks were not temporary. Furthermore, they were relevant in weighing Allen's credibility with respect to his testimony that he spanked the child only three times and was not trying to hurt him. The full-body photograph also showed the proportionate sizes of the bruises to the whole child, and it demonstrated his size overall. His size was relevant to the reasonableness of the force that Allen used to strike him. The wooden spoon that Allen used to spank the child was admitted into evidence, and the combination of the spoon and the size of the bruises in the full-body photograph allowed the jury to further assess Allen's story.

[¶ 13] The third determination in the analysis set forth in Crocker for the admissibility of photographs is a Rule 403 inquiry: whether the "probative value is substantially outweighed by the danger of unfair prejudice." M.R. Evid. 403. To sustain a Rule 403 objection, the prejudice "must be more than simply damage to the opponent's cause." State v. Ardolino, 1997 ME 141, ¶ 10, 697 A.2d 73, 78 (citations omitted)....