State v. Broberg

• Citation: 677 A.2d 602,342 Md. 544
• Decision Date: 01 September 1995
• Docket Number: No. 22,22
• Parties: STATE of Maryland v. Paul Everett BROBERG. ,
• Court: Maryland Court of Appeals

Page 544

342 Md. 544

677 A.2d 602

STATE of Maryland v. Paul Everett BROBERG.

No. 22, Sept. Term, 1995.

Court of Appeals of Maryland.

June 11, 1996.

Kimberly Smith Ward, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Petitioner.

Kevin G. Hessler (James Robert Miller, Miller, Steinberg & Hessler, on brief), Rockville, for Respondent.

Russell P. Butler, Camp Springs, for Amicus Curiae, Stephanie Roper Foundation, Mothers Against Drunk Driving (MADD), The National Victim Center, and the Maryland Coalition against Crime.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RAKER, Judge.

We granted certiorari in this case to determine whether "in life" photographs, depicting a homicide victim while the victim was alive, may be displayed to the jury at trial.

I.

On April 25, 1993, Respondent Paul Everett Broberg was driving along a two-lane road in Frederick County. The posted speed limit was fifty miles per hour. As Broberg drove over the crest of a hill, he struck and killed eleven-year-old Thomas Blank, Jr., who was driving a tractor across the road. At the time of the accident, Broberg's speed was estimated at approximately sixty-four miles per hour. His blood alcohol level was measured at 0.17.

Broberg was indicted in the Circuit Court for Frederick County on thirteen charges, including manslaughter by automobile, homicide by motor vehicle while intoxicated, driving while intoxicated, reckless driving, exceeding the speed limit, speed greater than reasonable and prudent, failure to reduce speed to avoid an accident, and other related offenses.

Broberg was tried before a jury in the Circuit Court for Frederick County in November, 1993. During its opening statement, the State displayed two "in life" photographs of the victim: a sixth-grade school picture, and a photograph of the victim in his little league uniform. Defense counsel objected and moved for a mistrial, arguing that the photographs were irrelevant, and that they could not be shown to the jury until they were introduced in evidence. ¹ The trial judge denied the motion.

The State used the photographs a second time during its direct examination of the victim's father, Thomas Blank, Sr. When Mr. Blank was shown the photographs and asked to identify the victim, he wept. Defense counsel again objected and moved for a mistrial, arguing that the photographs were irrelevant in light of the parties' prior stipulation to the victim's identity. The prosecutor, however, disputed the scope of the stipulation, stating "that's not what he stipulated to, your honor, for the record." See infra Section IV.B and note 13. The trial judge denied the motion, and the prosecutor displayed the two photographs to the jury.

Broberg was convicted of homicide by motor vehicle while intoxicated, driving while intoxicated, reckless driving, exceeding the speed limit, speed greater than reasonable and prudent, and failure to reduce speed to avoid an accident. He was sentenced to five years imprisonment with all but eighteen months suspended, a fine of $3350 with $1500 suspended, and three years supervised probation.

Broberg noted a timely appeal to the Court of Special Appeals. The intermediate appellate court reversed the judgment in an unreported opinion, concluding that the photographs should have been excluded because they were of minimal probative value and were highly prejudicial. We granted the State's petition for a writ of certiorari to resolve the issue of the admissibility of "in life" photographs in criminal cases. ²

II.

The State contends that admission of the "in life" photographs was within the trial court's discretion, and therefore that the Court of Special Appeals should not have reversed the trial court's decision. The State also argues that the photographs provided relevant background information to "humanize" the victim, consistent with the purposes of Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.) § 761 of Article 27.

Respondent argues that the trial court abused its discretion in permitting the State to use the "in life" photographs because he contends that the parties agreed to stipulate to the victim's identity, thereby eliminating the photographs' probative value. The photographs thus served only to inflame the jury, and their probative value was outweighed by their prejudicial effect. Furthermore, Respondent argues that the error in admitting the photographs was not harmless beyond a reasonable doubt. Finally, Respondent argues that neither Article 47 of the Maryland Declaration of Rights nor § 761 of Article 27 creates a right for a homicide victim to be represented in a criminal proceeding by use of an "in life" photograph. ³

III.

A. Admissibility of Photographic Evidence

This Court has on many occasions considered the admissibility of photographic evidence. See, e.g., Johnson v. State, 303 Md. 487, 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986); Cook v. State, 225 Md. 603, 171 A.2d 460 (1961), cert. denied, 368 U.S. 970, 82 S.Ct. 445, 7 L.Ed.2d 398 (1962); Smith v. State, 182 Md. 176, 32 A.2d 863 (1943). We conclude that "in life" photographs are subject to the same evidentiary analysis as other types of photographs.

As we have consistently stated, the general rule regarding admission of photographs is that their prejudicial effect must not substantially outweigh their probative value. ⁴ See, e.g., Bedford v. State, 317 Md. 659, 676, 566 A.2d 111, 119 (1989); Harris v. State, 312 Md. 225, 245, 539 A.2d 637, 647 (1988); Mills v. State, 310 Md. 33, 43, 527 A.2d 3, 7 (1987), vacated on other grounds, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). This balancing of probative value against prejudicial effect is committed to the sound discretion of the trial judge. The trial court's decision will not be disturbed unless "plainly arbitrary," Johnson, 303 Md. at 502, 495 A.2d at 8, because the trial judge is in the best position to make this assessment. See, e.g., Bedford, 317 Md. at 676, 566 A.2d at 119; Mills, 310 Md. at 43-44, 527 A.2d at 8; Grandison v. State, 305 Md. 685, 729, 506 A.2d 580, 602 (1986), cert. denied, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986); but see Buch v. Hulcher, 180 Md. 309, 313-14, 23 A.2d 829, 831 (1942).

Photographs must also be relevant to be admissible. J. MURPHY, JR., MARYLAND EVIDENCE HANDBOOK § 1102, at 578 (2d ed. 1993 & 1995 Cum. Supp.); see also 3 WIGMORE ON EVIDENCE § 792, at 237 (Chadbourn rev. 1981 & 1990 Supp.). We have found crime scene and autopsy photographs of homicide victims relevant to a broad range of issues, including the type of wounds, the attacker's intent, and the modus operandi. See, e.g., Clarke v. State, 238 Md. 11, 21-22, 207 A.2d 456, 461-62 (1965). "In life" photographs are often relevant to establish the victim's identity. See Annot., Homicide: Identification of Victim, 86 A.L.R.2d 722, 739 (1962). The relevancy determination is also committed to the trial judge's discretion. ⁵ 5 L. M CLAIN, MARYLAND EVIDENCE § 403.5, at Supp. 106 (1987 & 1994 Supp.).

In assessing the relevance of photographic evidence, we note that photographs may be relevant and possess probative value even though they often illustrate something that has already been presented in testimony. Grandison, 305 Md. at 730, 506 A.2d at 602. As we observed in Johnson v. State, "all photographic evidence is in some sense cumulative," 303 Md. at 504, 495 A.2d at 9, and "[a]lthough ... cumulative, it should seldom be excluded for that reason." ⁶ MURPHY, supra, § 1102, at 578. The rationale for allowing photographs to be used to illustrate verbal testimony is that in some cases "photographs present more clearly than words what the witnesses were attempting to describe[.]" Reid v. State, 305 Md. 9, 21, 501 A.2d 436, 442 (1985). ⁷

We have also noted that photographs do not lack probative value merely because they illustrate a point that is uncontested. Grandison, 305 Md. at 730, 506 A.2d at 602. For example, in Evans v. State, 333 Md. 660, 637 A.2d 117 (1994), cert. denied, 513 U.S. 833, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994), we held that autopsy photographs were admissible in a capital sentencing proceeding even though the defendant had stipulated to the facts the photographs were offered to prove. Judge Karwacki, writing for the Court, observed that:

[A] judge should exercise his or her discretion with caution when ruling on the admissibility of photographic evidence in capital sentencing proceedings. The need for caution, however, in no way circumscribes the judge's evidentiary authority; the admission of photographs into evidence remains soundly committed to the discretion of the trial judge in capital sentencing proceedings.

Applying this standard to the facts before us, we cannot say that the trial judge abused his discretion in allowing these photographs into evidence. The photographs illustrated the number of shots fired at each victim and the pattern of the victims' gunshot wounds. It is immaterial for this purpose that Evans had stipulated to the cause of death, location of wounds, etc., for "the very purpose of photographic evidence is to clarify and communicate facts to the tribunal more accurately than by mere words."

Id. at 693, 637 A.2d at 133 (citations omitted). Accord Grandison, 305 Md. at 730, 506 A.2d at 603 ("[T]he particular photographs [are not] inflammatory to the jury solely on the basis that they do not represent any issue in controversy. Further, since the photographs are mere graphic representations of undisputed facts already in evidence, their introduction could not be held to have injured the accused.").

Although the trial judge possesses broad discretion regarding the admission of photographs, this discretion does not authorize the judge to admit irrelevant photographs. For example, in Buch v. Hulcher, 180 Md. 309, 23 A.2d 829 (1942), an...