State v. Conwell

• Decision Date: 23 October 1978
• Citation: 392 A.2d 542
• Parties: STATE of Maine v. David CONWELL.
• Court: Maine Supreme Court

Page 542

392 A.2d 542

STATE of Maine v. David CONWELL.

Supreme Judicial Court of Maine.

Oct. 23, 1978.

William P. Donahue, Dist. Atty., Eric B. Cote (orally), Asst. Dist. Atty., Alfred, for plaintiff.

Childs, McKinley, Emerson & Rovzar by Roderick R. Rovzar (orally), Portland, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, DELAHANTY, GODFREY and NICHOLS, JJ.

DELAHANTY, Justice.

After a jury trial in Superior Court, York County, the defendant was convicted of aggravated assault, 17-A M.R.S.A. § 208, in connection with the beating of his two-year-old illegitimate son. On this appeal, the defendant asserts 1) that certain photographs of the beaten child were overly prejudicial and therefore should not have been admitted into evidence, 2) that medical testimony concerning possible prior injuries to the child was irrelevant and should have been excluded, and 3) that the evidence introduced at trial was insufficient to support the jury's verdict.

We deny the appeal.

At the trial, the jury was required to resolve two conflicting versions of the event in question. The mother of the child, Claire Mondor, testified that on January 14, 1977, she was awakened late at night by the sound of the defendant, with whom she had been living for some time, and his friends entering the house. From her bedroom, she saw the defendant together with the child in the second floor hallway and heard the defendant's footsteps as he descended the stairs with the child. She heard more footsteps after the pair had reached the first floor, and then she heard a door close followed by the screams of her son. Shortly thereafter, Ms. Mondor got out of bed and met the defendant, who was holding the child, at the top of the stairs. The child was bleeding profusely from a cut near his eye and had a swollen lump on his forehead which defendant was attempting to ease by pressing some ice wrapped in a towel against it. The defendant explained that he had fallen on the stairs while carrying the child. Soon thereafter, the mother discovered blood on the family's clothes dryer and on a nearby wall. The dryer was located in a shed adjacent to the kitchen. A door separated the kitchen from the shed.

The theory of the prosecution, then, was that the defendant had taken the child down the stairs, walked into the kitchen, opened the door to the shed, closed it, assaulted the child, and then returned to the second floor.

The defendant's version at trial was consistent with the statement he made to Ms. Mondor shortly after the incident. He testified in his own defense that he came home late at night together with friends, that he looked in on his son, and, noticing that he was awake, decided to take him downstairs to feed him. Halfway down the stairs, the defendant tripped on his bootlace and pitched forward struggling in an effort not to fall on the child. After the fall, the defendant carried the bleeding child into the kitchen and through the door into the shed where, after wiping some of the blood from his hands, the defendant wrapped a towel around an icicle and pressed it to the child's forehead. That done, he carried the child back into the kitchen and up the stairs to the second floor. The defendant's version was corroborated in part by Gus Laverriere, a friend of defendant, who testified that he was lying on the living room couch and observed the defendant and his son fall down the stairs. The mother, on the other hand, testified that she did not hear the defendant trip on the stairs.

The defendant admitted that on the morning after the incident he counseled against taking the child to the hospital. The mother waited four days before getting touch with the authorities.

The medical testimony at the trial was offered by Dr. Lyman Page who had examined the child on the 18th of January, 1977. As the State puts it in its brief, Dr. Page "was unable to arrive at a specific cause of the injuries but suggested several possibilities including physical blows to the victim." The jury returned a guilty verdict, and this appeal followed.

I.

Four days after the beating was alleged to have taken place, Claire Mondor contacted a State agency which turned the matter over to the police. Detective Morin of the Biddeford Police Department took two photographs of the injured child which were later admitted into evidence over a timely objection. The defendant now claims, as he did at trial, that the probative value of the photographs was "substantially outweighed by the danger of unfair prejudice" to him. M.R.Evid. 403.

It is settled law in this jurisdiction that the admissibility of photographs is left largely to the discretion of the presiding Justice. State v. Boucher, Me., 376 A.2d 478 (1977); State v. Bazinet, Me., 372 A.2d 1036 (1977); State v. Sargent, Me., 361 A.2d 248 (1976); State v. Stackpole, Me., 349 A.2d 185 (1975); State v. Berube, Me., 297 A.2d 884 (1972); State v. Rollins, Me., 295 A.2d 914 (1972); R. Field & P. Murray, Maine Evidence § 403.5 (1976).

The photographs in question depict a young child with reddish marks under one eye and a dark bruise on the inside corner of another. In clarifying the position of the bruises, the photographs served to illustrate the doctor's testimony and, further, may well have been a valuable aid to the jury in answering the critical question of whether the injuries were purposefully inflicted or the result of an accidental fall. While the photographs are unpleasant to view, they are not gruesome; and we are satisfied that the presiding Justice did not abuse his discretion in allowing them to be admitted into evidence.

II.

Dr. Page, a pediatrician who had examined the child on January 18, was called by the State and testified regarding the observations he made on that day. In addition to describing the injuries allegedly inflicted by the defendant on the 14th, the doctor mentioned that he had noticed certain bald spots on the child's head. Defense counsel entered a general objection, and the presiding Justice allowed the doctor to continue his description of the spots "without making an attribution of their origin." Subsequently, the doctor was asked what could have caused the spots. Defense counsel then renewed his general objection which was overruled on the strength of the State's representation that it would connect the doctor's opinion with evidence to be introduced at a later time. The doctor then testified that he could not be certain what the cause of the bald spots was, but he offered a number of possibilities one of which was that the hair could have been pulled out.

We are now asked to hold that the doctor's testimony regarding the bald spots was irrelevant and unduly prejudicial in that it tended to suggest a prior history of child abuse on the part of the defendant. Although the State failed subsequently to introduce evidence connecting the defendant to the bald spots an omission of which we heartily disapprove in light of the State's earlier representation it is also clear that defense counsel never specified the ground of his objection, ¹ never moved to strike the evidence, never moved for a mistrial, and never requested that the jury be given a curative...