State v. Duguay

• Decision Date: 20 February 1962
• Citation: 178 A.2d 129,158 Me. 61
• Parties: STATE of Maine v. Vincent E. DUGUAY.
• Court: Maine Supreme Court

Page 129

178 A.2d 129

158 Me. 61

STATE of Maine v. Vincent E. DUGUAY.

Supreme Judicial Court of Maine.

Feb. 20, 1962.

Frank E. Hancock, Atty. Gen., Gaston M. Dumais, Lewiston, for appellant.

Thomas E. Day, Jr., John E. Kivus, Lewiston, for appellee.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

WILLIAMSON, Chief Justice.

The respondent Vincent E. Duguay was found guilty of the murder of Annette Cross at the March 1960 Term of the Androscoggin Superior Court. The case comes before us on appeal and three exceptions.

EXCEPTION I

Three colored photographs, or slides, of parts of the head and brain of the deceased taken during the autopsy were admitted over objection of the respondent. They were shown to the Court and jury enlarged by projection on a screen, and in like manner to the Law Court at argument.

The deceased was killed by a bullet in the brain from a rifle discharged by the respondent. The pathologist, who conducted the autopsy and took the photographs, testified in careful detail about the course of the bullet and the cause of death. The photographs without question fairly represent the facts.

The governing principle has been stated succinctly by the Oklahoma Court in these words:

'* * * such photographs are admissible when they are relevant to the issues before the court and their probative value is not outweighed by the danger of prejudice to the defendant.' Glenn v. State, Okl.Cr., 333 P.2d 597, 601, cert. den. 359 U.S. 1014, 79 S.Ct. 1155, 3 L.Ed.2d 1039.

Admissibility of photographs under these principles rests upon the exercise of sound judicial discretion. In other words, there is no error in the absence of abuse of discretion.

Our Court has expressed the rule in these words:

'Photographs of a dead body, although gruesome, if accurate are admissible in the discretion of the trial court, and unless there is an abuse of judicial discretion no exception lies thereto. * * * These photographs met the test. There is not the slightest evidence in the case even tending to indicate that there was abuse of discretion on the part of the presiding Justice in the admission of these photographs.' State of Maine v. Rainey, 149 Me. 92, 94, 99 A.2d 78, 80.

'Counsel for the respondent argues that there was an abuse of discretion by the trial justice in admitting in evidence a photograph of the dead body of the deceased; that such photograph was too gruesome and could not but have prejudiced the jury against the respondent. Although exceptions to its admission were noted, they were not perfected. Were they now before us they could not be sustained. The photograph was properly taken; it had relevancy in determining the atrociousness of the crime; it was no more gruesome than the testimony related by the respondent on the stand; in any event its admissibility was within the discretion of the trial justice. State v. Turner, 126 Me. 376, 138 A. 562; State v. Stuart, 132 Me. 107, 108, 167 A. 550.' State of Maine v. Turmel, 148 Me. 1, 7, 88 A.2d 367, 370.

See also Commonwealth v. Makarewicz, 333 Mass. 575, 132 N.E.2d 294; 23 C.J.S., Criminal Law § 852; Annot. 159 A.L.R. 1413, 1420; 2 Wharton's Criminal Evidence (12th ed.) § 687.

Other cases cited by the respondent do no more than apply the general rule to differing factual situations. People v. Redston, 139 Cal.App.2d 485, 293 P.2d 880; State v Bischert, 131 Mont. 152, 308 P.2d 969; People v. Jackson, 9 Ill.2d 484, 138 N.E.2d 528; Craft v. Commonwealth, 312 Ky. 700, 229 S.W.2d 465; Oxendine v. State (Okl.Cr.) 335 P.2d 940.

Like principles apply to the use of colored and ordinary or non-colored photographs. As the respondent aptly points out, 'It is clear that colored photographs provide superior information over non-colored ones if otherwise equally admissible.' Color is a fact to be considered in determining the issue of admissibility. Color in itself, however, is not the test. The test lies in the effect of the photograph, whether colored or non-colored. Commonwealth v. Makarewicz, supra. See also Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67, 53 A.L.R.2d 1091, and annot. 1102.

The photographs met the first test. Plainly they were relevant to the issues, and particularly to the issues discussed by the pathologist. Rawley v. Palo Sales et al., 144 Me. 375, 70 A.2d 540; 20 Am.Jur., Evidence § 727.

The respondent urges that the photographs of parts of the corpse inflamed the jury, or were likely to create bias and hate. Again we have a question for decision within the broad limits of judicial discretion.

The respondent seeks to distinguish the instant case from State v. Ernst, 150 Me. 449, 454, 114 A.2d 369, 373, in which we said:

'The law is well settled that the mere fact that a photograph is gruesome is not a reason for its non admission. * * *

'The presiding Justice has great latitude and discretion in determining the admissibility of photographs and unless there is shown an abuse of discretion, his ruling will not be disturbed on exceptions.'

The respondent points out that in Ernst the parts of the body shown in the photographs had not been interfered with by incisions during autopsy, and also that evidence of various wounds and abrasions was shown. The argument goes not to the rule but to its application to the facts. The Ernst case did not fix a line between admissibility and rejection on its facts.

Men and women of standing to be jurors and who have passed into the jury box are not so weak and untutored that they would be influenced to return a verdict of guilty by reason of the photographs. Surely the average man and woman is not so far removed from pain and sorrow, from gruesomeness, from scenes of death and violence and the like, that photographs such as these would turn the reasoning mind into dislike of or prejudice against a respondent defending himself in the halls of Justice.

The Oregon Court, in upholding the admissibility of a colored slide photograph in connection with medical testimony regarding the fatal wound in a homicide case against a charge of gruesomeness, said:

'If a jury is incapable of peforming its function without being improperly influenced by evidence having probative force, then the jury system is a failure.' State v. Long, 195 Or. 81, 244 P.2d 1033, 1053. Commented on in 53 A.L.R.2d 1103.

We do not say that there may not be situations in which the danger of prejudice outweighs the probative value of photographs. We are convinced, however, that such is not so in the instant case. There was no abuse of judicial discretion in the admission of the photographs. Exception I is overruled.

EXCEPTION II

This exception from denial of respondent's motion for mistrial reads in part:

'When the Jury was leaving the Androscoggin County Building during the noon recess and on their way to lunch and in the course of the trial it came to the attention of the court and counsel for the State and counsel for the Respondent that a member of the Jury trying the case had separated from the other members of that body and had a conversation with another person or two persons. It was shown that the said juror had the conversation with the wife of the Jury Foreman.'

A hearing was held by the presiding Justice at which the Clerk of Courts and a jury officer, both of whom saw the incident but did not hear the conversation, and a member of the jury and the wife of the foreman, who engaged in the conversation, testified. At most, the conversation was no more than a request by the foreman's wife to the member of the jury 'if (her husband) needed something to tell me.' The incident took no more than a moment.

The respondent contends that the separation of the jury and conversation of a juror with the wife of a foreman compel a mistrial. In our view there was no separation of the jury which the law should notice. The juror was at all times in the sight of a jury officer, and at most departed no more than a few feet from the line in which the jurors were walking in a hall in the courthouse. In State v. Woods, 154 Me. 102, at p. 106, 144 A.2d 259, at p. 260, the Court, in applying the general rule, said:

'In our view the decision here is controlled by our determination as to what constitutes an unauthorized 'separation' which the law will notice. It is not every withdrawal of one or more jurors from their fellows that constitutes a 'separation' in the legal sense. * * * The rules governing the supervision of a jury during the often protracted trials of capital cases must be realistic and practical while at the same time eliminating insofar as possible any reasonable opportunity for communication, outside influence and prejudice. Both the State and the respondent are entitled to a verdict which is the product of minds which are influenced only by the law and the evidence properly submitted to them during the trial and the jurors themselves are entitled to be protected from even the appearance of improper influence in order to be assured of public confidence in their verdicts.'

In the instant case there is the fact of conversation not present in Woods, supra. No one condones irregularity in the conduct of a juror, but what in all fairness has the respondent suffered? Could the wife's inquiry about her husband's needs in any way have influenced his judgment, or that of the juror to whom the inquiry was addressed, or that of the ten other jurors? The maintenance of purity in the conduct of a trial does not compel the discard of common sense. The presiding Justice was entirely justified in finding that there was no opportunity to prejudice or influence the jury under the circumstances.

In reaching this conclusion we apply the principle that by a separation of the jury and a conversation with a third party by a juror, prejudice will be presumed until rebutted by the State. This burden has plainly been met by the State in this instance. Johnson v. State, 75 Ga.App. 186, 43 S.E.2d 119 (two...