State v. Rowe, No. 14135

• Court: Supreme Court of West Virginia
• Writing for the Court: HARSHBARGER
• Citation: 259 S.E.2d 26,163 W.Va. 593
• Parties: STATE of West Virginia v. Frank Lewis ROWE.
• Decision Date: 23 October 1979
• Docket Number: No. 14135

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259 S.E.2d 26 163 W.Va. 593 STATE of West Virginia
v.
Frank Lewis ROWE. No. 14135. Supreme Court of Appeals of West Virginia. Oct. 23, 1979.

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Syllabus by the Court

1. Gruesome photographs are not Per se inadmissible, but they must have something more than probative value, because by the preliminary finding that they are gruesome, they are presumed to have a prejudicial and inflammatory effect on a jury against a defendant. The State must show that they are of essential evidentiary value to its case.

2. Volunteered admissions by a defendant are not inadmissible because the procedural safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were not followed, unless the defendant was both in custody and being interrogated at the time the admission was uttered.

Larry N. Sullivan, Parkersburg, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., David F. Greene, Asst. Atty. Gen., Charleston, for defendant in error.

HARSHBARGER, Justice:

On January 13, 1976, Frank Lewis Rowe was arrested for public drunkenness and placed in the Wood County jail "drunk tank" with three other men Ardell Braden, Richard Duffy and Floyd Malone. Between 5:30 and 6:00 p. m. the same day deputies discovered that Malone had been beaten to death. Rowe was convicted of second degree murder.

[163 W.Va. 594] I.

Fourteen photographs of Malone's body and the cell, taken when the body was found, were admitted over objection after an In camera hearing. Defendant contends they were calculated to arouse the jury's passions and prejudices against him.

We have not considered specific guides to help our trial courts decide about admissibility of photographs of a victim in a criminal case when a defendant objects because the photographs are gruesome or revolting, and therefore unduly prejudicial.

Syllabus Point 6 of State v. Sette, W.Va., 242 S.E.2d 464 (1978), taken from State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946) is:

" 'While photographs may, as a general rule, be introduced in evidence to depict scenes material to some issue therein, whether a particular photograph, or groups of photographs, should be admitted in evidence, rests in the sound discretion of the trial court; and its rulings thereon will be upheld unless there is a clear showing that its discretion has been abused.' "

Sette upheld introduction of photographs of a homicide victim, but the case was reversed

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on other grounds and the photographic evidence comment was quite limited. Wooldridge was not concerned with inflammatory photographs, but with whether they accurately depicted a particular scene. State v. Whitt, 129 W.Va. 187, 40 S.E.2d 319 (1946), dealt with photographs which the Court described as "ghastly" but, without discussing underlying legal principles, sanctioned their admission. In State v. Goins, 120 W.Va. 605, 199 S.E. 873 (1938), photographs depicting a victim and the room and bed where he was shot were admitted, but the Court did not analyze the problem.

We recognize that photographs of a victim are admissible if they are relevant. State v. Sette, supra ; Annot., 73 A.L.R.2d 769 (1960).

[163 W.Va. 595] A qualification to this rule is that they may not be admissible if they are revolting or gruesome because their impact may unduly prejudice or inflame a jury. State v. Sette, supra; Young v. State, 234 So.2d 341 (Fla.1970); State v. Clark, 218 Kan. 18, 542 P.2d 291 (1975); Breshers v. State, 572 P.2d 561 (Okl.Cr.1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Photographs that show much gore and blood, or emphasize contorted facial or bodily features, or depict a body after autopsy procedures; and color photographs and enlargements of particular areas of a corpse magnifying its revolting aspects will be more likely condemned as gruesome. This is illustrated in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 697 (1977):

"The fact that pictures depict the corpse of a victim does not render then inflammatory per se. Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974). Rather the depiction must be of such a gruesome nature or be cast in such an unfair light that it would tend to cloud an objective assessment of the guilt or innocence of the defendant. The position of the body, whether it is nude or wholly or partially covered, whether the facial features are contorted, whether blood is present in profusion and similar factors are to be considered."

Gruesome photographs are not Per se inadmissible. But the trial court must be satisfied that they are essential to the State's case. See, e. g., People v. Garlick, 46 Ill.App.3d 216, 4 Ill.Dec. 746, 360 N.E.2d 1121 (1977); State v. Clark, supra; State v. Scott, 337 So.2d 1087 (La.1976); State v. Partee, 199 Neb. 305, 258 N.W.2d 634 (1977); State v. Polk, 164 N.J.Super. 457, 397 A.2d 330 (1977); Commonwealth v. Ross, 452 Pa. 500, 307 A.2d 898 (1973); Commissioner v. Chacko, 480 Pa. 504, 391 A.2d 999 (1978). They must have something more than probative value, because by the preliminary finding that they are gruesome, they are presumed to have a prejudicial and inflammatory effect on [163 W.Va. 596] a jury against a defendant. The State must show that they are of essential evidentiary value to its case. This point was developed in Commonwealth v. Chacko, 480 Pa. 504, 391 A.2d 999, 1001 (1978):

"Having found the photographs to be inflammatory, we must next determine whether they were of essential evidentiary value to the prosecution's case. Commonwealth v. Schroth, supra (479 Pa.) at 488, 388 A.2d (1034) at 1036; Commonwealth v. Ross, 452 Pa. 500, 506, 307 A.2d 898, 901 (1973) (photographs essential to rebut claim of self-defense). . . . The Commonwealth proceeded upon the theory of felony murder, charging robbery as the underlying felony. At trial, the coroner, who examined the victim's body at the crime scene, testified extensively as to the condition of the victim's body and the nature of the wounds. Following the coroner's testimony, the pathologist who conducted the autopsy testified as to similar matters and stated that death was caused by knife and bullet wounds. Thus, there was an abundance of expert testimony going to prove the element of death due to a...