State v. Smith

• Citation: 327 So.2d 355
• Decision Date: 01 October 1975
• Docket Number: No. 56410,56410
• Parties: STATE of Louisiana v. Ronald SMITH.
• Court: Supreme Court of Louisiana

Page 355

327 So.2d 355

STATE of Louisiana v. Ronald SMITH.

No. 56410.

Supreme Court of Louisiana.

Oct. 1, 1975.

Dissenting Opinion Oct. 14, 1975.

On Rehearing Feb. 23, 1976.

Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant was tried and convicted of the murder of Steve Brubaker during a robbery which resulted in the death of two persons. The trial court sentenced defendant to life imprisonment without benefit of probation, pardon, parole, suspension or commutation of sentence for at least twenty years. It is settled that insofar as it conflicts with the Constitution by depriving the governor of his right to commute sentences (Art. 4, § 5, La.Const., 1974), such a penalty cannot stand. State v. Varice, 292 So.2d 703 (La.1974); State v. Ramsey, 292 So.2d 708 (La.1974).

Defendant raises three assignments of error to this court. We find it necessary to discuss only two of these.

In his first assignment of error, defendant argues that the trial court committed reversible error by admitting into evidence a picture of the body of the victim taken at the morgue. The picture is a close up color photograph of the victim's head and shoulders, depicting large amounts of blood spread upon the victim's body as well as the area surrounding his head. The picture is grisly.

The test of admissibility is whether the probative value of the photograph outweighs its probable inflammatory effect. State v. Devore, 309 So.2d 325 (La.1975); State v. Chavers, 294 So.2d 489 (La.1974); State v. Curry, 292 So.2d 212 (La.1974). Further, to be admissible, the photograph must be relevant for some purpose. State v. Chavers, supra; State v. Curry, supra. This concept is a recognition that a balance must be struck between the probativity of the photograph and its tendency 'to overwhelm reason and to associate the accused with the atrocity without sufficient evidence.' 4 Wigmore, Evidence § 1157 (Chadbourn rev. 1972).

The photograph in the record before us does not depict the scene of the crime, as the trial judge's per curiam states. The upper portion of the victim's body and the bloody stretcher are the only objects identifiable in the picture. An assistant coroner later testified that the picture showed the body of the victim as he found it at the scene of the killing. A photographer testified he took the picture at the morgue.

Before this picture was admitted into evidence, the physician who had examined the victim at the scene testified that the victim had died of a gunshot wound to the head. Additionally, the physician who conducted the autopsy testified that the victim had died of a gunshot wound to the head and he was able to identify the bullet he had removed from the body of the victim. The picture was of little value in establishing the nature of the wounds or the cause of death.

Nor does the value of the picture in identifying the victim outweigh the gruesomeness of the picture; the investigating officer, who knew the victim, gave uncontradicted testimony that he recognized the dead body of the victim when he first arrived on the scene of the crime.

Under these circumstances we cannot agree that the probative value of this picture outweighs its prejudicial effect; in placing this photograph before the jury, the trial court abused his discretion.

This assignment of error has merit.

In his third assignment of error, defendant alleges that during the State's closing argument reference was made to defendant's failure to take the stand, in violation of the prohibition of C.Cr.P. 770. The comments of which defendant complains were made during the district attorney's effort to rebut several discrepancies raised by defense counsel:

'. . . Well, I would assume that the gun was held at the top of the head. Wouldn't you logically conclude that if the bullet entered the top of the head? Who knows what went on in that cooler. Who knows what went on in this room besides the man who's seated right here and the two dead boys. Albert Lewis, as I said, can say what happened, but they can't--I don't know the position they were in in that cooler. One man does and that's the man who walked out of there with that gun. There were no fingerprints. Well, what are we supposed to do, manufacture fingerprints to say we found fingerprints? The police made a search for fingerprints and they didn't find any.' (Emphasis added).

In arguing that this does not constitute a comment on defendant's failure to take the stand, the State relies on two cases decided by this court. State v. Howard, 262 La. 270, 263 So.2d 32 (1972) and State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972). However, neither of these cases is applicable.

In State v. Howard this court upheld a conviction in which the district attorney, during closing argument, made reference to the defendant by saying 'he has not seen fit to tell us.' We were careful to point out that the remark was not a reference to defendant's failure to take the stand because it referred to a lengthy recorded confession during which defendant had not explained why he had shot the victim of the armed robbery:

'The trial judge found that the physical evidence introduced at the trial was on the rail of the jury box before the jury at the time of the closing argument, and that the prosecutor's reference was to a lengthy tape recorded confession, in which the accused admitted the crime, but gave no explanation for shooting the victim of the robbery.' (263 So.2d 32, 34).

In State v. Clouatre a State witness, testifying in response to questions propounded by defense counsel, remarked, 'No sir, no one could say definitely, except your client, sir.' We clearly noted that whether or not the remark was a comment on defendant's failure to take the stand it was given By a witness in explanation to the question propounded by Defense counsel:

'It is doubtful that the witness' remark can be said to be a comment on the failure of the accused to take the stand. We judge it is not. Moreover, the statement was made in response to a question by defense counsel on cross-examination. It was not a statement by 'the judge, district attorney, or a court official.' And, although it is contended that the statement was gratuitous and uncalled for, it was in explanation of the answer to the question propounded by defense counsel. . . .' (264 So.2d 595, 603).

Nor does the district attorney's remark in the case before us amount to a comment that the State's evidence is unrefuted. State v. Burch, 261 La. 3, 258 So.2d 851 (1972); State v. Reed, 284 So.2d 574 (La.1973); State v. Baggett, 292 So.2d 201 (La.1974). At best, this expression is an indirect reference to the defendant's failure to testify--that he was the only person 'who knows what went on in that cooler;' it focuses the jury's attention on defendant's silence by asking, 'Who knows what went on in this room besides the man who's seated right here and the two dead boys.'

We cannot allow such an infringement of the rule of our statutes and that laid down in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that 'the Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.'

We are aware of our decision in State v. Cryer, 262 La. 575, 263 So.2d 895 (1972), in which we held that it was not a comment on the defendants' failure to testify where, during closing argument, the district attorney pointed to defendants and asked: 'Does anybody deny that these two people and Falcon were present that night in the Wooddale apartment? Does anybody attempt to refute this? No.' To the extent that State v. Cryer, supra, is in conflict with this opinion, it is overruled.

The assignment is meritorious.

For these reasons the conviction and sentence are reversed and the case is remanded to the district court for a new trial in accordance with law.

SANDERS, C.J., dissents and assigns written reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, Chief Justice (dissenting).

The record reflects that on January 25, 1974, Ronald Smith committed an armed robbery of the Burger King, 2600 North Robertson Street, in New Orleans. During the course of the robbery, he shot and killed Frank Canzoneri, the manager, and Steve Brubaker, an employee; he seriously wounded Albert Lewis, another employee.

In the present case, the defendant was tried and convicted of the murder of Steve Brubaker. The majority reverses his conviction because a picture of the dead victim was introduced in evidence.

Of significance here is the familiar principle that when a defendant pleads not guilty, the State has the burden of proving every element of the crime beyond a reasonable doubt. LSA-C.Cr.P. Art. 804. This means that the evidence of guilt must be such as to convince the jury that there can be no doubt based upon reason. In the present case, this high standard of proof applied to the identity of the victim and to the cause of his death.

The photograph here was taken by the official photographer of the Coroner's Office after the body was brought to the morgue. It shows the upper portion of the body of a youthful white male on a stretcher, with smudges of dried blood on his head and on the sheet beneath. An identifying number appears in the picture. Although the picture is unpleasant, as are all pictures of death, there is nothing in the picture to shock the sensibilities of jurors, who are obviously aware that the case deals with murder. There is no dismemberment of the body; there is no exposure of the internal organs; there is no gaping wound. This Court has affirmed numerous convictions in which similar photographs, in some instances more gruesome, were admitted...