United States v. Hobbs

• Decision Date: 20 November 1968
• Docket Number: No. 18488.,18488.
• Citation: 403 F.2d 977
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Edward HOBBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

403 F.2d 977 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. William Edward HOBBS, Defendant-Appellant.

No. 18488.

United States Court of Appeals Sixth Circuit.

November 20, 1968.

Robert H. Dedman (Court appointed), Nashville, Tenn., for appellant.

Rollie L. Woodall, Asst. U. S. Atty., Nashville, Tenn., for appellee; Gilbert S. Merritt, Jr., U. S. Atty., Nashville, Tenn., on brief.

Before PHILLIPS, CELEBREZZE and PECK, Circuit Judges.

PECK, Circuit Judge.

The sole question raised in this appeal from defendant-appellant's conviction of the offense of armed robbery of a federally insured bank (in violation of 18 U.S.C. § 2113(d)) concerns the receipt in evidence of certain photographs. These photographs, some sixty in number, purport to depict the armed robbery of the bank in question. They were identified and received in evidence on the basis of the testimony of bank teller Juanita Tomlinson, called as a government witness.

Mrs. Tomlinson testified that when she saw "this man run in from the front door with a stocking over his face, and a gun in his hand" she "activated" the automatic camera which took the pictures. She testified that the camera was "up behind the teller's cage, up toward the ceiling," and took pictures of the inside of the bank; that when activated it took pictures "ever sic so often," and that after she "started this camera to working" it took pictures until after the robbery was over, at which time she saw a fellow employee turn it off.

The photographs in question were assembled and offered in a looseleaf notebook, and following a series of preliminary questions and colloquies between the court and counsel, Mrs. Tomlinson responded in the affirmative to the two following questions asked by the trial judge:

"To your knowledge, do the photographs accurately represent what you personally witnessed * * * on this occasion that you have described?"

"Are you in a position to say that you have examined each and every picture in the notebook and that it is a fair and accurate representation of what occurred?"

On the basis of this testimony District Judge Miller properly ordered that the photographs be received in evidence.¹ Moore v. Louisville & Nashville R.R., 223 F.2d 214, 216 (5th Cir. 1955); Kortz v. Guardian Life Ins. Co., 144 F.2d 676, 679 (10th Cir.), cert. denied, 323 U.S. 728, 65 S.Ct. 63, 89 L.Ed. 584 (1944).

When photographs first began finding their way into judicial trials they were viewed with suspicion and received with caution. It was not uncommon to place upon the offering party the burden of producing the negative as well as the photograph itself, and of proving that neither retouching or other manual or chemical intervention was reflected in the proffered print. That burden has now shifted, and the proponent of a proffered photograph has established a prima facie case for its admissibility when he has shown it to be an accurate representation of the scene in question. 3 Wigmore on Evidence, Sections 793-794 (3rd Ed.1940). The opposing party should then be afforded an opportunity for voir dire cross-examination and to offer evidence to show that the picture is not in fact an accurate representation. Jenkins v. Associated Transport, Inc., 330 F.2d 706, 710 (6th Cir. 1964). No request for voir dire cross-examination or proffer of such evidence was here made.

Some objection to the admissibility of these photographs was made on the basis of Mrs. Tomlinson's inadequate knowledge of the technical processes by which they were taken and printed. This argument has greater than normal superficial attraction here because of the sophisticated nature of the photographic equipment...