*1 only The warrant right, duty, tention. was not directed to but to seize him, he premises irrespec- claimed in the no interest contraband which discover, occupation, respect or he falsified with tive of the fact that their is de- warrant Otherwise, presence prem- signed person.1 reason for his on the to seize a ises, departed justice from he the first which administration of criminal becomes opportunity, appre- a farce claiming against interest and an inoculation no any Now, personal property prosecution after breakers. therein. hension of law arguments disarming urges he of counsel for defendant in words, conduct and point fact, rights scholarly, ineptly this case were based after the claimer of but myopic on a clearly and somewhat unreasonable when he evinced a disclaimer. We interpretation inspired by specious. of the document think such contention to be the shot heard round the world. clearly point : This out 2) As to is scope side the of this case. The warrant was CROCKETT, J., CALLISTER, C. anything not directed with to do ELLETT, JJ., TUCKETT and concur. defendant, standing that he has no so asserted, particu object the ground — larly since he disclaimed interest anything house or in it. conten
tion was invalid. We warrant hereinabove, disposed
have
of that
issue
We officers so, lawfully, and this
premises
683,
States,
217,
Harris,
282,
People
N.E.
United
362 U.S.
S.Ct.
34 Ill.2d
(1960).
Ronald City, appel- Legal Services, Lake for Salt lant. Hansen, Gen., Gary Atty. A.
Phil L. City, Frank, Gen., Atty. Lake Asst. Salt respondent. CALLISTER, Justice: Defendant, Poe, Roy was convicted Lee degree of the first murder of Kenneth Hall. George, The murder occurred in St. Utah (population 5,130), about the trial was life held there. The deceased had been a long community, resident whereas comparative new defendant was a jury, returning comer. its verdict guilty, imprisonm did recommend life *3 Whereupon, pronounced ent.1 the court penalty.2 the death There was sufficient evidence to sustain , jury’s appeal defend- verdict and Rather, ant does not contend otherwise. errors com- claims several were during the trial each of which war- mitted and rant a reversal of conviction deem should not new trial. If this court preju- any alleged errors to one of dicial, cumula- that their then he contends a fair a denial of effect amounted to tive trial. penalty. impose required 76-30-4, death provided to tlie 1. As Sec. U.C.A. Romeo, P. 530 42 Utah 1953. (1912). jury’s - of recom- In the absence imprisonment, the court of life mendation Perhaps might have been a wiser
Defendant first contends designated prejudicial error in the trial court to have trial court committed course for charge jury jury placing the sheriff in than the sheriff as someone other during The sheriff had do bailiff, its deliberation. but under the circumstances we Hall investigation error, testified as to his of deem it have been least of place all, had taken prejudicial wherein the murder home error. body How victim’s discovered. point, As a second defendant con ever, testimony routine and did tends that he a fair trial be was denied link the the crime. As thought community pattern “the cause of of jury personal contact or bailiff he had no expressed by potential jurors (be They jurors. conversation with cause) relationships proximity room, therein retired to the remained which existed between members of only three and 20 minutes when hours prosecution, and witnesses for
they returned and announced their verdict.
victim,
prosecutors,
and the defend
foregoing
distinguish
this case
facts
disputed
large
ant.”
It cannot be
that a
Louisiana,3
from
relied
Turner v. State of
majority
prospective jurors
were
upon by
dep-
In that case two
defendant.
pur
aware of the crime and some
uty
key prosecution
sheriffs who were
wit-
ported
hardly
facts. This could
be other
sequest-
placed
charge
nesses were
of a
community
sparsely populated
wise in a
jury. They
jurors
ered
drove
(Washington County,
George
of which St.
from cafes for
from
meals and
10,-
county seat,
is the
population
has a
their
lodging
day,
each
conversed with
271). However,
judge carefully
the trial
them
and ran
errands.
and exhaustively
panel
examined the
stated at 379 U.S.
3. 379 U.S. 13 85 S.Ct. L.Ed.2d 424 head, picted showing the prosecution,4 the deceased’s the for the witnesses some defendant, prosecu- cap the skull the skull and the base of after victim, the the pathologist. the find brain had been removed However, unable to we are tors. peeled edge the acquaintance- The skin is these over wherein record showing cavity. An- empty skull brain defendant.5 prejudicial ships were top empty cavity. other is a view of al point, defendant As another They gruesome in black would have been prej court committed leges that the trial and white but the accentuates color by commenting the cred error udicial gruesomeness. prosecution in such ibility witness of a Initially, it is within the sound testimony before his as to manner bolster discretion of trial court to determine record examined jury. We have inflammatory whether nature of such find respect to this contention with outweighed by probative their slides is without merit. it to be respect value with a fact in issue. If Finally, contends though they may the latter be admitted even in admit court abused its discretion trial gruesome.6 they had In the instant case evidence ting some colored into slides probative no value. All the material facts displayed permitting them to be conceivably which could have been adduced jury by projector means aof slide viewing been es from a of the slides had contention, are With we screen. this lay med tablished uncontradicted agreement. testimony. only purpose ical served jury.7 was to inflame and arouse with, identity begin
To de- jury ceased, already It must be remembered his cause death and its question only case not photo- Black and white determined the been established. punishment it- showing guilt but also fixed the graphs had been introduced bed, only from the lying sleeping posi- use of slides victim in a self. prosecution’s standpoint tion, was to arouse holes head. with two bullet in his would during made emotions of so The colored slides were It imprisonment. autopsy. recommend life of an To describe them course gross very be that the would being gruesome be a under- well would could view them, the same absent its example, One de- returned verdict statement. ac- 4.Most members of also were 5. that defendant It is to be noted did quainted change of defendant’s with one or hoth of venue. for a move p. counsel. 6. A.L.R.2d 787. State, (Okl. P.2d 7. See Oxendine Cr.1958); A.L.R.2d *5 118 given with the All However, prejudice slides. defend- evidence tends to stake, jury, pictures court exception.
ant’s life this should not and are no Just why very anyone guess. supposed hazard a The slides could well should ever have a tipped rejected picture scales in favor of the death colored should be because penalty.8 it any true given shows a likeness of scene escapes me. One would think that of The counsel for defendant did not pictures, two accurately por- one more objection make the proper admission traying the scene the proper would be one However, of the slides. this court will place in evidence. technicality such allow to influence picture may The fact that a be its decision in a case as this.9 such is no reason it excluding from evidence Because trial court abused its discre- if it is competent otherwise relevant. permitting tion in evidence slides into It is a matter of discretion with the trial aspects other doubtful because of the judge to probative determine whether the trial, this case is and re- reversed picture value outweighs pos- manded for new trial. sible might adverse effect pro- which be duced jury. shown to the CROCKETT, J., HENRIOD, J., C. 852(l)c. Criminal Law This dis- § C.J.S. concur. part cretion on the judge of a trial to ad- mit reject evidence should not be in- ELLETT, (dissenting). Justice by terfered appellate with an court unless part I dissent from ‘that of the main manifest error is shown. opinion holding that the trial court abused case appeal the defendant on admitting colored discretion in- slides complains because pictures colored some place, pic- In the evidence. first colored were admitted into evidence and claims that exactly tures should dealt with same prejudiced against him pictures. white pictures black and All gruesome appearance reason of are admissible evidence if tend to pictures. those prove a matter which would be relevant testify orally. for a witness It pictures is true that the taken C.J.S. Criminal Law 852(1)a. When deceased before § had been removed from competent are thus there cannot be his bed showed a considerable amount proper objection made to them on the bedding. blood his face He and on ground they may prejudice the jury. lying with his folded his arms across People Jackson, Cobo, 9 Ill.2d 138 N.E. 9. State v. Utah 60 P.2d (1956). (1936). 2d 528 asleep. argued erred exactly as he were He It the court if chest face, photographs. one could the admission of certain holes had two photographs scalp what had had been looking tell at the holes show the deceased, removed caused from the skull of them. exposing cer- fractures skull and plea of not entered a The defendant had fleshy part tain the head and shoulders incumbent on guilty, objection of the deceased. made is *6 that beyond doubt prove a reasonable that the and in- so are means. caused felonious death was flammatory, jurors the of the were minds pictures of let the see Whether thereby. ap- prejudiced so do not We the within the scene a matter actual was praise the doctor testified them. While judge. the trial sound discretion of wounds, descriptive the in terms the of proved, had be of The cause death photographs gave the a ex- visual body. the autopsy was an on and so there testimony. planation his be of It must two metallic as to The doctor testified appellant standing that remembered was cranium of he inside the found substances plea guilty photo- his on of not when the from traced the course the deceased and graphs were The admitted. state was probe metal the with a in head holes put proving to the task of the essential through placed the holes to which de- elements of crime. Whether substances were place metallic where fatally injured ceased an issue proper for and found. It was relevant jury. extent to be determined was shot that the deceased show State to atrocity and the and nature of wound bed, metallic in and these asleep while ques- the crime material also were photographed to probes in head were though Clearly, photographs, tions. the bullet. show the course of cumulative, corroborate the served to before courts This matter has been testimony were doctor’s and admissible Union, every state in practically purpose. [Citations omitted.] be well settled to the law seems to and photographs rests The admission of no error judge committed effect largely the discretion the trial be permitting pictures to shown these ordinarily and will not court decision case. say the court disturbed. We cannot very instant one A similar to the case abused discretion. 716, Johnson, 57 N.M. is that State v. other cases from the sampling A 282, wherein (1953), at 284 page 263 P.2d is listed below. various states it is said: 120 Bucanis, Huff, 240, 138 A.2d v. A.2d
In State N.J. N.J. pic- (NJ.1958), photographs A.L.R.2d 760 a 13 (1954), four were in- ture, evidence taken was admitted into showing troduced into evidence the body pages during autopsy an At grave shortly victim. of the in a deceased 742-743, pages 742 the court A.2d after it had been therefrom. removed these Two of ad- were color and their said: challenged upon mission was the basis to, S-26, objected photograph unnecessary, “secondary, were per- autopsy after the taken been incompetent” irrelevant and were level formed. view is from low “gruesome” and “horrified and sickened body. por- and close to the It shows a inspecting those photographs.” We torso, hip, right tion of all “Photographs unpleasant held: right arm and head of the de- gruesome aspects of a murder case are Appellant accurately describes ceased. not objectionable alone, for this reason subject: “Incisions had made been and their frequently admission has been allowing the flesh to be retracted to ex- sustained,” many citing al- of the cases pose organs the abdominal the inner ready For the mentioned. first time we structure of the In the picture chest. approved the photographs, use of color exposed knife on the examiner’s lies saying there logical why was no reason portion abdomen, sponge they should not be admitted into evidence other instruments are the table in *7 subject to the same re- limitations and foreground the immediate the and in already placed strictions upon black and subject corner of the table the beside white photographs. lie organs which have been removed. In Commonwealth v. Ballem, 386 Pa. subject’s appears The head been to have 123 murder, A.2d the (1956), charge 728 was supported eye the partly left is identity and the of the victim was in issue. open.” [*] [*] [*] [*] [*] [*] hand. While alive This the hand was severed victim had a scar from on one the Our more involving recent decisions body, transparency of said hand was question judice held, the sub projected onto a screen for the see substance, that mainly, admission is if in determining identity the the of victim. entirely, the within discretion the Pennsylvania Supreme The Court held at judge trial whose will decision not be page 732: overturned for save marked abuse. * * * Pistols, crime, fruits the
[*] [*] [*] i}c [*] [*] clothing, parts the body of the person succinctly express- the the killed, everything pertaining to crime adherence to views Johnson, ed in v. 198 La. 3 So. in its consideration State will aid which 556, that, guilt photographs 2d are and the where (alleged) crime admissible, accused, they is admissible. the fact that are so innocence of the gruesome prejudice these ob- that tend to The admission or exclusion of rejecting is photographs is not a for jects particularly of valid reason * * * them [Emphasis the sound dis- which is matter within evidence. and the fact Judge, of the trial cretion added.] is not sufficient picture
that a is Moore, (Mo. 303 S.W.2d * * * exclude it. 1957), prosecuted the defendant was Solomon, 222 La. So. In State v. that murder of his He claimed wife. Supreme Court (1952), the Louisiana pic- 2d it was reversible four error to admit question that had before it the same showing tures deceased the wound presented The court in the instant case. portion upper and that a of the chest and page said at 484: away by left forearm been blown blast gun. State offered picture was tendered theory exhibit on the that the location of Dr. testimony of connection with the the wound that acted showed after it had been identified Wallace Clark consciously and took accurate aim when upon person him that whom firing gun. The Missouri it performed autopsy. And, he when page correctly at sets forth offered, counsel did not defense following language: law in the object it was ground first gruesome. contrary, claimed On admissibility this The rule as to the it because was inadmissible sort of visual is well settled. evidence incomplete identification of Dr. Clark character Demonstrative evidence of this “ * * * proved as the state had not is admissible if it tends to connect it left body the time who had from crime, prove the accused with the or to barge up until showed deceased, identity or show morgue.” any rel- wound, nature of the or throw this, light matter at
But, photograph evant a material aside from Defendant clearly for identification issue. admissible [Citations omitted.] sort concedes admission of purposes and in corroboration of also largely the discre- of evidence is within proces’ reference Coroner’s with verbal *8 court, that tion of the trial but contends description and the of the wounds to our, exhibits, court, admitting the Albeit, reiterate cause death. we pho- discretion, saying wounds, abused its that the clearly were admissible. Even tographs unnecessary though were should did the kill- defendant admit identity have “the ing, been excluded because he did not admit intent to kill deceased, body position of the may and the ma- nature of the wounds be exactly point. nature of had been terial pictures wounds on that The showed precisely by evi- clearly other established nature of the wounds more dence.” than the testimony of could. witnesses sjí sj; ;¡s we there was evi-
Even if assume that dence all of facts shown the material In the position instant case the of the by photographs follow does not probes metal clearly shows that the course In exhibits were inadmissible. of the practically parallel bullet was to the Tyson, 1242, body State v. S.W.2d victim, 363 Mo. photo- of the and from the relat- [4], graphs we find this statement jury introduced in evidence the ing application of the “It is rule: could that asleep believe in bed objection not a valid that have witnesses the time he was shot. by photographs testified to matters shown allowing pictures Before be seen pictures because clearer im- give much by case, bn its this court pression any many things oral than own had the motion excused the description and is the reason for that pictures projected screen, “so that onto
using them.” [Citation omitted.]
op-
may
counsel
have an
object
them,
portunity
they
Our
desire
own
has
if
also
*
* *
after
seeing
going
matter before
case
them.
am
in the
of State v.
I
Woods,
they
ask that
215(1923).
62 Utah
220 P.
In
shown on
screen
presence
that
of the
so that
case the admission into evidence of
out
picture
body
may
objection
counsel
of the
of defendant’s
voice an
if
burned
objection.”
approved
wife was
this court.
Russell,
106 Utah
taken after her death and
her
trial
did not
court
abuse
discretion
*9
pictures,
admitting into evidence these
es-
as
case,
we have
the instant
in
and in an-
pecially
objection
suggested
swering
when no
that matter said:
by
ground
on the
that
there was
counsel
He contends that
the court erred in
inflammatory about
anything gruesome or
permitting photographs
of
ob-
them.
jects
go
jury.
the
to
to
a con-
pictures
The
were taken to show
complete
A
assignment
answer to this
quest
in his
by
pathologist
the
dition caused
is that
objection
the ad-
no
was made to
There
the
of death.
determine
cause
to
pictures
mission
in
in evidence of the
suggest
nothing whatsoever
to
question.
any event,
admissibility
In
removal
participated in
had
of
competent,
shown to be
rel-
de-
the cranium
of the brains from
beyond controversy.
evant and material is
people unaccustom-
might
It
be that
ceased.
qualification
A
of the rule based
sight
operations
find the
seeing
ed
would
degrees
unpleasantness
produce
would
be sick-
human head to
of the inside of a
nothing but confusion in the law.
ening
revolting, but that does warrant
engen-
opinion
Cobo,
The
be
main
passion
would
relies on State
belief that
v.
pic-
89,
952,
90 Utah
authority
when such
60 P.2d
against
dered
the defendant
this court to reverse the
on the screen.
lower court in
tures were shown
instant
point
case on a
not raised at trial.
having
wished to avoid
Had defendant
The Cobo case involved an
in-
erroneous
jury
he could
pictures,
see the
given
struction
in that the trial
re-
as a
stipulated
Hall died
that Kenneth
court
phrase
used the
murder in the first
he was
sult
shot
face while
degree when it
vol-
should have used
no
lying in
This would have been
bed.
untary manslaughter.
fail-
The court also
fired
admission that he
the one who
ed to tell
constitute
this,
but
shots. He didn’t have to do
hilling
crime
voluntary manslaughter,
complain
ought
because
now
must
speaking
or intentional.
zvillful
proved
the crime
State
those elements of
case,
error in
Cobo
this court
degree
of murder in the first
which were
said at 90 Utah
when error The verdict of murder the first the face the man- record and to without recommendation was warranted accused, prejudice the court ifest a fair evidence. defendant had power and to has error jury, to notice such trial an and I think before unbiased same, ex- though correct the no formal this conviction should be affirmed. ception ruling. was taken TUCKETT, J., dissenting concurs in the pal- regarding such That which was said ELLETT, opinion of J. hardly
pable instructing errors in *10 competent applies evi- admission of
dence which is first to counsel and shown objection
then to the without valid thereto, made in the is the situation case.
instant
gruesome
Since most
involving
cases
on television nights ago. few Utah. given evidence in this case May 20, 1968. would finding warrant a that the defendant guest deceased;
was a in the home of
that while the slept, the deceased defendant him rifle;
shot twice with a .22 caliber immediately sold the murder
weapon and rifle; high-powered deceased’s
and that defendant stole the deceased’s sta- wagon
tion get intending to Old
Mexico down the back roads from Las
Vegas, Nevada, where he was arrested.