State v. Poe

441 P.2d 512, 21 Utah 2d 113, 1968 Utah LEXIS 598

• Court: Utah Supreme Court
• Decided: June 4, 1968
• Docket: 10716
• Status: Published

Opinions

CALLISTER, Justice:

Defendant, Roy Lee Poe, was convicted of the first degree murder of Kenneth Hall. The murder occurred in St. George, Utah (population about 5,130), and the trial was held there. The deceased had been a lifelong resident of the community, whereas the defendant was a comparative newcomer. The jury, in returning its verdict of guilty, did not recommend life imprisonment.¹ Whereupon, the court pronounced the death penalty.²

There was sufficient evidence to sustain , the jury’s verdict and upon appeal defendant does not contend otherwise. Rather, he claims that several errors were committed during the trial each of which warrant a reversal of the conviction and a new trial. If this court should not deem any one of the alleged errors to be prejudicial, then he contends that their cumulative effect amounted to a denial of a fair trial.

Defendant first contends that the trial court committed prejudicial error in placing the sheriff in charge of the jury during its deliberation. The sheriff had testified as to his investigation of the Hall home wherein the murder had taken place and the victim’s body discovered. However, his testimony was routine and did not link the defendant to the crime. As jury bailiff he had no personal contact or conversation with any of the jurors. They retired to the jury room, remained therein for only three hours and 20 minutes when they returned and announced their verdict.

The foregoing facts distinguish this case from Turner v. State of Louisiana,³ relied upon by defendant. In that case two deputy sheriffs who were key prosecution witnesses were placed in charge of a sequestered jury. They drove the jurors to and from cafes for meals and to and from their lodging each day, conversed with them and ran errands. The Supreme Court stated at 379 U.S. 473, 85 S.Ct. 550:

* * * It is to be emphasized that the testimony of (the deputies) was not confined to some uncontroverted or merely formal aspect of the case for the prosecution. * * *

* * * We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial. * * *

Perhaps it might have been a wiser course for the trial court to have designated someone other than the sheriff as jury bailiff, but under the circumstances we do not deem it to have been error, least of all, prejudicial error.

As a second point, defendant contends that he was denied a fair trial because of “the community pattern of thought as expressed by potential jurors and (because) of the proximity of relationships which existed between members of the jury and witnesses for the prosecution, the victim, the prosecutors, and the defendant.” It cannot be disputed that a large majority of the prospective jurors were aware of the crime and some of its purported facts. This could hardly be otherwise in a sparsely populated community (Washington County, of which St. George is the county seat, has a population of 10,-271). However, the trial judge carefully and exhaustively examined the panel and the prospective jurors. There was selected a jury of 12 who had neither formed an opinion or, if they had, it would not prevent them from basing their verdict solely upon the evidence. We cannot say that it was biased or prejudiced. Furthermore, the jury panel was passed for cause by the defendant.

Nor is it strange that members of the jury were acquainted with the sheriff, some of the witnesses for the prosecution,⁴ the victim, the defendant, and the prosecutors. However, we are unable to find in the record wherein these acquaintance-ships were prejudicial to the defendant.⁵

As another point, defendant alleges that the trial court committed prejudicial error by commenting on the credibility of a prosecution witness in such a manner as to bolster his testimony before the jury. We have examined the record with respect to this contention and find it to be without merit.

Finally, defendant contends the trial court abused its discretion in admitting some colored slides into evidence and permitting them to be displayed to the jury by means of a slide projector and screen. With this contention, we are in agreement.

To begin with, the identity of the deceased, his death and its cause had already been established. Black and white photographs had been introduced showing the victim lying in his bed, in a sleeping position, with two bullet holes in his head. The colored slides were made during the course of an autopsy. To describe them as being gruesome would be a gross understatement. One of them, for example, depicted the deceased’s head, showing the base of the skull after the skull cap and brain had been removed by the pathologist. The skin is peeled over the edge of the skull showing the empty brain cavity. Another is a top view of the empty cavity. They would have been gruesome in black and white but the color accentuates the gruesomeness.

Initially, it is within the sound discretion of the trial court to determine whether the inflammatory nature of such slides is outweighed by their probative value with respect to a fact in issue. If the latter they may be admitted even though gruesome.⁶ In the instant case they had no probative value. All the material facts which could conceivably have been adduced from a viewing of the slides had been established by uncontradicted lay and medical testimony. The only purpose served was to inflame and arouse the jury.⁷

It must be remembered that the jury in this case not only determined the question of guilt but also fixed the punishment itself. The only use of the slides from the prosecution’s standpoint was to arouse the emotions of the jury so that they would not recommend life imprisonment. It could very well be that the jury would have returned the same verdict absent its view of the slides. However, with the defendant’s life at stake, this court should not hazard a guess. The slides could very well have tipped the scales in favor of the death penalty.⁸

The counsel for defendant did not make the proper objection to the admission of the slides. However, this court will not allow such a technicality to influence its decision in a case such as this.⁹

Because the trial court abused its discretion in permitting the slides into evidence and because of the other doubtful aspects of the trial, this case is reversed and remanded for a new trial.

CROCKETT, C. J., and HENRIOD, J., concur.

1 . As provided in Sec. 76-30-4, U.C.A. 1953.

2 . In the absence of the - jury’s recommendation of life imprisonment, the court is required to impose tlie death penalty. State v. Romeo, 42 Utah 46, 128 P. 530 (1912).

3 . 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).

4 .Most members of the jury were also acquainted with one or hoth of defendant’s counsel.

5 . It is to be noted that defendant did not move for a change of venue.

6 . 73 A.L.R.2d p. 787.

7 . See Oxendine v. State, 335 P.2d 940 (Okl. Cr.1958); 73 A.L.R.2d 802.

8 . People v. Jackson, 9 Ill.2d 484, 138 N.E. 2d 528 (1956).

9 . State v. Cobo, 90 Utah 89, 60 P.2d 952 (1936).