State v. Hennis

Justice Mitchell

dissenting.

In my view, the majority correctly states in detail the rules of law concerning the admissibility of photographs for illustrative purposes and then proceeds to misapply them. Therefore, I am unable to join in the majority’s conclusion that the trial court abused its discretion in permitting the introduction of slides and photographs for illustrative purposes in the present case. Accordingly, I dissent from the majority’s decision to award the defendant a new trial.

As I do not find the State’s evidence nearly so weak nor the eyewitness identification testimony nearly so “tenuous” as does *288 the majority, a brief review of what some of the evidence for the State tended to show is perhaps in order at the outset. In May 1985, Kathryn Jean Eastburn and her husband Gary Eastburn, a Captain in the United States Air Force, lived in Cumberland County with their three children: five-year-old Kara, three-year-old Erin and twenty-month-old Jana. On the evening of Thursday, 9 May 1985, Mrs. Eastburn left Kara asleep in the home and went to a neighbor’s with Erin and Jana to borrow some milk for the children’s breakfast. Mrs. Eastburn and the two children left the neighbor’s house at approximately 8:00 p.m. and returned home. Mrs. Eastburn, Kara and Erin were not seen again alive.

When Captain Eastburn made his customary Saturday telephone call to his family on the morning of Saturday, 11 May 1985, he received no answer and became alarmed. As a result of further telephone calls by Captain Eastburn, various law enforcement and military personnel went to the home from time to time on Saturday and Sunday, but no one answered the door or responded to a note left for Mrs. Eastburn to call her husband. Law enforcement officers entered the home shortly after noon on Sunday, 12 May 1985, and found Mrs. Eastburn, Kara and Erin dead. Each had been stabbed numerous times and had had her throat cut. The baby Jana was in her crib unharmed. Copies of the local newspaper for Friday, 10 May 1985, Saturday, 11 May 1985, and Sunday, 12 May 1985, were found on the front lawn of the home. The newspaper for Thursday, 9 May 1985, was found inside the home.

At approximately 3:30 a.m. on Friday, 10 May 1985, Patrick Cone was walking past the driveway to the Eastburn home. He saw a man he positively identified as the defendant walking down the driveway from the direction of the home wearing a toboggan cap and black jacket and carrying a plastic garbage bag over his right shoulder. The defendant passed within a few feet of Cone and said to Cone: “leaving a little early this morning.”

Later that morning, Cone told his father what he had seen and pointed out the Eastburn house to his father as the two men went to work. When Cone arrived at work, he told others what he had seen.

Cone’s father testified that Cone had come home around 4:00 a.m. When they left for work, Cone pointed out the Eastburn house and told his father that it was the house someone had *289 broken into. He told his father that he had seen a man coming out of the yard with a bag on his shoulder and described the man as “a big white guy.” According to information given the police by the defendant at the time of his booking on 16 May 1985, the defendant was six feet four inches tall and weighed 220 pounds.

After arriving at work, Cone told his co-worker Clarence Bricky that someone had broken into a house and that he had come so close to Cone that Cone could shake his hand. Cone described the man’s dress and stated that “he was about one big white dude.”

Cone also described the incident to his co-worker John D. McCoy. He told McCoy that the man he saw “was a real big white guy; and that he had a plastic bag of some kind on his shoulder.”

After the bodies of the victims were found, numerous items were discovered missing from the Eastburn home. The missing items included Mrs. Eastburn’s wallet which had contained a twenty-four hour bank card, a metal lockbox which had contained numerous papers including the code for the use of the twenty-four hour bank card, bath towels and bed linens. An empty box of Glad Bag plastic trash bags was found on the clothes dryer in the home.

The missing twenty-four hour bank card belonging to Mrs. Eastburn was used twice after Mrs. Eastburn was last seen alive. The first occasion was on the night of Friday, 10 May 1985. The second occasion was on the morning of Saturday, 11 May 1985. One hundred and fifty dollars in cash was obtained from a bank teller machine on each such occasion. The card was not used after the defendant’s arrest on 15 May 1985.

Bank records reflected that on one of these occasions Mrs. Lucille Cook used her bank card at the same location within four minutes after Mrs. Eastburn’s card had been used there. Mrs. Cook testified that, as she arrived at the teller machine, she observed an unusually tall man in his twenties with blonde hair. He entered a light colored two-door automobile. Mrs. Cook observed him for at least a minute from distances of from six to twenty feet. She identified the defendant as looking like the person she saw at the bank. When asked whether she was positive the defendant was the man she saw, she responded: “If it’s not *290 him, it looks like someone just like him.” “It looks like the man I saw at the bank.” “If it’s not, it looks just like him ...”

Other evidence indicated that the defendant drove a white Chevrolet Chevette. Various witnesses testified that they had seen that white Chevette or one like it near the home of the victims late on the evening of Thursday, 9 May 1985. One witness testified that she saw a tall, white, light haired, well-built man walking up the street at about the time she noticed the car. The defendant had been observed sitting in his white Chevette across from the victims’ home between 11:15 a.m. and noon on Thursday, 9 May 1985, watching the house.

Other evidence for the State tended to show that about 9:30 a.m. on Saturday, 11 May 1985, the defendant began systematically burning something in a barrel in his backyard. The defendant would pour a flammable liquid in the barrel, and fire would blaze five to six feet high. The defendant at times stirred the fire with a stick. He was seen pouring such flammable liquids and stirring the fire all during that day. Garbage service was regularly provided to the area on a weekly basis, and the defendant’s neighbors had never seen him engage in such burning activities previously. When the burned debris in the barrel was examined, several types of material were found and identified as follows: jersey knit material, such as that used in tee shirts; terry cloth material, such as that used in washcloths and towels; woven materials, such as that found in sheets or linens; and various unidentifiable small portions of papers.

The State introduced an abundance of evidence in addition to that I have mentioned. Further discussion of such evidence would serve little purpose here, however, given the issue the majority finds determinative on appeal. I turn, therefore, to the issue of the propriety of the admission into evidence of the slides and photographs to illustrate the testimony of the witnesses — the issue the majority finds determinative.

The trial court conducted a hearing upon the defendant’s motion to exclude the photographs of the crime scene and of the bodies at the autopsies. After reviewing the photographs and slides, the trial court excluded sixty-four of the ninety-nine photographs the State intended to offer. The trial court concluded that thirty-five of the photographs could be received in evidence *291 at trial; nine taken at the scene of the crimes and twenty-six taken during the autopsies.

When considering first the nine photographs taken at the crime scene, it must be borne in mind that the bodies of three mutilated victims were involved in this case, and that they were found in two different rooms in the home. I believe the trial court did not abuse its discretion in allowing three photographs of the body of each victim at the scene to be introduced to illustrate the testimony, because I do not agree with the majority’s conclusion that the trial court’s ruling in this regard was so manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. When, as here, such photographs are properly authenticated, they may be used to show “the condition of the body when found, its location when found and the surrounding scene at the time the body was found [and] are not rendered incompetent by the portrayal of the gruesome events which the witness testifies they accurately portray.” State v. Elkerson, 304 N.C. 658, 665 , 285 S.E. 2d 784, 789 (1982).

With regard to the twenty-six photographs of the bodies taken during the autopsies, it must again be borne in mind that three bodies were involved and that each bore many wounds in many locations on more than one side of the body. Additionally, each victim’s throat had been cut in a manner commonly described as “from ear to ear” and, in at least one instance, almost decapitating the body. The fact that numerous photographs and slides were required to properly illustrate the testimony of the forensic pathologists concerning all of these wounds was a fact established by the murderer when he chose to kill and mutilate the woman and her young children and not the responsibility of the trial court, the State, or the witnesses.

It is true that at least two of the autopsy photographs portrayed matters already portrayed in two others. Although we have cautioned against the use of an excessive number of photographs depicting the same scene, I do not find the repetition here sufficient to justify awarding the defendant a new trial on the ground that the trial court abused its discretion.

The majority is also concerned by the use of the reproduction of the photographs on slides which were then projected in the courtroom on a screen three feet and ten inches in height by five *292 feet and six inches in width. It must be remembered that this screen was placed on the opposite side of the courtroom from the jury in order that all jurors might see it as the witnesses testified. Had it been much smaller, one may doubt whether all of the jurors would have been able to see the slides used to illustrate the testimony.

The majority also seems to express concern that the photographs and slides were in color and to be of the opinion that this has something to do with the decision whether to admit or exclude such photographs. I do not agree. The victims lived and most certainly died “in color,” and I see nothing unfair or untoward about demonstrating the crime scene and the victims’ bodies in that light.

In my view, the photographs and slides complained of were properly introduced as illustrative testimony — both for determining the guilt or innocence of the defendant and for sentencing purposes —as each was relevant to illustrate the condition of the bodies or the crime scene. Additionally, they tended to establish the manner and means by which the killings were carried out, including the force used, the dealing of lethal blows after the victims were helpless, the nature and number of the wounds, and the extreme brutality of all of the killings. Therefore, they were relevant as to the elements of first-degree murder as well as to illustrate the “nature of the crime” for sentencing purposes.

The slides and photographs were gory and gruesome and may even have been “macabre” as stated by the majority. However, that fact as well as the number of photographs required to illustrate testimony concerning all the wounds inflicted on the victims was the result of the nature of the crimes committed by the murderer who left the bodies of the woman and small children in such a mutilated condition — facts which the State was entitled to establish.

The trial court reviewed all of the photographs taken by the State and excluded most of them. I cannot agree with the majority that the trial court’s careful decision to allow the remainder of the photographs to be introduced into evidence was manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. Therefore, I cannot agree with the majority that the trial court abused its discretion in admitting *293 the photographs and slides. Accordingly, I dissent from the majority’s decision to award the defendant a new trial.

The decision of the majority awarding the defendant a new trial makes it unnecessary to consider or decide the issues raised in the defendant’s assignments of error relating to the sentencing proceeding conducted in this case. Without reaching such issues, it suffices here to say that some of them, at least, are substantial in nature. As always, the trial court will be required to exercise extreme caution in conducting the sentencing procedure at a new trial and in instructing the jury with regard to sentencing.

Justice Meyer joins in this dissenting opinion.