Meredith J. Cohen and Edward J. Hanlon, Jr. & Partners, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Lakeland, for appellee.
PIERCE, Chief Judge.
Appellant Kenneth Ray Wright appeals to this Court from a judgment of conviction pursuant to an adverse jury verdict entered against him of first degree murder with recommendation of mercy and a sentence to life imprisonment.
Wright was indicted in Orange County but venue was later changed to Lee County where in due course trial was held before a jury, culminating in the result aforesaid. Numerous motions, documents, and other pre-trial pleadings were filed and numerous hearings held, both in the Orange County Circuit Court before removal and later in the Lee County Circuit Court after removal. At the trial voluminous testimony was taken. The State's case was built upon circumstantial evidence, and it is obvious from the cold record certified here that deep, intense feeling was engendered on the ultimate issue of guilt or innocence.
The victim, Camellia Jo Hand, aged 8 years, disappeared on Thursday, April 10th, 1969, between 7 A.M. and 8:30 A.M. while walking from her home to school, and was presumably kidnapped and murdered. Two days later, on Saturday afternoon, April 12th, her body was discovered and dug up from a shallow grave not far from where she disappeared, clad only in shoes and socks. Assorted items of clothing and other articles had been buried with her. Numerous stab wounds, abrasions, wounds and fractures were found on her body, and there was some evidence of a sexual molestation. The cause of the death was a brain hemorrhage from blows to the head from a blunt instrument. The body of her pet dog, who was following her to school, was found a short distance away from where her body was buried.
It would serve no useful purpose to discuss the evidence as a whole that was adduced at the trial, and indeed it might, in
view of our disposition of the appeal here, be unwise and detrimental. Only so much of the evidence as pertains to the points dispositive of this appeal will be alluded to.
A total of seventy-seven assignments of error were filed notwithstanding the many admonitions of the Supreme Court in previous cases against such a multiplicity of assignments. The record discloses two trial errors, each of which was prejudicial to a fair trial and which require reversal of the judgment appealed. They are (1) admission into evidence of three colored photographs, and (2) failure of the trial Court to define for the jury the essential elements of all the felonies involved in the charge of felony-murder. We pretermit discussion of the remaining assignments of error, none of which we find reversible. We will discuss the two crucial points of reversal seriatim.
(1) The Prejudicial Color Photographs.
Several photographs, 8 in number, and all in color, were admitted in evidence over objection. Three of the photographs, identified as State's Exhibits Nos. 26, 27 and 28, were grossly inflammatory and unnecessary to explain or elucidate any portion of the State's case, and therefore were erroneously admitted.
Exhibit No. 26 depicts the nude body of the victim at the gravesite but in a different position than when her body was found. When first discovered she was on her stomach with her head and body bent over and facing downward, and there is an unobjectionable picture to show this. Exhibit No. 26 shows her body facing in an upright position but with her head pulled up and back, showing the face and upper part of her body from the front.
Exhibit No. 27 was taken at the morgue after removal of the body from the grave and shows a deep stab wound on the left top side of the head, another wound in the left chest, and other lacerations in the abdominal area.
Exhibit No. 28, also taken at the morgue, shows Camellia Jo laid out on her right side in a horizontal position, taken from the rear, showing several stab wounds in the back and a deep, gashing type wound in her upper buttocks.
All three of these color photos were frightful and shocking. The question here is, were they proper to be admitted? And we hasten to observe that, in making that determination, we are not trying to second-guess the trial Judge because we are not dealing with a factual question. There is no dispute as to the condition of the body when found or the location or extent of the wounds. We are dealing only with a question of law as to whether or not, under all the admitted facts and circumstances present in the case, gauged by the applicable legal principles involved, it was proper to admit these pictures in evidence. We do not think so and in allowing them we think the trial Court was in error to a reversal.
In Albritton v. State, Fla.App.1969, 221 So.2d 192, this Court endeavored to lay down the basic ground rules governing the admission of such pictorial evidence according to our understanding of the existing case law.
Albritton involved the death of a sixteen months old girl child named Stacie, a stepdaughter of the defendant Albritton. He was tried and convicted of second degree murder. The State contended at trial that Stacie's death resulted from persistent and brutal beatings and other physical abuse administered to the child by Albritton during the short period of time her mother was living with him. Numerous witnesses for the State gave eye witness accounts of such ill-treatment. Albritton's defense, and he so testified, supported by the child's mother whom he had married in the interim, was that Stacie got the bruises, burns and lacerations on her body from various other sources, such as falling from a truck at a 'Quarter Horse Show', an inadvertent contact with a heated hair dryer belonging
to her mother, picking up a lighted cigarette, falling from a dining room shelf, etc. There was thus a factual issue directly involved, the resolution of which would guide the jury's verdict as to guilt or innocence. This Court in Albritton, after briefly summarizing the evidence bearing upon the conflicting contentions of the parties, said (text 221 So.2d 195):
'In such setting of testimonial conflict between the numerous State witnesses on the one hand and Albritton and his wife Michele on the other, the admissibility of the photographs of the child taken in the hospital comes into clear focus. And it is in such posture of evidence that the propriety of admission of the photographs must be judged.
The fact that the photos were inflammatory and such as would arouse to passion is not alone sufficient to warrant their refusal in evidence. Gragg v. State, Fla.App.1965, 177 So.2d 59; Cullaro v. State, Fla.App.1957, 97 So.2d 40; Pleas v. State, Fla.1966, 184 So.2d 647; Calloway v. State, Fla.1966, 189 So.2d 617. But where admittedly gruesome and reasonably calculated to inflame the minds of the jurors, they can only be admissible by a showing of the prosecution that, not only are the pictures relevant, but also that they are demonstrably material in reconciling or tending to reconcile, some disputed fact in evidence directly pertinent to the charge being tried. (Cases cited.)
If the wounds, bruises and burns on her body, as she lay in the hospital just before her death, were many and aggravated, such as would result from beatings and other physical mistreatment at the hands of Albritton, the charge of second degree murder was made out. If, on the other hand, the bruises, etc., were relatively minor and slight, such as might result from a fall a week before from a truck, or an indoor fall from some wall shelving or burns from a hair dryer, essentially accidental in nature, the charge would not be made out. The location, extent, degree, and severity of the bruises and burns would have a direct bearing in resolving the issue.'
We upheld the introduction of the pictures in evidence in Albritton but we were particular to point out--
'But let us pause to emphasize one thing: if the pictures had not had such a direct bearing upon this most vital issue in the case, in addition to being merely relevant, we would have no hesitation in reversing the conviction. This is so because, while the inflammatory character of pictorial evidence is not sufficient of itself to warrant rejection as evidence, yet where such exhibits though technically relevant throw no light in resolving a material issue of fact, it lacks the necessary evidentiary prerequisite to warrant admission.
We think the sound and logical rule for admissibility is that if the pictorial evidence is not so inflammatory or gruesome as reasonably to prejudice the minds of the jury, the evidence is admissible provided it is relevant to any issue. But if such exhibit is so inflammatory and repulsive as would reasonably produce a prejudicial and exceedingly harmful effect on an otherwise impartial mind, it would not be admissible unless it would throw light upon a vital issue in the case and resolve, or reasonably tend to resolve, a conflict in evidence upon such vital issue.' (Italics in text.)
Thus we held that the photographs were properly received in evidence in Albritton under the carefully charted rules of admissibility set forth. In several other cases photographs have been held properly admitted using substantially the same guidelines. Reed v. State, Fla.App.1969, 224 So.2d 364; Furr v. State, Fla.App.1969, 229 So.2d 269; Jackson v. ...