William M. Holmes, Bend, for appellant. With him on the brief was Cash R. Perrine, Bend.
John M. Copenhaver, Special Deputy Dist. Atty., Redmond, for respondent. With him on the brief was Warren H. Albright, Dist. Atty., Madras.
En Banc. McALLISTER, C. J., and Rossman, Perry, Sloan, O'connell, Goodwin and Lusk, JJ. Sloan, J., joins in this opinion.
GOODWIN, Justice. A jury having found Jeannace June Freeman guilty of first-degree murder, without recommending life imprisonment, the judgment of death was mandatory. Oregon Constitution, Art. I, § 37. The appeal is, accordingly, automatic. ORS 138.410.
On May 11, 1961, the bodies of two children were found at the bottom of Crooked River canyon in Jefferson County some 300 feet directly below a scenic viewpoint in Peter Skene Ogden State Park. Within a few days the children were tentatively identified as those of one Gertrude Nunez, of Oakland, California. On the evening of May 16, Miss Freeman and Mrs. Nunez were taken into custody by Oakland police officers. Freeman gave the Oakland police a written statement which contained admissions that tended to incriminate her. The next morning Freeman consulted an attorney from the public defender's office. The attorney advised her to remain silent and to fight extradition. She disregarded this advice on both counts.
On May 18, Freeman waived extradition and on May 20 was brought in custody to Bend, Oregon, where
she was lodged in the county jail. The next day, a Sunday, Freeman was taken before a court reporter, and in the presence of the district attorney and two police officers dictated a statement which was used at the trial. In this statement, Freeman did not admit killing either child but she did admit that she was at or near the Crooked River viewpoint at the time the children were thrown over the precipice. (At this time, and throughout all her statements, as well as at the trial, Freeman said that Nunez had thrown both children into the canyon.) Freeman apparently spent Sunday and part of Monday in the company of the police officers. She visited the scene of the crime, and told the police where the children's clothing could be found.
Nunez, meanwhile, was apparently telling the police the story she was later to tell the jury in the case at bar, i. e., that she had thrown her four-year-old daughter into the canyon and that Freeman had thrown the six-year-old boy into the canyon.
On Monday, May 22, Freeman was taken before a justice of the peace in Jefferson County and there she apparently joined in a request by the district attorney for a continuance of the preliminary examination required by ORS 133.510 et seq. The record does not reveal the date of the adjourned examination, but it must have occurred within a day or two, for on May 29 Freeman and Nunez were separately indicted for the first-degree murder of each child. The state elected to try Freeman first for the murder of the boy. Nunez pleaded guilty to the murder of the girl.
The record reveals that counsel was appointed for Freeman on June 2. After certain motions and demurrers were interposed and ruled upon, an amended indictment was filed. On September 5, 1961, the trial
commenced. It continued through September 15. The assignments of error all challenge rulings of the court in receiving certain evidence. (The appeal also concerns the legal significance of the events which occurred between Freeman's arrest on May 16 and the appointment of her defense counsel on June 2, but these questions do not involve rulings made at the trial.) We shall first consider the assignments of error.
Three assignments of error challenge the admissibility of testimony from medical and other witnesses concerning the condition of the body of the girl. Timely objection was made on the ground that such testimony was irrelevant under an indictment which charged Freeman with killing the boy. Freeman contends that most, if not all, the evidence about the death of the girl was prejudicial to Freeman's defense, and that the prejudice thereof outweighed any probative value such testimony might have had in her case.
It was the state's theory of the case that the killing of the two children was planned and carried out by Freeman and Nunez in order to rid themselves of the inconvenience of having small children about the premises where Freeman and Nunez were carrying on a lesbian relationship. (Freeman admitted the character of the relationship.) Nunez testified without objection that Freeman felt that the children interfered with the enjoyment of their relationship, and that the two agreed that the children should be disposed of. Nunez also testified that she and Freeman made plans to do away with the children while driving with the children from Oakland, California, to the scene of the crime.
The state contended, and the proof tended to show, that the murders were committed practically simultaneously;
that the motive was identical in each case; that the probable cause of death was substantially the same in each case; and that the injuries which resulted in mutilation of the bodies had sufficient similarity in each case to show a common scheme.
The state argues that it was necessary to prove how the girl died and the events leading to her death in order to rebut possible defenses that the death of the boy might have been an accident or perhaps the result of some spontaneous or impulsive act not amounting to first-degree murder. In view of the burden placed upon the state by the indictment for first-degree murder, the duty on the part of the prosecution to produce the challenged testimony seems clear. It was not error to receive the evidence. There is no question but that the prosecution may use evidence which includes proof of other crimes if that evidence tends to prove motive or design. State v. McDonald, 72 Adv.Sh. 975, 361 P.2d 1001; State v. Schleigh, 210 Or. 191, 310 P.2d 358; State v. Reyes, 209 Or. 595, 629, 303 P.2d 519, 304 P.2d 446, 308 P.2d 182; State of Oregon v. Long, 195 Or. 81, 244 P.2d 1033. Under all the circumstances, the evidence objected to was relevant, and, while it may have had grave consequences for the defendant, its prejudicial effect was only incidental to its probative value in meeting the burden upon the state to prove premeditation and malice.
Other assignments of error challenge the receipt in evidence of certain photographs of the broken bodies of the two children. Timely objection was made to each of the pictures of the boy's body on the ground that each picture was unduly gruesome. Objections were likewise made to each picture showing the girl's body. In addition to the objection that the pictures
of the girl's body were unduly inflammatory, further objection was made on the ground that the same want of relevance attributed to testimonial evidence about the girl's fate made the pictures inadmissible on that account as well. On the score of relevance, what we said about the testimonial evidence of the girl's fate has equal application to the pictures of the girl's body. The evidence was relevant to prove motive or design, and to rebut possible arguments of want of premeditation.
The principal point urged by the defendant against all the pictures is that they were so gruesome as to be inadmissible notwithstanding any relevance they might have had. There can be no doubt that the pictures must have had a profound impact upon the minds of jurors. No normal person could look at the pictures of the torn and broken bodies of the children without a swift and violent emotional reaction. It does not follow, however, that the use of the pictures by the state exceeded the permissible limits in cases of this character.
The general rule is that properly authenticated photographs may be received in evidence so long as they are relevant to an issue in the case. This rule is found in our own cases, e. g. State v. Leland, 190 Or. 598, 227 P.2d 785 (affirmed, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302) and is probably the majority rule. See Annotation, 159 A.L.R. 1420. In California, Traynor, J., stated a qualification of the rule this way: 'Although it is error to receive in evidence gruesome photographs of a homicide victim designed primarily to arouse the passions of the jury, ...