Opinion
No. 779S177.
Filed April 28, 1980.
EVIDENCE — Photographs — Missing Negatives. — Where negatives are unavailable, photographs of a victim's body may be admitted where evidence that the pictures were fair and accurate representations was presented before the trial court.
Appeal from a previous decision where the Court remanded the cause to the trial court for an evidentiary hearing.
From the Dearborn Circuit Court, Henry A. Pictor, Special Judge.
Affirmed.
Bobby Jay Small, of Indianapolis, Daniel W. Meehan, of Cincinnati, Ohio, for appellant.
Theodore L. Sendak, Attorney General, Victoria R. Van Duren, Deputy Attorney General, for appellee.
This Court rendered a decision previously in this case, reported as Carson v. State, (1979) 271 Ind. 203, 391 N.E.2d 600. In that decision, this Court granted the State's petition to transfer, vacated the opinion of the Court of Appeals, and remanded this cause to the trial court with instructions to hold an evidentiary hearing to determine if certain pictures entered into evidence by the State had been retouched. We held, in that decision, that if the photographs were not in fact retouched, the denial of a continuance to enable defense counsel to procure expert testimony on the matter was harmless error. If, however, the pictures were the subject of tampering, a new trial was necessary. To accomplish this task, we ordered the trial court to release both the photographs and the negatives to defense counsel.
The record discloses that, although the photographs were released to the appellant, the negatives were missing and consequently could not be examined. Nevertheless, evidence that the pictures were fair and accurate representations of the victim's body was presented at the hearing before the trial court. Based upon this evidence, the trial court held that, although the negatives were not available, the evidence supported the fact that the photographs had not been retouched.
Reviewing the finding of the trial court, in accordance with our appellate standards, giving due regard to the prerogative of the trial court as a fact-finder, we hold there is sufficient evidence to support the finding of the trial court that the pictures were not retouched. Thus, any error that occurred when the trial court denied appellant's motion for a continuance during the trial was harmless error.
The trial court is in all things affirmed.
DeBruler, Hunter, Pivarnik and Prentice, JJ. concur.
NOTE — Reported at 403 N.E.2d 330.