February 28, 1969
PETER SCHUSTER, a witness called by and on behalf of the State, having been first duly sworn, was examined and testified, on Rebuttal, as follows:
DIRECT EXAMINATION BY MR. OSER:
Q: State your name for the record, please.
A: Peter Schuster.
Q: By whom are you employed?
A: Dr. Rabin, Coroner.
Q: In what capacity are you employed in the Coroner's Office, Mr. Schuster?
A: Photographer and investigator.
Q: How long have you been an employee of the Coroner's Office?
A: Approximately seven years.
Q: During that seven years what have been your duties?
A: To photograph violent death, investigate them for the Coroner.
MR. OSER: Your Honor, the State is going to attempt to qualify Mr. Schuster in the field of photography.
THE COURT: To give an opinion or to testify to a specific photograph?
MR. OSER: Both to give an opinion and testify about a specific photograph, if the Court please.
THE COURT: You gentlemen step up here, please.
(Conference at the Bench off the record.)
THE COURT: We are going to take a five-minute recess. Take the Jury upstairs, please.
(Whereupon, a brief recess was taken.)
AFTER THE RECESS:
THE COURT: Now are the State and the Defense ready to proceed?
MR. OSER: We are ready, Your Honor.
MR. DYMOND: We are ready, sir.
THE COURT: You may proceed.
BY MR. OSER:
Q: Mr. Schuster, how long have you been involved in the area of photography?
A: Approximately ten years in photograph.
Q: Do you have any particular formal education in this area?
A: I hold a degree in photography, Social Science in Photographic Technology.
Q: Where did you receive that degree, sir?
A: Here in town at Delgado Technical Institute.
Q: During your career in photography, do you ever have occasion to give any instructions or teach anywhere?
A: I taught photography a short time.
Q: Where was that?
A: At Delgado.
Q: Mr. Schuster, can you give us an estimate of approximately how many pictures you take and develop during a year's time in the Coroner's Office?
A: Oh, I imagine it is around 5,000 or 6,000 a year.
Q: And do you also have outside photographic work besides that of the Coroner's Office?
A: Yes, I do work on the outside besides the Coroner.
Q: Does that also involve taking and developing and printing of photographs?
A: It does.
Q: Have you ever had occasion, Mr. Schuster, to analyze any of the products of your own work but that -- I mean have you had occasion to analyze photographs that you have taken while in the Coroner's Office?
A: I did, sir.
Q: And can you give me an example of what type of analyzing you have done in the past in regards to photography?
A: Oh, we have done work on -- for example, on suicides where we have to make extremely large ones showing wounds, the scene of the entrance and exit of bullets, pieces of evidence that may be on the floor and from a normal photograph it can't be detected what it is and extremely large ones necessary to analyze this particular piece of evidence.
Q: Have you ever failed to qualify in any of the courts of the Criminal District Court in the field of photography, Mr. Schuster?
A: Never, sir.
Q: Have you ever been qualified in the Federal Courts in the field of photography?
A: I have, sir, I have.
MR. OSER: I tender the witness to Mr. Dymond on his qualifications.
THE COURT: Let's see. Would you state the particular field that you wish to have Mr. Schuster qualified in, state specifically what opinions you wish to elicit. Let's see if I understand. You are tendering the witness as an expert in the field of photography to the end that he can give his opinion and interpret and analyze photographs?
MR. OSER: That is what we are tendering him on, Your Honor.
THE COURT: He is tendered for traverse.
MR. DYMOND: If the Court please, we will stipulate that Mr. Schuster is an expert in the area of taking pictures and enlarging them. Other than that I would like to traverse, because he is offered beyond that scope. Is that right, Mr. Oser?
MR. OSER: Yes, sir.
CROSS-EXAMINATION BY MR. DYMOND:
Q: Now, Mr. Schuster, what training have you had in the interpretation of photographs?
A: Well, during a two-year course; I couldn't tell you the exact time in this two-year course that was given to the interpretation of photographs, but it was part of the course.
Q: Now, just what field did this part of the course that covered interpretation of photographs cover?
A: Enlarging.
Q: Was that identifying objects in photographs?
A: Enlarging and identifying objects.
Q: You have qualified as an expert in that particular field of photography?
A: In other words, have I ever qualified in court as identifying a specific object in a specific picture?
Q: That is correct.
A: I have sir, identified specific objects in specific pictures and enlargements.
Q: Have you ever qualified as a photographic analyst?
A: As a photographic analyst? Not that I can recall as an analyst.
Q: Have you had any particular training in the field of photographic analysis?
A: Part of the two-year course was devoted to this.
Q: How much of it?
A: I couldn't remember the exact specified time. This was seven or eight years ago.
Q: Have you ever even attempted to qualify as a photographic analyst?
A: Not that I can recall, as an analyst.
MR. DYMOND: If the Court please, we submit that the witness is not qualified as an expert in that field.
THE COURT: Well, the Article on expert testimony states in Article 464 of the Code of Procedure: "On questions involving a knowledge obtained only by means of a special training or experience, opinions of persons having such special knowledge are admissible as expert witnesses."
In a footnote it says: "It is not necessary for a person to have scientific professional or technical training in order to be able to draw inferences or conclusions. He may gain such special knowledge from practical experience and observation in his line of work as to qualify him to express an opinion concerning a fact."
(REPORTER'S NOTE: The above quotation is transcribed from the notes as they lie. The reader is referred to the source.)
MR. DYMOND: If the Court, please, this witness has not even had experience in the field of photographic analysis to the extent that would qualify him under that Article.
THE COURT: You are using the word "analysis"; I think the word would more properly be "explain" or "interpret."
MR. DYMOND: Interpretation or analysis.
THE COURT: I am going to rule that Mr. Schuster is qualified as far as I am concerned as an expert in this field because of his practical experience over the years plus his schooling, and I will permit him to give an opinion or interpretation or explain in full.
MR. DYMOND: To which ruling Counsel reserves a bill, making the objection to the qualification of the expert, his entire testimony on the laying of the predicate, the reason for our objection, the ruling of the Court, and all of the testimony up until this point parts of the bill.
THE COURT: Very well. You may proceed, Mr. Oser.
DIRECT EXAMINATION RESUMED BY MR. OSER:
Q: (Exhibiting photographs to witness) Mr. Schuster, I now show you State Exhibits S-51 and S-52 and ask you whether or not you have ever seen these exhibits before.
A: I have, sir.
Q: And where have you seen them before, Mr. Schuster?
A: Well, I have had them in my possession. I received them on January 20 from you, sir.
Q: From me?
A: From you.
Q: And how long did you have these pictures in your possession?
A: Till February 13.
Q: Of 1969?
A: 1969.
Q: While these photographs or pictures or exhibits were in your possession, did you have an occasion to do any particular type of work or examination of these exhibits? If so, what?
A: I examined these photographs from January 20 until February 10, 1969 before anything was done with them.
Q: Can you tell me, Mr. Schuster, approximately how much time you spent in examining these photographs during that period of time?
A: Oh, I couldn't estimate the amount of hours, but if I had to, 50 or 60 hours.
Q: Now, as a result of your having examined these photographs -- and I speak more specifically of State Exhibit 51 -- I ask you if you had occasion to examine it and arrive at any conclusion in regard to a specific area depicted in that photograph.
MR. DYMOND: If the Court please, we object to this now on the ground that it has no place in rebuttal. We have offered no testimony in the presentation of the Defense's case concerning these photographs, nor have we offered testimony concerning anything depicted in these photographs. The State is in the midst of rebuttal now, and this is not rebuttal evidence.
THE COURT: I will be glad to hear from the State in reply to Mr. Dymond.
MR. OSER: If the Court please, this witness is being offered in rebuttal in reply to the Defense's testimony that all the shots came from the rear.
MR. DYMOND: If the Court please, I submit that if the Court will examine these photographs, that they have no bearing on the question of whether all the shots came from the rear or not.
MR. ALCOCK: Your Honor, that is a matter of weight; the Jury must decide, not Mr. Dymond.
MR. DYMOND: If the Court please, Your Honor can pass on the question of whether it is rebuttal testimony.
THE COURT: I pass on the admissibility, not the weight -- the weight is for the Jury. I agree with Mr. Alcock that the Jury should determine the weight. Is that your objection?
MR. DYMOND: No, my objection is to the admissibility. They are restricted to rebutting what we put on in the presentation of our case, and these photographs have nothing to do with that.
THE COURT: Well, I think it is relevant, I think it is rebuttal, and I think your objection is to weight, not admissibility. Therefore, I overrule your objection.
MR. DYMOND: To which ruling Counsel reserves a bill, making the question, the entire line of questioning to this witness, the two photographs, S-51 and S-52, the objection, the reasons for the objection, the ruling of the Court and the entire testimony up to now, parts of the bill.
THE COURT: Would you like to rephrase your question?
MR. OSER: I will, I will rephrase it.
MR. DYMOND: Excuse me, Mr. Oser, I would like to have it understood that my bill applies to all questions propounded in connection with these photographs on rebuttal.
THE COURT: Very well. Let it be noted in the record.
BY MR. OSER:
Q: Mr. Schuster, directing your attention to State Exhibit 51, I ask you whether or not
you had occasion to examine any particular area contained in that photograph.
A: I did, sir.
Q: And what particular area did you examine, sir?
A: The right top corner.
Q: And what type of examination did you conduct in regards to the right top corner?
A: I rephotographed it -- copied it in plain words -- and blew this area up to a great proportion.
Q: Do you have any such blow ups or exhibits in your possession, with you, sir?
A: I do.
Q: May I have them?
A: Yes (producing blow ups).
THE COURT: Show them to Mr. Dymond.
MR. OSER: I am, Your Honor.
THE COURT: Are these blow ups?
MR. OSER: Yes, sir.
THE WITNESS: These are, yes, sir.
MR. OSER: What is the next State number, if the Court please?
THE CLERK: Eighty-three.
MR. OSER: I will mark this for identification "S-83."
(Whereupon, the photograph referred to by Counsel was duly marked for identification as "Exhibit S-83.")
BY MR. OSER:
Q: (Exhibiting photograph to witness) I show you, Mr. Schuster, what the State has now
marked for purposes of identification "S-83," and I ask you if you can identify that particular exhibit. If so, how?
A: I can identify it; my signature is on the reverse side of the photograph.
Q: Did you make and develop this particular photograph?
A: I did, sir.
Q: And what did you make this photograph from, Mr. Schuster?
A: From an original 8 x 10, which is marked "S-51."
MR. OSER: We will mark the next one "S-84."
(Whereupon, the photograph referred to by Counsel was duly marked for identification as "Exhibit S-84.")
BY MR. OSER:
Q: (Exhibiting photograph to witness) I now show you that which has been marked "S-84" for purposes of identification, and I ask you whether or not you can identify that
exhibit, and, if so, how.
A: My signature is on the reverse side of the photograph also.
Q: And what does that photograph depict?
THE COURT: What a minute. The signature being on it doesn't mean anything. You took it?
THE WITNESS: It is my signature and I photograph it.
THE COURT: I see. You took it yourself. The fact that your signature is on it -- you actually did the work?
THE WITNESS: Right.
BY MR. OSER:
Q: And what does that particular photograph, "S-84," for purposes of identification,
represent, Mr. Schuster?
A: What does it represent?
Q: Yes. What did you take a picture of, if you did?
A: Took a picture of -- in my opinion, it was a man.
Q: And where did you take that?
MR. DYMOND: Your Honor, that is the type of testimony that we object to this witness being able to give. He is not qualified on it.
THE COURT: Well, I have already qualified him, I ruled on that a few minutes ago.
MR. DYMOND: No, he hadn't given that type of answer. If the Court please, we submit on this type of answer this man is not qualified to give it any more than you or I.
THE COURT: I disagree with you. I ruled on that a few moments ago.
MR. DYMOND: All right. To which ruling again I reserve a bill of exception, making the entire testimony, the exhibits S-83 and S-84, the ruling of the Court, the reason for the objection, and all the testimony parts of the bill.
THE COURT: I ruled, Mr. Dymond, for the sake of the record, that because of his ten years experience and training and schooling he could give his interpretation and could explain a photograph that he took himself.
MR. DYMOND: Very well.
THE COURT: That was my ruling a few moments ago. You may proceed, Mr. Oser.
BY MR. OSER:
Q: Mr. Schuster, can you tell me how S-84 for purposes of identification, came about?
How did you come to take this picture?
A: Upon blowing up S-83 it was evident, in my opinion, that there was a man in the right corner of S-83, so, in turn, S-83 was enlarged and is now S-84.
Q: And in doing these blow ups and taking the pictures and developing of the negatives and the printing of the two exhibits you hold in your hand, did you do that yourself?
A: I did, sir.
Q: (Exhibiting photograph to witness) I now show you what the State marks for purposes of identification "S-85," and I ask you if you can identify that exhibit.
A: I identify it as a copy of a photograph I have taken. My signature appears on the reverse side.
(Whereupon, the photograph referred to by Counsel was duly marked for identification as "Exhibit S-85.")
BY MR. OSER:
Q: Did you take that particular photograph and develop the negative, and print same?
A: I did, sir. Q: And what does that photograph, which is marked "S-85" for purposes of identification, depict?
A: It depicts the top rear corner of S-51. On the left side of the photograph and on the right top corner is an extreme blow up of the man in the photograph.
Q: Am I correct in stating, Mr. Schuster, that S-85 contains S-83 and -84 that you developed?
A: It does, sir.
Q: Now, Mr. Schuster, using State Exhibit 51, can you point out for me the area on that particular photograph where you said after you had a chance to observe and examine this particular photograph, that you saw what appears to be a man?
A: Top right corner right here (indicating).
Q: Can you circle it for me, please, with this fountain pen?
A: The whole area that was photographed originally?
Q: The area in which you found the images, if you found any.
A: (The witness complied.)
Q: (Exhibiting photograph to witness) I show you State Exhibit, for purposes of identification, S-83, and I ask you if you will mark that area also.
A: (The witness complied.)
Q: I ask you the same question with regards to S-84.
A: (The witness marked the exhibit as requested.)
Q: And the same question in regards to S-85.
A: (The witness marked the exhibit as requested.)
MR. OSER: At this time, Your Honor, if the Court please, the State wishes to offer, introduce and file into evidence that which has just been marked for purposes of identification "S-83, S-84," and "S-85."
THE COURT: Is there any objection?
MR. DYMOND: Yes, we object on the same grounds that we objected to the testimony of this witness, Your Honor.
THE COURT: My ruling is the same.
MR. DYMOND: And we would like to reserve the same bill, making these exhibits parts of the bill together with the other material I included in the other bill.
BY MR. OSER:
Q: Now, Mr. Schuster, showing you State Exhibit 85, I ask you whether or not you had an
occasion to make any further copies of S-85?
A: I did.
Q: Do you have them with you?
A: I do.
Q: Would you compare the copies of S-85 that you have and tell me whether or not they were taken from the same negative and represent the same thing as depicted in S-85.
A: It does.
Q: Did you have an occasion, on the copies of S-85, to mark any particular areas on that photograph, on those photographs?
A: I did.
Q: And what areas were those, sir?
A: (Indicating) These two right top corners.
Q: May I have them, please?
A: (Photographs handed to Counsel.)
Q: Mr. Schuster, these fourteen copies, do all of them contain your signature?
A: It does.
MR. OSER: At this time, Your Honor, the State requests permission to display these copies to the Jury before further testimony in connection with this witness.
MR. DYMOND: We join in the request, if the Court please.
THE COURT: Very well.
(Photographs displayed to the Jury.)
BY MR. OSER:
Q: Now, Mr. Schuster, in regards to State Exhibit 85, which I now show you, can you tell me what type of analysis or examination that you performed in the particular areas that are circled, and what the results of your examinations were?
A: Well, this area was photograph, and in reproducing this area to an extremely large (size) it was found -- this man's head was found, this man in this right corner on the larger of the two pictures.
MR. DYMOND: Now, if the Court, please, I object to this witness saying what was on a larger one. If it is larger than these, let him bring it into court.
THE WITNESS: I am speaking of the larger of two on this one sheet.
MR. WILLIAM WEGMANN: The larger of the two circles?
THE WITNESS: Right. The one circled on the left, I blew it up to what is on the right, to about as large as I think this negative could be blown and still be visibly clear.
THE COURT: I believe his question to you was, after the so many hours that you said you examined it, what did your examination consist of. Was that the question?
THE WITNESS: In photographing the particular picture from different angles -- not angles but different areas I should say -- and studying them with magnifying glasses to find out if there were any people in the pictures, this is the only one, in my opinion, I could say is definitely a person.
BY MR. OSER:
Q: And what led to your opinion, Mr. Schuster, in your mind after having examined this
photograph, that that is the image of a man?
A: Because all his features are there. I mean you can see it is a man looking at the photograph.
THE COURT: I have a magnifying glass if you wish to use it, I mean if you wish to make use of it.
THE WITNESS: Now, on the small circle it is much clearer, because the larger you blow up anything the more detail you are going to use, and you can see his head, his collar, his hand, his hair, his eyes, his nose, his whole face as far as I am concerned.
BY MR. OSER:
Q: Can you see anything else in regard to this particular man besides his features, in
your opinion?
THE COURT: Wait a minute (handing magnifying glasses to jury).
THE WITNESS: He appears -- appears to be holding something.
MR. OSER: I tender the witness.
CROSS-EXAMINATION BY MR. DYMOND:
Q: Mr. Schuster, am I correct in understanding that you are testifying under oath that you have a firm opinion that that photograph definitely shows a man in it?
A: In my opinion. In my opinion there is no doubt that is a man.
Q: Is there definitely a gun there, too?
A: Now, I didn't say that. I don't know what that is, I have no idea what that is.
Q: But you can look at that photograph and tell us definitely, in your opinion, there is a man, is that right?
A: That is right.
MR. DYMOND: That is all.
MR. OSER: Your Honor, at this time --
THE COURT: Just a second, Mr. Oser. The Jury is still examining. Why don't you let them finish examining and then I will hear from you.
MR. OSER: I am just asking permission to display the other exhibits to the Jury at the same time, if the Court please.
THE COURT: Very well.
(Photographs displayed to the Jury.)
MR. OSER: If the Court please, the State has no further use of Mr. Schuster, and we ask that he be excused.
THE BAILIFF: Order in court, please.
THE COURT: Gentlemen of the Jury, you're not supposed to discuss with one another what you see, you have to keep that to yourselves and do that later. Don't confer with one another on what you find on there; you may be tempted to do it but you can't do it. I think they are ready to return the photographs.
MR. OSER: May Mr. Schuster be excused from the subpoena, Your Honor?
THE COURT: Mr. Schuster, you are excused, released from the legal obligations of the subpoena.
I see Dr. Rabin. We are going to take a five-minute recess. Take the Jury upstairs.
(Whereupon, a brief recess was taken.)
AFTER THE RECESS:
THE COURT: Just for the record, I had a note from Sheriff Heyd that one of the jurors or maybe more than one was to see a doctor, so we sent Dr. Rabin, the Coroner, up to see him. Now, he has been seeing these jurors every Friday and was intending to go see them this evening at the Rowntowner. It is nothing serious, but that is as far as I can go.