Berry v. State

by the Arkansas Supreme Court

Supreme Court of Arkansas

290 Ark. 232

LAURA BERRY  v.  STATE OF ARKANSAS

Appeal from Miller Chancery Court

No. CR 86-47.---Delivered: Nov. 3, 1986.
Rehearing denied: Dec. 8, 1986.^[1] 

1. CRIMINAL LAW—ADMISSION OF INFLAMMATORY PHOTOGRAPHS IN CRIMINAL CASES—REEXAMINATION OF POSITION BY SUPREME COURT—EMPHASIS ON NEED TO WEIGH PROBATIVE VALUE AGAINST PREJUDICIAL NATURE.—Because of the trial court's carte blanche acceptance of graphic and repetitive pictures into evidence, the Supreme Court is reexamining its position on the admissibility of inflammatory photographs, firmly emphasizing the need for the trial court to carefully weigh the probative value of the photographs against their prejudicial nature, rather than promoting a general rule of admissibility which essentially allows automatic acceptance of all the photographs of the victim and crime scene the prosecution can offer.
2. EVIDENCE—RELEVANCY—PHOTOGRAPHS OF VICTIM RELEVANT IN DEFENDANT'S CASE WHERE MURDER WAS COMMITTED BY ACCOMPLICE.—Even though there was no evidence that appellant administered any of the blows to the victim, the photographs of the victim are not irrelevant because appellant is liable for the conduct of her accomplice, who admitted the crime. [Ark. Stat. Ann. § 41-302 (Repl. 1977).]
3. CRIMINAL LAW—PHOTOGRAPHS OF VICTIM—PROBATIVE VALUE NOT REMOVED BY ADMISSION BY APPELLANT AS TO WHAT PHOTOGRAPHS SHOW—AGREEMENT BY APPELLANT AND STATE ON HOW MURDER WAS CARRIED OUT—EFFECT.—The fact that appellant admitted to everything shown in the photographs does not necessarily remove all probative value, since this alone does not preclude admission; however, where, as here, the state and the defendant agree not only on the cause of death and the brutal manner in which it was carried out, but also on who inflicted the injuries and his "extreme indifference" in doing so, that has a bearing on the probative value of the photographs.
4. CRIMINAL LAW—PHOTOGRAPHS OF VICTIM LIMITED TO CAUSE AND NATURE OF DEATH—REASONABLE NUMBER DEPICTING INJURY AND CRIME SCENE ADMISSIBLE.—The probative value of the photographs in this case was limited to the cause and nature of death and would easily have been satisfied by introduction of a reasonable number of photographs depicting the injury to the victim and showing the crime scene.
5. CRIMINAL LAW—ADMISSION OF SIX REPETITIOUS, INFLAMMATORY PHOTOGRAPHS OF VICTIM EXCESSIVE AND PREJUDICIAL.—The introduction into evidence of six, mostly repetitious, gory, color photographs of the victim's face, and portions thereof, taken both at the crime scene and at the medical examiner's office, was excessive and prejudicial; the introduction of multiple photographs of the victim was of little probative value and could do nothing but inflame the jury and distract from the issues raised by the appellant.
6. WORDS & PHRASES—"UNFAIR PREJUDICE"—DEFINITION.—"Unfair practice" is an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.
7. EVIDENCE—INFLAMMATORY PHOTOGRAPHS—ERROR TO ADMIT WHERE PREJUDICE OUTWEIGHS PROBATIVE VALUE.—Where, as here, the prejudice substantially outweighs the probative value of the photographs, it is error for the trial judge to admit them.
8. VENUE—CHANGE OF VENUE—WHEN GRANTED—STANDARD OF REVIEW.—A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county, the burden of proof being on the defendant in a motion to change the venue, and the decision of the trial court will be upheld unless it is shown there was an abuse of discretion in denying the motion.
9. VENUE—MOTION FOR CHANGE OF VENUE MUST BE SUPPORTED BY "CREDIBLE PERSONS."—A motion for change of venue is not supported by "credible persons" when the movants, affiants or witnesses are unable to show in their testimony that they have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the whole county.
10. VENUE—MOTION FOR CHANGE OF VENUE—MOVANT MUST SHOW COUNTYWIDE PREJUDICE.—A movant in a change of venue proceeding must demonstrate that there is a countywide prejudice against him before his motion for change of venue will be granted.
11. VENUE—DENIAL OF MOTION—WHEN PROPER.—There can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court; it is not necessary that the jurors be totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial.

Appeal from Miller Circuit Court; John Goodson, Judge; reversed and remanded.

Hubbard, Patton, Peek, Haltom & Roberts, by: Raymond W. Jordan; and Atchley, Russell, Waldrop & Hlavinka, by: J. Dennis Chambers and Clyde Lee, for appellant.

Steve Clark, Att'y Gen., by: Clint Miller, Asst. Att'y Gen., for appellee.

[Opinion of the court by Chief Justice JACK HOLT, JR. Dissenting opinion by Justice DARRELL HICKMAN, joined by Justice DAVID NEWBERN.]

1. Hickman, Hays, and Newbern, JJ., would grant rehearing.