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Ark.]
Berry v. State
Cite as 290 Ark. 223 (1986)
233

[4] The photographs did not illuminate any issue which the state had not already conclusively proved and the appellant admitted. They did nothing to rebut a defense by the appellant or to clarify the cause of death. They were not necessary to corroborate any questionable testimony. The basic issue at trial was whether the appellant helped plan the crime. In short, 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] Here, 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 their prejudicial nature was obvious. Multiple photographs of the victim, in this instance, were of little probative value and could do nothing but inflame the jury and distract from the issues raised by the appellant.

[6,7] A good definition of "unfair prejudice" is found in the advisory committee's commentary to Fed. R. Evid. 403, which describes it as an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." This is precisely the type of prejudice the rule is meant to prevent, and in this case the prejudice substantially outweighed the probative value of the photographs. Accordingly, the trial judge erred in admitting the photographs.

The other argument we consider necessary to address concerns the denial of a motion for change of venue. The appellant made a motion before trial for a change of venue under Ark. Stat. Ann. § 43-1501 (Repl. 1977), alleging that "the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein." In support of her motion, the appellant submitted nine newspaper stories which appeared over a period of seven months and which covered the story from the arrests of Mills and the appellant to the pretrial hearings before the appellant's trial. In addition, two witnesses signed affidavits and later testified that the appellant could not receive a fair trial in Miller County because of the pretrial publicity the murder had received. The appellant therefore met the formal requirements of