Page:BERRY V. STATE.pdf/2

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.