State v. Collins

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner,

v.

Bentley Collins, Respondent.

Appellate Case No. 2012-211266

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Dillon County

The Honorable Paul M. Burch, Circuit Court Judge

Opinion No. 27439

Heard April 15, 2014 – Filed August 20, 2014

REVERSED

Attorney General Alan McCrory Wilson and Assistant

Attorney General William M. Blitch, Jr., both of

Columbia, for Petitioner.

Appellate Defender Susan Barber Hackett, of Columbia,

for Respondent.

JUSTICE BEATTY: Respondent Bentley Collins was convicted of

involuntary manslaughter and three counts of owning a dangerous animal causing

injury to a person after a ten-year-old boy was killed and partially eaten by his

dogs, most of whom were pitbull mixes. The State appeals from a decision of the

Court of Appeals that reversed and remanded the matter for a new trial based

solely on the trial court's admission of seven pre-autopsy photos of the victim.

State v. Collins, 398 S.C. 197, 727 S.E.2d 751 (Ct. App. 2012). We reverse.

I. FACTS

On November 3, 2006, the mother of the victim returned to her home in

Dillon County around 7:00 p.m. and discovered that her ten-year-old son had not

come home for dinner at 5:30 p.m. as expected. She checked with her aunt, who

resided with her, and then began looking around the neighborhood. She called the

police when she could not find her son. The police arrived and the mother rode

with them as they scoured the neighborhood. Shortly after 10:00 p.m., they

discovered the boy's body on the ground in Collins's yard, with a group of dogs

nearby. The mother poignantly recalled that her son "was tore to pieces. Pieces."

The mother and the police tried to get to the boy, but the dogs ran at them

each time they approached his body. Agents from SLED arrived, and they could

not process the crime scene until animal control employees arrived to capture and

remove the dogs from the scene.

Neither Collins nor any of his family members were at home. Collins had

six dogs on the premises, all of which were unrestrained. Collins had no fence or

dog pens, and neighbors reported that he never kept his dogs on leashes or chains.

Most of the dogs appeared to be pitbull mixes. The three largest dogs weighed 47

pounds, 44 pounds, and 36 pounds, respectively, and they ranged in age from about

one to two years old. Several of the dogs had bite wounds on their shoulders,

which was indicative of dog fighting. One of the female dogs captured was

determined to be in heat.

An autopsy of the victim revealed the boy died of extensive traumatic injury

secondary to being severely mauled by dogs. According to the forensic

pathologist, Edward Proctor, the boy suffered a "tremendous number" of bite

marks on his legs and had "extensive" loss of skin and soft tissue on his upper body

and his face, including his ears and nose, which were "completely eaten away" by

the dogs. Areas of the boy's chest and his arm had also been eaten, exposing the

bone. The boy's jugular vein on the left side was torn in half, causing significant

blood loss leading to his death. The pathologist determined the boy "would have

been alive until the injuries to the neck that transected the blood vessel in the neck

allowing him to bleed enough until he either became unconscious or expired."

Two boys who lived in the neighborhood, "J" and "B," gave statements to

the police the day after the incident. They were in J's yard at around sunset on

November 3, 2006 when they heard growling and barking nearby. J had been

looking for his puppy, so they went to investigate and saw three of Collins's dogs

eating something on the ground that appeared to be "a bloody piece of meat." As J

walked to within about ten feet of the "meat," another dog that they had not seen

ran out and jumped on J, knocking him to the ground. J shoved that dog away, but

another one then came after him. One of the larger dogs bit J "behind [his] neck,"

so the boys left immediately.

Collins was indicted for involuntary manslaughter and three counts of

owning a dangerous animal1 and allowing it to be unconfined, resulting in the

mauling death of the victim. A jury convicted Collins of all charges. Collins

appealed to the Court of Appeals, which reversed and remanded for a new trial

based solely on the admission of seven photographs that were taken by the

pathologist to document the victim's injuries prior to performing the autopsy. This

Court granted the State's petition for a writ of certiorari.

II. STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only."

State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "This Court is

bound by the trial court's factual findings unless they are clearly erroneous." Id.

"The admission or exclusion of evidence is a matter addressed to the sound

discretion of the trial court and its ruling will not be disturbed in the absence of a

manifest abuse of discretion accompanied by probable prejudice." State v. Wise,

359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004). "An abuse of discretion occurs when

the conclusions of the trial court either lack evidentiary support or are controlled

by an error of law." Id.

III. LAW/ANALYSIS

On appeal, the State contends the challenged photos, taken before the

autopsy was commenced, accurately documented the injuries sustained by the

victim in this case and, while graphic, were properly admitted in accordance with

the trial court's broad discretion over evidentiary matters. The State argues the

1

The State charged Collins with three counts of owning a dangerous animal

(although six dogs were at the scene) based on the fact that the neighborhood boys

specifically saw three of Collins's dogs eating the victim's body.

Court of Appeals (1) failed to give due deference to the trial court's decision,

(2) erred in finding the photos were more prejudicial than probative, (3) erred in

finding the photos were not material to the elements of the offenses charged and

corroborative of other evidence, and (4) erred in making a purely emotional

decision to reverse and remand for a new trial. We agree.

A. Admissibility of Photos

In this case, Collins faced three charges under section 47-3-760 for being the

owner of a "dangerous animal"2 that attacked and injured a human being in

violation of section 47-3-710(A)(2)(a) of the South Carolina Code. See S.C. Code

Ann. § 47-3-760(B) (Supp. 2013) (penalty for dangerous animals). As noted by

2

Section 47-3-710(A) defines "dangerous animal" to "mean[] an animal of the

canine or feline family:

(1) which the owner knows or reasonably should know has a propensity,

tendency, or disposition to attack unprovoked, cause injury, or otherwise

endanger the safety of human beings or domestic animals;

(2) which:

(a) makes an unprovoked attack that causes bodily injury to a human

being and the attack occurs in a place other than the place where the animal is

confined as required by Section 47-3-720; or

(b) commits unprovoked acts in a place other than the place where the

animal is confined as required by Section 47-3-720 and those acts cause a

person to reasonably believe that the animal will attack and cause bodily

injury to a human being;

(3) which is owned or harbored primarily or in part for the purpose of fighting

or which is trained for fighting."

S.C. Code Ann. § 47-3-710(A) (Supp. 2013). Section 47-3-720, referenced above,

provides: "No person owning or harboring or having the care or the custody of a

dangerous animal may permit the animal to go unconfined on the premises," with

"unconfined" in this context meaning "the animal is not confined securely indoors

or confined in a securely enclosed fence or securely enclosed and locked pen or

run area upon the person's premises." Id. § 47-3-720.

the Court of Appeals, under section 47-3-760(B) and its associated statutes, the

State was required to prove (1) the defendant owned or had custody or control of a

canine or feline; (2) he knew or reasonably should have known the animal had a

propensity, tendency, or disposition to attack unprovoked, cause injury, or

otherwise endanger the safety of human beings; (3) the animal made an

unprovoked attack; (4) the attack caused bodily injury to a human being; and

(5) the attack occurred while the animal was unconfined on the defendant's

premises. State v. Collins, 398 S.C. 197, 203, 727 S.E.2d 751, 754 (Ct. App.

2012).

Collins was also charged with involuntary manslaughter. See S.C. Code

Ann. § 16-3-60 (2003) (providing "[a] person charged with the crime of

involuntary manslaughter may be convicted only upon a showing of criminal

negligence," which "is defined as the reckless disregard of the safety of others").

To establish this offense, the State must show the defendant killed another person

without malice and unintentionally while the defendant was engaged in either

(1) an unlawful activity not amounting to a felony and not naturally tending to

cause death or great bodily harm, or (2) a lawful activity with a reckless disregard

of the safety of others. State v. Crosby, 355 S.C. 47, 584 S.E.2d 110 (2003); State

v. Tyler, 348 S.C. 526, 560 S.E.2d 888 (2002).

In this case, the ten-year-old victim's body was discovered in the defendant's

yard, having suffered numerous bite marks and being partially eaten by the dogs.

There were no eyewitnesses to the attack. At trial, the State attempted to piece

together a theory of what transpired with the best evidence available, the victim's

body, and its expert witnesses, which included a forensic pathologist and a dog

behaviorist. They theorized that it was an unprovoked attack in which the victim

was taken down by his legs first based on the wounds observed on the body, and

then the boy suffered additional harm to his jugular vein and other areas, leading to

his death. According to the State's dog behavior expert, the dogs, who were not

restrained in any way, acted as a pack and could have been malnourished or

mistreated based on the dogs' gaunt appearance, the absence of any food at the

scene, and the appearance of the victim's body, which appeared to have been eaten

by more than one dog due to the significant tissue loss. The dog expert noted that

in over ten years of working for the Sheriff's Office analyzing dog bites, dog

attacks, and deaths caused by dogs, this was the worst case he had ever seen.

The State also presented evidence of the dogs' prior acts of aggression

towards people in the neighborhood, several occurring while Collins stood by and

watched without taking any action to restrain his dogs. For example, B, one of the

two boys who came upon the victim's body after the attack, testified he had

numerous encounters with the dogs, as they were "never" restrained. B recounted

that on at least two occasions, Collins stood by and watched as the dogs ran out

into the road after him and his friend J as they drove four-wheelers. Collins did not

attempt to intervene. In addition, when B and his mother tried to walk in the

neighborhood for exercise, the dogs would "frequently" come out and try to bite

their legs, so they wound up having to change their route just to avoid Collins's

aggressive dogs.

In order to support its assertions about the dangerous propensities of the

dogs, the manner and extent of the attack, and Collins's criminal negligence, the

State also offered a group of photos taken of the victim by Proctor, the forensic

pathologist, before he began the autopsy. The trial court engaged in an extended

colloquy in camera with the State and defense counsel in which the trial court

allowed both sides to make arguments, and then the attorneys and the court

examined the pathologist about each of the proposed photos in turn. The trial court

pulled some photos and ultimately allowed into evidence seven of the pre-autopsy

photos, State's Exhibits 27 and 30 to 35, over defense counsel's Rule 403, SCRE

objection.3

In his trial testimony, Proctor explained that he did not normally take

autopsy photos, but in his years of experience he had "never seen an attack by

animals of this type, [so he] actually left the autopsy and went to [his] home and

brought [his] camera back and took pictures for [] documentation purposes."

(Emphasis added.) Proctor found there was "tremendous traumatic injury to this

young man" that was as "significant [a] traumatic injury as [he had] seen."

During cross-examination, defense counsel questioned Proctor's findings

extensively by asking him whether he had surveyed the dogs' teeth marks to

determine which dogs inflicted specific injuries, whether the boy's jugular artery

was "actually severed," and which came first, the "shredding" of the boy's jugular

artery or the veins in his arms, etc. Thus, the nature and extent of the boy's

physical injuries as described by the pathologist were in contention by the defense.

Moreover, while Collins did not testify, his witnesses, including his children

and friends, did so, and they maintained the dogs were not at all dangerous, that

3

The first two photos, numbers 27 and 30, show the boy's legs having numerous

bite marks, but they clearly do not rise to a level that could be deemed unfairly

prejudicial. The remaining five photos, 31 to 35, which are the true focus of our

inquiry, variously show the boy's exposed jawbone and upper arm bone, and the

areas where his chest and face had been partially eaten during the dog attack.

they had never run at people in an aggressive manner, and that they had always

been given an abundance of food. The defense opined that the presence of the

female dog in heat had perhaps made the dogs more agitated and territorial than

normal, but they were not dangerous animals. However, after considering all of

the available evidence, the jury made a determination of guilt as to the charges.

The Court of Appeals reversed and remanded for a new trial solely on the

basis of the trial court's decision to admit the pre-autopsy photos, reasoning the

probative value of the challenged photos was substantially outweighed by their

potential for being unfairly prejudicial under Rule 403, SCRE, and that the error

was not harmless. State v. Collins, 398 S.C. 197, 727 S.E.2d 751 (Ct. App. 2012).

The court "agreed[d] that the photos have some probative value in helping the

jury," and "recognize[d] that the photos add a visual element not present in the

testimony of the witnesses," but ultimately found these considerations were

outweighed by the danger of unfair prejudice. Id. at 206-12, 727 S.E.2d at 756-60.

In finding the trial court abused its discretion, the court repeatedly described the

photos as "disturbing" and "gruesome." Id. at 208-09, 727 S.E.2d at 757-58.

As a general rule, all relevant evidence is admissible. Rule 402, SCRE.

"'Relevant evidence' means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence." Rule 401, SCRE. "Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice . . . ." Rule 403, SCRE.

"The relevancy, materiality, and admissibility of photographs as evidence

are matters left to the sound discretion of the trial court." State v. Nance, 320 S.C.

501, 508, 466 S.E.2d 349, 353 (1996). "If the offered photograph serves to

corroborate testimony, it is not an abuse of discretion to admit it." Id. "When

[balancing the danger of unfair prejudice] against the probative value, the

determination must be based on the entire record and will turn on the facts of each

case." State v. Lyles, 379 S.C. 328, 338, 665 S.E.2d 201, 206 (Ct. App. 2008).

"A trial judge's decision regarding the comparative probative value and

prejudicial effect of evidence should be reversed only in exceptional

circumstances." State v. Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 794 (Ct. App.

2003). "We review a trial court's decision regarding Rule 403 pursuant to the

abuse of discretion standard and are obligated to give great deference to the trial

court's judgment." Id.

Under our highly deferential standard of review, we conclude, contrary to

the Court of Appeals, that the trial court did not abuse its wide scope of discretion

in admitting the pre-autopsy photos. The Court of Appeals's obvious revulsion for

the evidence, while certainly understandable, permeated its legal analysis. The

evidence was highly probative, corroborative, and material in establishing the

elements of the offenses charged; its probative value outweighed its potential

prejudice; and the appellate court should not have invaded the trial court's

discretion in admitting this crucial evidence based on its emotional reaction to the

subject matter presented.4

Courts must often grapple with disturbing and unpleasant cases, but that

does not justify preventing essential evidence from being considered by the jury,

which is charged with the solemn duty of acting as the fact-finder. As one court

has astutely observed, it is the duty of courts and juries to examine the evidence in

even the most unpleasant of circumstances:

Courts and juries cannot be too squeamish about looking at

unpleasant things, objects, or circumstances in proceedings to enforce

the law and especially if truth is on trial. The mere fact that an item of

evidence is gruesome or revolting, if it sheds light on, strengthens or

gives character to other evidence sustaining the issues in the case,

should not exclude it.

Nichols v. State, 100 So. 2d 750, 756 (Ala. 1958) (citations omitted); see also

Camargo v. State, 940 S.W.2d 464, 467 (Ark. 1997) ("Even the most gruesome

photographs may be admissible if they tend to shed light on any issue, to

corroborate testimony, or if they are essential in proving a necessary element of a

case, are useful to enable a witness to testify more effectively, or enable the jury to

better understand [the] testimony. Other acceptable purposes are to show the

condition of the victims' bodies, the probable type or location of the injuries, and

the position in which the bodies were discovered." (internal citation omitted)).

4

To the extent the Court of Appeals stated it would not defer to the trial court's

discretion because it did not conduct its "own" Rule 403 analysis, we find the

record shows the trial court did thoroughly consider the arguments of both the

State and the defense, and it examined each photo while also conducting an

examination of the forensic pathologist who took the photographs before making

its decision. Moreover, Collins did not object to any alleged delict in the trial

court's procedure at the time of the ruling.

Numerous jurisdictions have found that photos are not inadmissible merely

because they are gruesome, especially where, as here, the photos simply mirror the

unfortunate reality of the case. See M.C. Dransfield, Annotation, Admissibility of

Photograph of Corpse in Prosecution for Homicide or Civil Action for Causing

Death, 73 A.L.R.2d 769 (1960 & Later Case Serv. 2013) (collecting cases

involving death photos). As one court has stated, "The law is well settled that the

mere fact that a photograph is gruesome is not a reason for its non admission."

State v. Ernst, 114 A.2d 369, 373 (Me. 1955).

Moreover, the standard is not simply whether the evidence is prejudicial;

rather, the standard under Rule 403, SCRE is whether there is a danger of unfair

prejudice that substantially outweighs the probative value of the evidence. Where

the State had the burden of proving the elements of the offenses charged and there

were no eyewitnesses to the incident resulting in the victim's death, the photos here

provided concrete evidence as to what transpired on that fateful day. We

particularly note the photos were taken before the autopsy was conducted as a

means to document the extent and nature of the victim's injuries. Thus, they show

the unaltered condition of the victim, not any additional wounds that could have

been made to the body by the pathologist in performing his examination.

These are not ordinary dog bites with which most jurors would ever be

familiar. Even the pathologist stated he felt compelled to document the injuries

prior to the start of the autopsy because he had never come across a situation this

extreme. Since there was no one else present at the time of the event, the photos

aided the jury in evaluating the testimony offered by both the State and the

defendant, especially as to determining the dangerous propensities of the dogs and

whether or not Collins's conduct was criminally reckless.

In Turnipseed v. State, 367 S.E.2d 259 (Ga. Ct. App. 1988), the Court of

Appeals of Georgia considered a case in which a four-year-old was mauled by the

defendant's pitbull terriers. The court held a jury could find that the defendant's

conduct of leaving the dogs unguarded, along with his knowledge of past incidents

involving the dogs, constituted reckless conduct supporting a charge of involuntary

manslaughter. Id. at 261. In doing so, the court rejected the defendant's assertion

that the trial court's "admission of five pre-autopsy photographs of the victim lying

on the autopsy table" was error because the photos "were irrelevant and

prejudicial." Id. at 262. The court stated:

The photographs were not devoid of probative value because

they showed the nature of the attack on the victim. From observation

of the wounds of the victim, the jury could draw conclusions about the

vicious propensities of the animals and weigh this in light of the other

evidence about the dogs to determine whether or not Turnipseed's

conduct regarding them was criminally reckless.

Id. at 262-63; cf. State v. Holder, 382 S.C. 278, 290-91, 676 S.E.2d 690, 697

(2009) (stating "[a]lthough the photos were graphic, the facts in this case were

graphic" and holding the trial court properly exercised its discretion in admitting

autopsy photos of the child victim as they corroborated the pathologist's testimony

and aided the jury in understanding that testimony); State v. Edwards, 194 S.C.

410, 412, 10 S.E.2d 587, 588 (1940) (holding, in a murder prosecution, that the

trial court did not abuse its discretion in admitting a graphic photo of the victim's

decomposed body where "everything depicted by the photograph was . . . testified

to in detail by the witnesses").

B. Harmless Error

Although we find no abuse of the trial court's broad scope of discretion here,

we further find any alleged error would be harmless beyond a reasonable doubt.

See State v. Wise, 359 S.C. 14, 596 S.E.2d 475 (2004) (stating both error and

probable prejudice must be shown to warrant reversal).

The harmless error rule generally provides that an error is harmless beyond a

reasonable doubt if it did not contribute to the verdict obtained. Arnold v. State,

309 S.C. 157, 420 S.E.2d 834 (1992). "To say that an error did not 'contribute' to

the ensuing verdict is not, of course, to say that the jury was totally unaware of that

feature of the trial . . . ." Id. at 166, 420 S.E.2d at 838. Rather, "[t]o say that an

error did not contribute to the verdict is . . . to find that error unimportant in

relation to everything else the jury considered on the issue in question, as revealed

in the record." Id. at 166, 420 S.E.2d at 839 (citation omitted) (emphasis added).

"No definite rule of law governs this finding; rather, the materiality and

prejudicial character of the error must be determined from its relationship to the

entire case." State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985). "In

applying the harmless error rule, the court must be able to declare the error had

little, if any, likelihood of having changed the result of the trial and the court must

be able to declare such belief beyond a reasonable doubt." State v. Watts, 321 S.C.

158, 165, 467 S.E.2d 272, 277 (Ct. App. 1996) (emphasis added) (citing Chapman

v. California, 386 U.S. 18 (1967))).

Another description frequently cited is that error "is harmless where a

defendant's guilt has been conclusively proven by competent evidence such that no

other rational conclusion can be reached." State v. Bryant, 369 S.C. 511, 518, 633

S.E.2d 152, 156 (2006); see also 5 Am. Jur. 2d Appellate Review § 659 (2007)

("The United States Supreme Court has recognized that although the harmless error

inquiry is entirely distinct from a sufficiency of the evidence inquiry, this does not

mean that overwhelming evidence of guilt is irrelevant." (citing United States v.

Lane, 474 U.S. 438 (1986))).

We hold there was overwhelming evidence presented of Collins's guilt as to

the charges of (1) having an unrestrained, dangerous animal that attacked and

injured a human being, and (2) involuntary manslaughter. The undisputed

evidence was that Collins's dogs were unattended and they were not confined, as

there were no fences, leashes, dog pens, or chains used to restrain them. In

addition, other evidence showed Collins's dogs attacked, killed, and partially ate

the ten-year-old victim in this case, and they also attacked one of the neighborhood

boys who happened upon the scene soon thereafter and bit him on the neck.

Lastly, there was evidence that Collins was aware of his animals' dangerous

propensities, as the dogs, the largest of whom weighed 47 and 44 pounds, had

previously exhibited overt acts of aggression towards people in the neighborhood

while Collins was present. In light of the foregoing, a jury could not rationally

conclude anything other than that Collins had violated the law governing

unrestrained dangerous animals and was criminally negligent in the death of the

victim. See generally State v. Powell, 446 S.E.2d 26 (N.C. 1994) (affirming a

conviction for involuntary manslaughter where the jury found the defendant guilty

based on the defendant's culpable negligence in leaving his dogs, two Rottweilers,

unattended and unrestrained, and the dogs mauled the victim).

IV. CONCLUSION

We conclude the trial court did not abuse its discretion in admitting the pre-

autopsy photos. Consequently, we reverse the decision of the Court of Appeals.

REVERSED.

TOAL, C.J., concurs. KITTREDGE, J., concurring in a separate

opinion in which HEARN, J., concurs. PLEICONES, J., dissenting in a

separate opinion.

JUSTICE KITTREDGE: I concur in result. In my judgment, the admission of

the autopsy photographs was clear error. The primary, if not sole, purpose of these

horrific photographs was to inflame the passions of the jury. The detailed and

graphic testimony of the pathologist was more than sufficient to enable the State to

establish the elements of the offense. I agree with Justice Pleicones that these

challenged photographs far exceed "the outer limits of what our law permits a jury

to consider." State v. Torres, 390 S.C. 618, 624, 703 S.E.2d 226, 229 (2010). I

fully understand that there are circumstances where autopsy photographs are

relevant and that the relevance of the photographs is not substantially outweighed

by the danger of unfair prejudice. See Rules 402, 403, SCRE. But this is not such

a case. I nevertheless believe the error was harmless for the reasons set forth in the

majority opinion. I note this case was tried in 2009, prior to our decision in Torres,

where we expressed our concern over the State's seeming practice of seeking

admission of highly prejudicial and inflammatory autopsy photographs.

HEARN, J., concurs.

JUSTICE PLEICONES: I respectfully dissent, and would affirm the well-

reasoned opinion of the court of appeals. I agree with the court of appeals that any

minimal probative value of the admitted photographs was substantially outweighed

by the danger of unfair prejudice and that their admission violated Rule 403,

SCRE. In my opinion, the prejudice to Collins from the admission of these

photographs requires reversal.

This Court recently addressed to the bench and bar our concern over the admission

of gruesome photographs in State v. Torres, 390 S.C. 618, 703 S.E.2d 226 (2010),

where we observed:

Although we affirm the admission of the photographs, we take this

opportunity to address an area of growing concern to this Court. The

photographs at issue in this case, while admissible, are at the outer

limits of what our law permits a jury to consider. Moreover, the State

also sought to introduce evidence in the form of an autopsy dissection

photo at trial, which the trial judge wisely excluded. Today, we

strongly encourage all solicitors to refrain from pushing the envelope

on admissibility in order to gain a victory which, in all likelihood, was

already assured because of other substantial evidence in the case.

Id. at 624, 703 S.E.2d at 229.5

In my judgment, the majority has today approved the admission of evidence that

far exceeds ". . . the outer limits of what our law permits a jury to consider." Id. In

my opinion, the only way we can educate the bench and bar as to that which is and

is not beyond the pale is to publish these horrific photographs with our opinion.

I would affirm the court of appeals.

5

Photographs 31 to 35 at issue here are at least as disturbing as the autopsy

dissection photo in Torres.