The opinion
*1218 PARKS, Judge,
dissenting:
In his second assignment of error, appellant claims that the trial court abused its discretion and thus committed reversible error in admitting State Exhibits Nos. 15, 18 and 19, which consisted of three 8" X 10" black and white glossy photographs taken while the deceased was on the autopsy table. In two of the three autopsy photographs, the victim’s head was shaved, exposing numerous lacerations and a depressed fracture. The third showed the skin surrounding the skull peeled back revealing mucous and brain tissue, as well as a semi-circular missing section of the skull. In Oxendine v. State, 335 P.2d 940, 943 (Okl.Cr.1958), this Court reversed a murder conviction and sentence of death primarily on the basis of the admission of autopsy photographs even though the defendants had “admitted the crime in intricate detail.” In Oxendine this Court stated:
Had there been a conflict as to the ... cause of death or location of the wounds, or an issue to which the photos were relevant ... they would have been admissible had they been taken prior to the performance of the autopsy. But the autopsy was not the handiwork of the defendant and could, under the circumstances, serve no other purpose than to arouse the emotions and passion of the jury ... [T]he photos were wholly inadmissible in the form presented and their admission was an abuse of the trial court’s discretion ... The whole procedure seems to have been so unnecessary and was highly prejudicial and forces a reversal.
Id. (emphasis added) As was pointed out in Oxendine , autopsy photographs like the ones here do not show the crime scene as it existed prior to the cutting and other surgical procedures performed by the medical examiner, but instead portray the handiwork of the medical examiner and in that sense consist of evidence manufactured by the State to be used against an accused. In the instant case, defense counsel specifically objected to the aforementioned photographs and, in asserting that they were being offered solely to inflame the jury, he stated:
There is ... not any controversy that the victim was murdered with something that resembled a hammer. We haven’t contested that fact from opening statement on, and we’re not contesting it today. And I don’t see how, with that understanding, those would become relevant in this ease.
(Tr. 548) As was true in Oxendine , whatever probative value the photographs possessed was not related to any material issue in the case. The medical examiner testified concerning the nature of the injuries and the probable cause of death. In this instance, where the cause of death was conceded to have been caused by numerous blows from a blunt instrument resembling a hammer, the probative value of the photos was substantially outweighed by the danger of unfair prejudice. See Ritchie v. State, 632 P.2d 1244, 1245-46 (Okl.Cr.1981); Oxendine v. State, 335 P.2d 940, 943 (Okl.Cr.1958). See also 12 O.S.1981, § 2403.
Moreover, the evidence against the appellant was entirely circumstantial, and cannot properly be termed overwhelming. In Thompson v. State, 724 P.2d 780, 783 (Okl.Cr.1986), this writer concurred in Judge Brett’s opinion holding that the improper admission of gruesome photographs did not affect the jury’s determination of guilt in view of the extremely strong evidence of guilt. Thompson , however, is distinguishable from the instant case in two significant ways. First, the instant case involves extremely inflammatory autopsy photographs whereas Thompson did not; and second, the evidence in the instant case does not even come close to the “strong” evidence of guilt that was present in Thompson. Id.
The State argues that the autopsy photographs were critical to their theory that the victim was killed with a hammer. However, the medical examiner’s testimony adequately explained the semi-circular missing section of skull without the assistance of the highly inflammatory autopsy photographs. In addition, Dr. Hemphill testified that the cause of death was multiple injuries to the head caused by a blunt instru *1219 ment which had both a relatively sharp squared off corner and a round flat striking surface. He specifically stated that “the most probable instrument here would be a hammer.” Accordingly, in light of the extremely inflammatory nature of the autopsy photos, and the fact that they were merely cumulative and repetitive of the medical examiner’s testimony, I conclude that whatever probative value they possessed was clearly outweighed by the danger of unfair prejudice. See Ritchie v. State, 632 P.2d 1244, 1245-46 (Okl.Cr.1981); Oxendine v. State, 335 P.2d 940, 943 (Okl.Cr.1958). See also 12 O.S.1981, § 2403.
The prosecutor made no attempt to limit the prejudicial effect of the autopsy photographs through cropping or by using drawings or diagrams. In light of the purely circumstantial nature of the case, it is apparent that the prosecutor strategically used the autopsy photographs to inflame the jury so as to influence it to return a verdict of guilty and a sentence of death. The error in admitting the autopsy photographs clearly falls within this Court’s mandatory duty to conduct a sentence review to determine whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. 21 O.S.Supp.lS85, § 701.13(C)(1). The record evidence against the appellant cannot properly be termed overwhelming so as to negate improper influence of the jury respecting its finding of guilt and, insofar as the error occurred during the guilt phase of the trial, I cannot say that the appellant received a fair trial consistent with Article II, section 20 of the Oklahoma Constitution. See Jones v. State, 610 P.2d 818, 820 (Okl.Cr.1980). Accordingly, I would reverse and remand for a new trial.