The opinion
Wendell L. Griffen, Judge, concurring. I concur because I agree with my colleagues to affirm the trial court, but wish to express my concerns regarding what I perceive to be a very liberal standard in matters of admitting photographic evidence. This case illustrates the need to tighten that standard.
The current standard applying to the issue of admissibility of photographs is quickly summarized. Generally, the admission of photographs rests within the sound discretion of the trial court, and we do not reverse absent an abuse of discretion. Gates v. State, 338 Ark. 530 , 2 S.W.3d 40 (1999). The mere fact that a photograph might be considered inflammatory or cumulative is not, by itself, enough to exclude it. Ramaker v. State, 345 Ark. 225 , 46 S.W.3d 519 (2001). Notably, there exist feasible reasons why such photographs might remain admissible, even images showing repulsive human gore, namely if they help the jury to understand accompanying testimony. Id. In that vein, our supreme court held that photographs showing a brain cross-section were admissible in support of a medical examiner’s testimony as well as photos showing “human debris sprayed on the walls” in corroboration of a police officer’s testimony regarding the position of the victim’s body. Mosby v. State, 350 Ark. 90 , 85 S.W.3d 500 (2002).
However, I maintain that this same standard leads our trial courts, and us on appeal, to allow virtually everything. In this case, for instance, the State introduced photographs showing Walls lying dead in the grass, bleeding from his mouth and head due to gunshot wounds. The prosecutor argued that she was entided to present photographs to the jury because this was a first-degree murder trial and the other photos of Walls’s body were taken after it was cleaned. Allegedly, this was needed to corroborate available witness testimony and police testimony. Given the liberal standard already mentioned, the fact that admission of these images lay within the sound discretion of the trial judge, and that we would have to find an abuse of discretion on the part of the trial judge, we are obliged to affirm the trial court on this point.
However, I find the State’s argument unintelligible because I see no probative value in the particular photographs merely to corroborate what everyone already knew and what was not in dispute. The victim was dead. There were eyewitnesses describing how appellant shot the victim in his front yard. Notwithstanding his different version of events, appellant admitted as much. The jury had available photographs from the crime laboratory, and thus saw the victim’s dead body and the wounds in question, albeit “cleaned up.” Whether a dead body bleeds from the mouth and gunshot wounds or not appears of little relevance to the actual questions involved in this first-degree murder charge. There was no dispute as to the location of the homicide, or the respective positions of appellant and the victim, or the final position of the victim’s dead body. The State did not even argue that the blood- and-gore images were necessary to arrive at any conclusions involving blood-spatter patterns and positions.
In light of existing case law, we affirm even though it appears to me that the true reason why these photographs were introduced lay in an attempt to further sway the jury against the perpetrator. No other reason was truly advanced or presents itself for our review. In this context, it also appears interesting that any such attempt on the part of the prosecution appears unnecessary in light of the overwhelming evidence against appellant. Thus, I believe that this case proves the need to tighten the existing standard regarding the admission of photographs.