State v. McMillin

ANTHONY P. NUGENT, Special Judge,

concurring.

I concur in the principal opinion but not without the following reservations.

Unlike the civil law countries, we have a great body of the law of evidence because we have juries. The rules of evidence serve to screen trial jurors from material that would mislead them or inflame their prejudices and passions against an accused. In earlier, less fevered days, the Court declared inadmissible photographs of a murder victim’s body, deeming them “extremely obscene, offensive, vulgar, horrid, and repulsive.” State v. Robinson, 328 S.W.2d 667, 671 (Mo.1959). Since those kinder and gentler days, however, Missouri appellate courts have permitted the continued erosion of the rule of evidence invoked in Robinson . As we have done so, the trial courts have become more and more permissive and more and more tolerant of the patent hokum laid on them by prosecutors bent on convictions. In these cases, the patent hokum consists of absurd contentions that gruesome photographs are relevant and necessary to prove allegations about which the defendants make no issue, for example the cause of death, the identity of the victim, the condition of the corpse. Since Robinson and State v. Floyd, 360 S.W.2d 630 (Mo.1962), the courts have honored any such excuse for admission of gruesome photographs, despite their patent irrelevance and grossly inflammatory and revolting nature. State v. Leisure, 772 S.W.2d 674, 681-82 (Mo.App.1989). For example, see State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981) (photo of victims’ decomposed body held relevant to show the body’s location); State v. Newberry, 605 S.W.2d 117, 122 (Mo.1980) (photo admissible to prove identity and condition of the corpse, nature and location of the wounds, the cause of death, or to corroborate or refute testimony).

The fact that a gruesome photograph adds nothing to the other evidence, State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982), State v. Engleman, 634 S.W.2d 466, 475 (Mo.1982), or that the defendant offers to stipulate to the evidence depicted in the photographs, State v. Cummings, 607 S.W.2d 685, 688 (Mo.1980), and State v. Sherrill, 657 S.W.2d 731, 737 (Mo.App.1983), makes no difference.

Obviously, by our refusal to adhere to the applicable rule of evidence set out in Robinson, we have come to the point where, as Judge Blackmar suggested in dissent in State v. Leisure, 749 S.W.2d 366, 385 (Mo. banc 1988), the trial court has unreviewable discretion to admit patently *107 inflammatory and irrelevant evidence, whether we acknowledge it or not. In the case of any rule of law or evidence, to concede that the trial court has unreviewable discretion is at least unwise if not a question of constitutional dimensions. See D. Lewis, Proof and Prejudice: a Constitutional Challenge to the Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 Wash.L.Rev. 289 (1989).

I concur in the affirmance of the defendant’s conviction because of two facts: the evidence of his guilt without reference to the photographs leaves no doubt at all of his guilt, and the jury as a whole apparently resisted the prosecutions’ attempts to inflame them, a rare occurrence. But the evidence of guilt sometimes falls far short of proof this convincing, and jurors undoubtedly can be swayed by gruesome but irrelevant photographs. Therein lies the reason for the old rule. We should in such cases adhere to that rule.