Berry v. State

Decision Date03 November 1986
Docket NumberNo. CR86-47,CR86-47
PartiesLaura BERRY, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Hubbard, Patton, Peek, Haltom & Roberts by Raymond W. Jordan, Atchley, Russell, Waldrop & Hlavinka by J. Dennis Chambers, Clyde Lee, Texarkana, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

Laura Berry appeals from a conviction of capital felony murder in which she was sentenced to life imprisonment without parole. Among her points for reversal, the appellant contends that the trial court erred in admitting numerous graphic photographs of the victim taken at the scene and afterward, and entered to show the injuries inflicted by her accomplice in this crime. We agree and reverse for a new trial. The only other issue we deem necessary to address, in light of our holding, is the appellant's argument that the trial court erred in denying her motion for a change of venue because of pretrial publicity. Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(b) because of the length of the sentence.

It was undisputed at trial that the death of Mrs. Nancy Sangalli, the appellant's great-aunt, was the result of a beating administered by the appellant's boyfriend Kelly Mills, with a crowbar, a cooking pot and his fists. Pursuant to an agreement with the prosecuting attorney, Mills pleaded guilty to capital murder in anticipation of a life sentence without parole in return for his testimony in the appellant's trial. Mills testified that he and the appellant planned for him to go to Mrs. Sangalli's home and, when the appellant later rang the doorbell, knock Mrs. Sangalli out with a crowbar he had hidden in his back pocket. They would then steal money, checks and an express banking card to finance their escape from the country. Mills stated that the appellant and he got the crowbar from the appellant's home.

According to Mills' account, he "chickened out" when the appellant first rang the doorbell, but later struck Mrs. Sangalli with the crowbar when she was turned away from him. Mills said that when Mrs. Sangalli attempted to escape, he pulled her to the floor and began hitting her. He was unable to relate the details of the attack, saying he blacked out, but remembered the appellant coming in as he was dragging Mrs. Sangalli away. The two then ransacked the home but found only a small amount of money and some checkbooks, which they took. They stole the victim's car and drove to Dallas, but ran out of money and returned to Texarkana the next day. They were arrested upon their return. The appellant gave a statement to one of the arresting officers to the effect that she was not aware of Mills' intentions until she entered her aunt's house and that she then went along with Mills because he threatened to kill her if she did not. The appellant helped the police recover the crowbar they had thrown away on the return trip from Dallas, and it was admitted into evidence against her.

At trial, the prosecuting attorney introduced nine photographs of the victim (including six of the victim's face), most of which were in color, over the objections of the appellant. The photographs, graphically showing the extensive injuries to the victim's face and some taken to emphasize those injuries, were accepted by the trial court without exception. They included photographs of the trail of blood where the victim was dragged, of the victim's body in a pool of blood at the scene, closeup autopsy photographs of the victim's face, an autopsy photograph of the side of the victim's head with the hair shaved to further expose the injuries, and a closeup of the victim's shattered teeth which had been removed from her mouth by the medical examiner.

The appellant objected that the photographs were not relevant in that the brutality of the murder, the cause of death, and the perpetrator of the injuries were all admitted by the appellant and it was uncontradicted that the appellant never touched the victim. The appellant argued that any probative value of the photographs was outweighed by the prejudice likely to result, and that at some point the photographs were merely cumulative and entered only to further incite passion against her.

The first question upon the proper introduction of photographs, as with all evidence, is whether they are relevant. " '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." A.R.E. Rule 401. If the evidence is relevant, it still "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." A.R.E. Rule 403. The determination of admissibility is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986).

Decisions of this court have permitted broad admission of photographs of murder victims. The fact that photographs are inflammatory is not alone sufficient reason to exclude them. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). Inflammatory pictures are "admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony." Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973).

We have often held that a photograph is not inadmissible merely because it is cumulative and that the defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977); Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). "Of course, if a photograph serves no valid purpose and can only result in inflaming the passions of the jury, it is inadmissible." Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

Even the most gruesome photographs have been held admissible to show the nature and location of wounds in order to rebut a defendant's claim of self-defense, Perry, supra; to show premeditation and deliberation, Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980); to show the speed and force of impact of the defendant's car in a manslaughter case, Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980); to show the death was caused under circumstances manifesting an extreme indifference to the value of human life, Gruzen, supra; and to show that the victim had been raped, Williams v. State, 239 Ark. 1109, 396 S.W.2d 834 (1965).

Because of the trial court's carte blanche acceptance of these graphic and repetitive pictures into evidence, it is necessary that we reexamine our position on the admissibility of inflammatory photographs. The analysis should firmly emphasize the need for the trial court to carefully weigh the probative value of the photographs against their prejudicial nature, rather than promoting a general rule of admissibility which essentially allows automatic acceptance of all the photographs of the victim and crime scene the prosecution can offer.

Other states have been equally liberal in the admission of similar photographs where they were relevant to proof of the state's case. Like we do now, many have found it necessary, however, to stem the resulting influx of inflammatory pictures where the claims of relevance were increasingly tenuous in light of the prejudicial nature of the photographs. E.g., Cavazos v. State, 365 S.W.2d 178 (Tex.Cr.App.1963); Borroum v. State, 168 Tex.Cr. 552, 331 S.W.2d 314 (1960); Davis v. State, 165 Tex.Cr. 456, 308 S.W.2d 880 (1958); People v. Landry, 54 Ill.App.3d 159, 11 Ill.Dec. 526, 368 N.E.2d 1334 (1977); People v. Garlick, 46 Ill.App.3d 216, 4 Ill.Dec. 746, 360 N.E.2d 1121 (1977) and People v. Leflar, 38 Ill.App.2d 216, 230 N.E.2d 827 (1967).

In State v. Bucanis, 26 N.J. 45, 138 A.2d 739 (1958) cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958), where graphic autopsy photographs showing the gunshot wounds of the victim were admitted in the trial of the deceased's husband, the New Jersey court described a similar tendency to abuse the discretion given the trial courts. After a review of New Jersey cases the court stated:

These cases contained broad pronouncements which, perhaps, gave too much encouragement to the thought that the prosecution could use at will any and all pictures at a murder trial as long as they possessed some relevancy. Each decision, however, presumed, of course, that the trial judge would continue to exercise a modicum of sound judicial discretion and exclude any picture that was unusually gruesome or repulsive and had little evidential value, admitting only those which would be of significant assistance to the jury in its deliberations as to the guilt or innocence of the defendant and which were not unduly prejudicial.

The fact that a photograph may have some probative force is not always completely determinative of its admissibility. There are cases where the logical relevance of such an exhibit will unquestionably be overwhelmed by its inherently prejudicial qualities which will impair the defendant's right to a fair and impartial trial. When undoubtedly the minute peg of relevance will be entirely obscured by the quantity of dirty linen hung upon it, fair play directs the exclusion of the exhibits.

After holding that the trial court had abused its discretion in admitting the pictures, the New Jersey court nevertheless affirmed the conviction because the objection at trial was insufficient to preserve the point for appeal.

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  • Camargo v. State
    • United States
    • Supreme Court of Arkansas
    • March 17, 1997
    ...discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against "promoting a general rule of admissibility that essentially allows automatic acceptance of all ......
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