Key v. State, 5288

• Decision Date: 02 September 1980
• Docket Number: No. 5288,5288
• Citation: 616 P.2d 774
• Parties: Alford Ricky KEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 774

616 P.2d 774

Alford Ricky KEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5288.

Supreme Court of Wyoming.

Sept. 2, 1980.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program; and Kenneth Marken, Student Intern, Wyoming Defender Aid Program, Laramie, signed the brief, and Gallivan appeared in oral argument on behalf of appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and John W. Renneisen, Law Clerk, Cheyenne, signed the brief on behalf of appellee. Sharon A. Lyman, Asst. Atty. Gen., presented oral argument.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

The admissibility into evidence of allegedly prejudicial photographs is the principal question to be decided in this appeal. We will affirm the trial judge's decision to allow them into evidence.

At about 10:00 p. m., on August 11, 1979, appellant armed with a knife and a can of mace arrived at Red's Bar in Elmo, Wyoming. Some time thereafter, the appellant participated in a fight outside the bar. Though there was conflicting testimony as to what exactly precipitated the brawl, during the course of it, appellant's adversary was knocked to the ground where appellant attempted to kick him and spray his face with mace. At this point, several individuals came running from the bar towards the scene of the struggle. According to their testimony, it was their desire to force the appellant to remain there until the police arrived. Once surrounded by these men, defendant attempted to hold them at bay by brandishing a knife in one hand and spraying mace with the other while backing away. The decedent, a spectator, made a rush toward the appellant; however, there was contradictory testimony as to whether the decedent reached the appellant before the appellant began to spray him with mace and stab him with the knife. After inflicting the decedent with seven stab wounds, appellant ran off. The decedent was then taken to Memorial Hospital in Rawlins, Wyoming, where he underwent emergency surgery before expiring. Sometime thereafter, appellant was charged with first-degree murder.

At appellant's trial, the pathologist, who had performed an autopsy upon the decedent, testified that as a part of the external examination of the body he had taken photographs depicting decedent's stab wounds as well as the incision made during the surgery. Several of these photos were admitted into evidence over appellant's objection that the prejudicial and inflammatory nature of the pictures outweighed any probative value. At the close of the case on January 10, 1980, the jury was instructed not only as to first-degree murder, but also as to second-degree murder, manslaughter, and appellant's claim of self-defense. After its deliberation, the jury returned a verdict finding the appellant guilty of manslaughter. Judgment and sentence was entered February 13, 1980.

Appellant challenges his conviction on two bases. His first contention is that the district court abused its discretion under Rule 403, W.R.E., when it allowed certain exhibit photographs to be admitted over his objection that the probative value was outweighed by the danger of prejudice. The second argument is that the evidence presented in the trial is insufficient to support the jury's verdict. ¹

The first issue raised by appellant pertains to Rule 403, W.R.E., which states:

"Although relevant, evidence 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."

As one authority has explained it:

"Rule 403 contemplates the exclusion of evidence 'if its probative value is substantially outweighed by the danger of unfair prejudice.' Necessarily the Rule calls for a balancing process, which is committed to the sound exercise of discretion by the trial judge, and, where probative value is slight and the danger of unfair prejudice is great, exclusion of the evidence is warranted." (Footnotes omitted.) 2 Louisell & Mueller, Federal Evidence, § 126 (1978).

When a matter rests within the sound discretion of a trial court, we will not disturb the trial court's ruling absent a clear showing that the holding was an abuse of this discretion. Daellenbach v. State, Wyo. 1977, 562 P.2d...