State v. Wilson, 15591

• Decision Date: 15 December 1983
• Docket Number: No. 15591,15591
• Citation: 310 S.E.2d 486,172 W.Va. 724
• Parties: STATE of West Virginia v. Benjamin F. WILSON.
• Court: West Virginia Supreme Court

Page 486

310 S.E.2d 486

172 W.Va. 724

STATE of West Virginia v. Benjamin F. WILSON.

No. 15591.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1983.

Syllabus by the Court

"Gruesome photographs are not per se inadmissible, but they must have something more than probative value, because by the preliminary finding that they are gruesome, they are presumed to have a prejudicial and inflammatory effect on a jury against a defendant. The State must show that they are of essential evidentiary value to its case." Syllabus Point 1, State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979).

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

Paul A. Ryker, Huntington, for appellant.

PER CURIAM:

Appellant Benjamin Wilson was convicted of second degree murder by a jury in the Circuit Court of Cabell County on October 27, 1980 and sentenced to an indeterminate term of from five to eighteen years in the penitentiary. On appeal he assigns several errors committed by the trial court but we address only one, i.e., whether the court erred in allowing a certain photograph into evidence at the appellant's trial. ¹ For the reasons set forth below, we reverse.

The record in this case indicates that the appellant and Anthony Blessing were indicted and charged with first degree murder in the death of seventy-five year old Enos Adkins. Mr. Adkins was beaten to death in an alley in the early morning hours of May 11, 1980 by two individuals who could not be identified by the only witness to the crime. Josephine Kitchen testified that she heard cries for help and "they are killing me," from what sounded like an elderly man. She also heard sounds of kicking or hitting, and although she saw two individuals standing near the location of the sounds from the window of her home, she never actually saw them beat the victim, who was later identified as Mr. Adkins. Ms. Kitchen also testified that she saw the two individuals walk down the alley and then walk back to the victim. She heard the thumping sounds again and then the two men disappeared.

The trial court admitted a statement made by the appellant to the arresting officers that he had participated in an assault on an elderly man but that Blessing had done most of the beating. The appellant maintained that he had struck the victim only once and that Blessing had struck him with a brick. At trial, however, the appellant testified that he had been drinking and taking Valium on the day of the murder and that he had no recollection of the events that occurred after approximately 6:30 p.m. when he went to a local bar and ordered one quart of beer.

The critical issue at trial was who killed the victim, Mr. Adkins. There was no dispute that the victim had died as a result of a severe beating mostly to the head and neck area. The State's pathologist, Dr. Vasudeo Kshirsagar, testified that the cause of death was multiple injuries of the head and chest. He testified that the injuries were caused by blunt force trauma which is characterized by contact with a fist or stick and that the victim suffered several blows to the head and chest, any one of which could have caused his death.

At trial the State attempted to introduce into evidence an 8 inch X 10 inch close-up color photograph of the victim's lacerated and bloodied face for the purpose of identification. The court made a preliminary ruling that the photograph was gruesome but withheld a ruling on its admissibility. However, later in the trial when the State again attempted to introduce the photograph to show malice and the brutality of the victim's beating, the court refused to allow the photograph into evidence.

It was during the appellant's presentation of evidence that the court did allow the admission of the photograph. The defense elicited testimony from a police officer who took a statement from Anthony Blessing to the effect that Blessing had admitted that he struck the victim with a brick when the victim directed foul language at him. The defense then introduced into evidence a loose brick found near the murder scene. The brick had not been analyzed with the other evidence in this case. ² After the brick had been introduced into...