Marcus Young v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-925

APRIL 13, 2005

MARCUS YOUNG AN APPEAL FROM THE DREW COUNTY CIRCUIT COURT [CR-2003-184-3]

APPELLANT

V.

STATE OF ARKANSAS HONORABLE DON E. GLOVER, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Marcus Young pleaded guilty to the offense of committing a terroristic act. He admitted to getting into an altercation with Bobby Theus at a park in Monticello after which he fired shots at Theus's car as Theus drove away. Theus was shot in the shoulder. A jury was empaneled, and they recommended a twenty-year sentence. The court followed the jury's recommendation and sentenced appellant accordingly. On appeal, appellant challenges the introduction and admission of two photographs during the sentencing phase of trial. We affirm.

Generally, there is no right to appeal from a guilty plea. See Seibs v. State, ___ Ark. ___, ___ S.W.3d ___ (May 6, 2004). However, this rule is not without three recognized exceptions. See id. The one relevant to this appeal is when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003); see also Shirley v. State, 84 Ark. App. 395, 141 S.W.3d 921 (2004). The appellate court will not reverse a trial court regarding the admission of photographs absent an abuse of discretion. Deasis v. State, ___ Ark. ___, ___ S.W.3d ___ (Jan. 13, 2005). We do not condone the wholesale or wanton admission of photographic evidence, especially where the photographs have only a tenuous claim to relevance and the prejudice is great. Johnson v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 23, 2004). However, the mere fact that a photograph is inflammatory or is cumulative is not, standing along, sufficient reason to exclude it. O'Neal v. State, 356 Ark. 674, ___ S.W.3d ___ (2004). Even the most gruesome photographs may be admissible if they assist the trier of fact in shedding light on some issue, providing a necessary element of the case, enabling a witness to testify more effectively, corroborating testimony, or enabling jurors to better understand the testimony. Id. Pictures may also be helpful to the jury by showing the nature and extent of wounds and the savagery of the attack on the victim. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003). Two photographs -- State's Exhibits Ten and Eleven -- are at issue here.

State's Exhibit Ten is a photograph of the driver's seat in Theus's vehicle that depicts the amount of blood found inside of his car following the shooting. State's Exhibit Eleven also shows the blood found inside of the vehicle. Appellant suggests that these photographs served little, if any, probative value. He states that, "the testimony of the investigator and the victim clearly explained to the jury the manner in which the shooting took place. The testimony of Bobby Theus left no doubt as to the severity of the injury and its long-lasting effects. Therefore, the only value remaining in the photographs in question was that of inflaming the passions of the jury members." He further asserts that because he pleaded guilty to the offense there was no need for the photographs to the extent that they were used to show the severity of Theus's injury. Appellant's arguments are not convincing.

The photographs helped the jury understand the testimony of the witnesses. Scott Woodward, a criminal investigator with the Arkansas State Police, testified that he investigated this incident and performed a crime scene search of Theus's vehicle. The photographs merely corroborated and explained what the investigator found. Moreover, Theus testified that the shooting occurred as he was leaving the park. The pictures corroborate Theus's testimony that he was in his car when he was shot. Furthermore, appellant could not prevent the introduction of the photographs just because he pleaded guilty to the crime. See Smart v. State, supra (holding that a defendant cannot prevent the admission of a photograph merely by conceding the facts portrayed therein). Because we find no abuse of discretion in the admission of the photographs, we affirm.

Affirmed.

Pittman, C.J., and Robbins, J., agree.