Paul Lester Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR05-162

September 28, 2005

PAUL LESTER JOHNSON AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

v. [CR2004-217]

STATE OF ARKANSAS HONORABLE MARION HUMPHREY, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

A Pulaski County jury found appellant Paul Lester Johnson guilty of first-degree murder. He was sentenced as a habitual offender with four or more prior felony convictions to thirty-five years in the Arkansas Department of Correction. On appeal, appellant alleges that the trial court erred in denying his objections to the admissibility of State's Exhibits Number Twenty-Two and Number Twenty-Three, photographs of knife wounds to the back of the victim's neck, because the photographs were cumulative and unfairly prejudicial. We affirm.

On May 26, 2004, the State filed an amended felony information against appellant alleging that, on or about November 29, 2003, appellant committed capital murder by acting with premeditation and deliberation to cause the death of Kenneth Clark. The information also alleged that appellant was a habitual offender with four or more prior felony convictions.

At appellant's October 19-20, 2004 trial, the following evidence was established. Appellant lived in a homeless camp. On the night of November 29, 2003, Kenneth Clark, the victim, and Darryl Williams came to camp to talk with appellant. An altercation occurred between appellant and Mr. Clark. David Yelverton, a resident of the camp, testified that he overheard the altercation. During the altercation, Mr. Yelverton overheard appellant threaten to break Mr. Clark's jaw. He said that he saw appellant and Mr. Williams walk Mr. Clark down the trail that lead from the camp. Mr. Yelverton testified:

[He heard] Kenny pleading with these guys for his life, screaming to God for help. And I'm hearing, I don't know if they're just blows or whether they was stabbing him, or what, but I heard all these "Oh, Oh, God, Oh God help me, please. Oh, God." And then I just - I heard them just keeping in on him and I keep hearing him yelling and screaming.

Shortly thereafter, the noises stopped, and Mr. Yelverton saw appellant and Mr. Williams return to the camp. He described them as being covered in blood. He testified that they attempted to wash the blood off using vodka. He also said that they were carrying knives that had Mr. Clark's "guts hanging off." Mr. Yelverton witnessed appellant placing the knives in a burn barrel. He explained that appellant always carried a big "army knife." Mr. Yelverton described the knife as being long and serrated on the back. He said that this was the knife appellant was carrying when he returned to the camp. He said that Mr. Williams had a small pocket knife with a plastic handle and serrated end. The following morning, Mr. Yelverton reported the incident to the police.

Detective John White of the Little Rock Police Department testified that on November 30, 2003, Mr. Yelverton came to the station and reported a crime. After talking to Mr. Yelverton, Detective White drove him back to the camp. When they arrived, Mr. Yelverton pointed out appellant. Detective White said that appellant was accompanied by a male and female suspect. Detective White made contact with the trio. When he asked if the trio had seen Mr. Clark, they replied that they had not seen him since the night before. Detective White asked the trio to come to the station later. Afterwards, Detective White called for assistance, and a search of the area was conducted. He said that Mr. Clark's body was found. He testified that:

He was laying face-up, stripped down. The only thing he had on was a pair of black socks. Obvious blunt force trauma to this [sic] head. What makes me say that was I mean there was blood everywhere, all over him. His throat was cut, what appeared to be cut. He had multiple stab wounds, what appeared to be stab wounds. His hands were tied. He had ligatures on his hands. Ligatures like a rope or something that bound his hands.

Barbara Dimon, a crime scene specialist with the Little Rock Police Department, testified that, on November 30, she took photographs of the scene. She said that she also searched for evidence and, upon finding evidence, she marked and photographed the evidence. During her search, she located a knife. She also found a knife in a burn barrel. At this time, State's Exhibit thirteen, two pieces of a broken knife handle, was admitted without objection. During her testimony, Sherry Graham, appellant's companion, identified State's Exhibit Thirteen as the handle of appellant's knife.

Dr. Charles Paul Kokes, chief medical examiner for the Arkansas State Crime Lab, testified that he performed an autopsy on Mr. Clark's body. During the autopsy, he took photographs of Mr. Clark's injuries. He said that the cause of death was multiple blunt and sharp force injuries. He explained that there were three ways in which blunt-force injuries manifest themselves: (1) abrasion; (2) contusion; (3) laceration. He stated that sharp-force injuries involve pointed or sharp objects contacting and penetrating the body. He said that cuts and stab wounds are examples of sharp-force injuries. Dr. Kokes noted six laceration on the back of appellant's scalp. The largest was four inches in length on the back left side of Mr. Clark's scalp. He described State's Exhibit Sixteen as being a picture of the back of Mr. Clark's head. In the picture at least five of the six lacerations were visible, including the four-inch laceration. Exhibit Sixteen was admitted without objection. Dr. Kokes explained that injuries in the photograph were consistent with being hit by a blunt force object.

Dr. Kokes testified that Mr. Clark also had sharp-force injuries to his neck, lower right cheek, lower left cheek and jaw line, front right shoulder, back left thigh, and inner surface of the left thigh. He explained that the sharp force-injuries were consistent with being cut or stabbed with a knife. However, the injuries did not indicate the weapon used to inflict the wounds. Dr. Kokes said that the injuries could be the result of a short-bladed knife. He said that the cut to Mr. Clark's neck was the result of multiple applications of sharp force superimposed on each other.

During his testimony, Dr. Kokes was shown State's Exhibits Twenty through Twenty-Six. Appellant objected to State's Exhibit Twenty-Two and State's Exhibit Twenty-Three. State's Exhibit Twenty-Two was a picture of a laceration on the upper part of Mr. Clark's right ear. State's Exhibit Twenty-Three was a close-up view of the back left side of Mr. Clark's neck. In addition to showing the extreme left end of a large neck wound, the photograph also showed multiple trailing cuts and abrasions. Appellant argued that photographs showing blunt force trauma had already been admitted. The trial court overruled appellant's objection. Appellant now argues that the trial court erred in overruling his objection.

As in all evidentiary matters, the admission of photographs rests within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). It has been repeatedly stated that when photographs are helpful to explain testimony, they are ordinarily admissible. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. Even the most gruesome photographs may be admissible if they assist the trier of fact by shedding light on some issue, proving a necessary element of the case, enabling a witness to testify more effectively, corroborating testimony, or enabling jurors to better understand the testimony. Id. Other acceptable purposes are to show the condition of the victim's body, the probable type or location of the injuries, and the position in which the body was discovered. Id. Photographs may also be helpful to the jury by showing the nature and extent of wounds and the savagery of the attack on the victim. Id.

Appellant first argues that State's Exhibit Twenty-Three, depicting a close up view of the injuries to the back left side of Mr. Clark's neck, was cumulative to other photographs showing the same wound. As stated above, the mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. Deasis v. State, Ark. , S.W.3d (Jan. 13, 2005). Accordingly, we can not say that the trial court abused its discretion in admitting State's Exhibit Twenty-Three.

Appellant concedes that State's Exhibit Twenty-Two, depicting the laceration to the upper back part of Mr. Clark's right ear, was not cumulative. Instead, he argues that the exhibit was irrelevant in that the wound it shows is a wound that was not fatal. Dr. Kokes testified that Mr. Clark sustained blunt force and sharp-force injuries. Exhibit Twenty-Two, depicted a blunt-force injury and further corroborated Dr. Kokes' testimony. Appellant fails to demonstrate that the trial court abused its discretion when it admitted State's Exhibit Twenty-Two.

Appellant is unable to show that the trial court abused its discretion in admitting State's Exhibits Twenty-Two and Twenty-Three. Therefore, we affirm the trial court's decision. Affirmed.

Hart and Vaught, JJ., agree.