Keith Lavell Thomas v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-82

OCTOBER 13, 2004

KEITH LAVELL THOMAS AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR02-1421]

v.

STATE OF ARKANSAS HONORABLE WILLARD PROCTOR,

APPELLEE JUDGE

AFFIRMED

Olly Neal, Judge

Appellant was convicted of manslaughter, aggravated robbery, and first-degree battery in connection with his role as the getaway driver for his accomplices, one of whom was shot and killed by the proprietor of Sim's Barbecue, the restaurant that was being robbed. He was sentenced to ten years in the Arkansas Department of Correction. We need not set out the facts of the manslaughter, aggravated robbery, or first-degree battery since appellant does not contend that the evidence presented was insufficient to sustain either of the convictions. Rather, on appeal appellant argues that the trial court committed reversible error in allowing the State to use the photograph of the murdered robbery participant in its closing argument alongside his and the other robbery participant's photographs because it served no valid purpose and was used only to inflame the jurors' passions. As there was no abuse of discretion, we affirm.

The trial court is given broad discretion to control counsel in closing arguments, and we will not interfere with that discretion absent a manifest abuse of discretion. Hardman v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 5, 2004). It is the trial court's duty to maintain control of the trial and to prohibit counsel from making improper arguments. Id.

Furthermore, the admission of photographs is a matter left to the sound discretion of the trial court. Matthews v. State, 352 Ark. 166, 99 S.W.3d 403 (2003). The trial court cannot simply give carte blanche to admission of any and all photographs of the crime scene and victim offered by the prosecutor; nevertheless, absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003); Matthews v. State, supra.

The mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. Smart v. State, supra. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Matthews v. State, supra.

Here, the photograph of the slain robber had already been introduced into evidence without objection. Only when the State requested permission to use the photograph in closing arguments in conjunction with the other photographs did appellant object to its use. We find no abuse of discretion in allowing the State's use of the already-admitted photograph during its closing argument and, therefore, affirm the trial court.

Affirmed.

Griffen and Roaf, JJ., agree.