John Ray Boyd v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-503

DIVISION IV

JOHN RAY BOYD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-503

December 14, 2005

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[CR2003-483]

HON. GARY COTTRELL,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Crawford County jury found John Ray Boyd guilty of first-degree murder in the shooting death of his son-in-law James Jenkins, and he was sentenced to thirty-five years' imprisonment. His sole point on appeal is that the trial court erred in admitting into evidence certain photographs taken of the crime scene and during the autopsy. We affirm.

Appellant filed a motion in limine requesting that certain photographs be excluded because he alleged that their prejudicial impact outweighed their probative value. A hearing was held on January 11, 2005, to discuss appellant's motion, and appellant asked the trial court to review State's Exhibits 2, 3, 4, 6, 9, 10, 11, 21, 22, 24, 25, 26, and 27. According to the State, Dr. Charles Paul Kokes, the chief medical examiner at the Arkansas State Crime Laboratory, had asked that certain photographs be introduced and said that he would explain the significance of each one. The State also stated that Detective Aaron Beshears from the Crawford County Sheriff's Office would testify as to the significance of several of the crime-scene photographs. In denying appellant's motion in limine, the trial court found that the

State should be given the opportunity to present its case and that the photographs were not unduly prejudicial.

At trial, the testimony revealed that appellant arrived at a family cookout at Jenkins's house on October 12, 2003. Appellant's stepdaughter Zula Kathy Jenkins ("Kathy") spoke to him in the front yard. Appellant hugged Kathy and said that he was sorry and that he loved her. He then asked to speak to Jenkins alone. Kathy went to the backyard and told Jenkins that appellant wanted to talk to him. She also told Jenkins that appellant was acting "funny" and that it looked as though he had been crying. Reluctantly, Jenkins got a can of beer from the refrigerator and went out to the front yard to speak to appellant. Meanwhile, Kathy had gone to the backyard and told Jenkins's mother that she had "a bad feeling." About that time, they heard a gunshot. Kathy ran to the front yard, and appellant said, "I shot the bastard. It's over." He then propped his shotgun against a tree and grabbed Kathy's wrist to prevent her from going to Jenkins. Appellant told Kathy that it was not something he had thought of that morning, that he had been thinking about it for a few days, and that Jenkins was not going to take her and his grandchildren away from him. At trial, appellant argued that, although he killed Jenkins, he did not do so with the requisite intent to support a conviction for first-degree murder.

On appeal, appellant challenges the admission of State's Exhibits 2, 4, 5, and 6, which were photographs taken of the crime scene. Exhibits 2 and 4 showed Jenkins's body from different perspectives: the first photograph was taken from his head to his feet, whereas the second one was taken from his feet to his head. Both photographs showed Jenkins as he lay in a pool of blood. Exhibit 5 depicted Jenkins's legs and a full can of beer, and Exhibit 6 showed a side view of Jenkins.

During the trial, Dr. Kokes testified that Exhibit 2 showed where Jenkins's head had struck a large rock and some gravel, which accounted for bruising and scrapes depicted in the autopsy photographs. He stated that Exhibit 2 also showed EKG patches, which was evidence of the medical attention the victim had received in an effort to save his life. According to Dr. Kokes, the amount of blood and its flow depicted in Exhibits 2 and 4 indicated that Jenkins did not die immediately.

Detective Beshears testified that Exhibits 2 and 4 were shot from different angles and showed where Jenkins lay in relation to the house. The exhibits also showed that Jenkins's feet and legs were in the roadway. He stated that Exhibit 5 showed Jenkins's legs and a full can of beer. Finally, Detective Beshears stated that Exhibit 6 showed the house's position directly north of the victim's head.

Appellant also challenges on appeal the admission of State's Exhibits 21, 22, 23, and 24, which were autopsy photos. Exhibits 21 and 22 were photographs of the shotgun wounds on the back of Jenkins's head. Exhibit 22 was a close-up version of Exhibit 21. Exhibit 23 was a photograph of injuries to Jenkins's ear, and Exhibit 24 was a photograph of Jenkins's face.

Dr. Kokes testified that Exhibit 21 was an overall view of the back of Jenkins's head and neck area. He noted that there were several areas of dark discoloration representing blunt-force injury. Dr. Kokes explained that some of the injuries were directly related to the shotgun discharge, while others were not. He distinguished between actual pellet injuries and injuries that were most likely the result of the impact of a wadding, or plastic piston. Dr. Kokes stated that Exhibit 22 was a close-up of what he had just described and more clearly showed the single-pellet-entry wounds. Dr. Kokes testified that Exhibit 23 showed injuries to Jenkins's ear and lower-left side of his head that resulted from wadding or a pellet injurythat did not deeply penetrate the skin. Dr. Kokes indicated that Exhibit 24 was a frontal, facial view of Jenkins taken as standard procedure in any examination to show the identifying features of the deceased. He further stated that Exhibit 24 showed a pellet exit wound on the upper left front side of Jenkins's scalp.

The admission and relevancy of photographs is a matter within the sound discretion of the trial court, and the mere fact that photos are inflammatory will not render them inadmissible. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). We have often held that a photograph is not inadmissible merely because it is cumulative and that the defendant cannot admit the facts portrayed and thereby prevent the State from putting on its proof. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977). Even the most gruesome photographs have been held admissible if they tend to shed some light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). 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 a body is discovered. Id.

This court will not reverse a trial court's admission of photographs absent an abuse of discretion. Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000). In Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997), the supreme court discussed the admission of photographs at trial:

Although highly deferential to the trial court's discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against "promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer." Id. at 228, 718 S.W.2d at 450. This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographsagainst their prejudicial nature. Id. at 228-29, 718 S.W.2d at 450. We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.

Camargo, 327 Ark. at 637, 940 S.W.2d at 467.

On appeal, appellant contends that the trial court erred in admitting en masse all of the photographs offered by the State. Appellant contends that the trial court should have considered the photographs individually and refused to admit the cumulative ones. He argues that the crime-scene photographs were particularly gruesome and that only one photograph was necessary to effectively illustrate the massive loss of blood. Appellant maintains that the State's "thinly disguised" attempt to make repetitious photographs relevant by taking the photographs from different angles or showing other items of evidence does not dilute their prejudicial impact. Specifically, appellant argues that either Exhibit 2 or Exhibit 4 should have been admitted, but not both. He contends that both Exhibits 5 and 6 should have been excluded. Appellant argues that either Exhibit 21 or Exhibit 22 should have been admitted, but not both. He further contends that Exhibits 23 and 24 should have been excluded because they were cumulative and their prejudicial effect outweighed their probative value.

As a preliminary matter, appellant's argument as to Exhibit 5 is not preserved for review. At trial, defense counsel objected to the prosecutor's motion to introduce State's Exhibits 1 through 19 into evidence. His objection was:

I know you've previously ruled. I want to renew my objection at this time. The same basis as previously stated in the presentation of the Motion in Limine.

At the hearing on his motion in limine, appellant requested that the trial court review specific exhibits, not including Exhibit 5. Accordingly, appellant failed to raise any argument regarding Exhibit 5 in the trial court by a pretrial motion or by a specific objection at trial. We will not address arguments raised for the first time on appeal. See Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

In addition, while appellant failed to include a copy of Exhibit 23 in his addendum, it is clear from Dr. Kokes's abstracted testimony that Exhibit 23 depicted injuries to the victim's ear. Appellant should have included the undoubtedly relevant exhibit in his addendum; however, instead of ordering rebriefing, we are addressing the matter in the interest of expediting the disposition of appellant's appeal. In reference to the exhibit, Dr. Kokes testified that a relatively deep abrasion, located below the victim's ear and outlined in red, likely resulted from the piston or wadding associated with the shotgun injury. He also described an injury on the back of the victim's ear as "a central, shallow perforation and surrounding abrasion," which could have been a separate pellet injury that simply did not deeply penetrate the skin or could be associated with wadding. Admission of Exhibit 23 allowed Dr. Kokes to testify more effectively regarding the particular type of injuries sustained by the victim. See Goff, supra. We cannot say the trial court abused its discretion in admitting the photograph.

Photographs may be admissible even if they are cumulative to other evidence presented. Kenyon v. State, 58 Ark. App. 24, 946 S.W.2d 705 (1997). Not only were the photographs representing Exhibits 2 and 4 taken from opposite perspectives, Dr. Kokes used both exhibits during his testimony. While Exhibit 2 clearly depicted a large rock that resulted in injury to Jenkins's head, Exhibit 4 more clearly depicted the blood flow around Jenkins's body indicating that he did not die immediately. Detective Beshears used Exhibit 6, depicting a distant side view of Jenkins's body, to describe where the body lay in relation to the house. Dr. Kokes testified extensively about the injuries depicted in Exhibit 21 and stated that Exhibit 22 provided a better view of, specifically, the single-pellet injuries he haddescribed during his earlier testimony. Even if photographs are inflammatory or prejudicial in the sense that they show human gore repulsive to the jurors, they are nevertheless admissible within the trial court's discretion if they help the jury understand the accompanying testimony. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). The mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). The admission of both photographs allowed Dr. Kokes to testify more effectively regarding the victim's distinctive injuries, which likely resulted in enabling the jury to better understand his testimony. Admitting Exhibit 24 permitted Dr. Kokes to testify more effectively regarding an exit wound that can be seen in the photograph of Jenkins's face. For these reasons, we cannot say that the trial court abused its discretion in the admission of the photographs.

Affirmed.

Pittman, C.J., and Hart, J., agree.