Prunty v. State

Frank Holt, Justice.

Appellant was convicted by a jury of manslaughter, Ark. Stat. Ann. § 41-1504 (3) (Repl. 1977), and fleeing from an attempted arrest in violation of Ark. Stat. Ann. §§ 41-2822 and 41-2823 (Repl. 1977). He was sentenced to ten years and five years, respectively, to be served consecutively. The only issue raised on appeal is the admissibility of two photographs of the deceased.

A police officer observed appellant, who was intoxicated, at night driving erratically — weaving, passing cars in no-passing zones, and running cars off the road. He attempted to stop appellant, but appellant fled. A chase ensued with speeds in excess of 100 m.p.h. As they approached a curved stretch of road, appellant, driving in the wrong lane, struck an oncoming car. At the time of impact, the officer estimated appellant’s speed in excess of 120 m.p.h. Appellant’s Oldsmobile traveled 189', hit a sign, became air borne, and stopped in a ditch approximately 244' from the point of impact. The other car, a Pinto, exploded upon impact, and the car was demolished. The driver received severe injuries, and his passenger, his wife, was killed instantly.

Without objection, the state introduced several photographs depicting the scene and the condition of the two cars. However, trial counsel objected to the admissibility of two photographs of the deceased before she was removed from the wreckage. The objection was that these photographs would add nothing other than have a highly prejudicial effect which would outweigh any probative value they might have and that other evidence would “probably be introduced” to the effect she died as a result of injuries received in the collision. The trial judge overruled the objection, stating they were not color photographs, they were the best evidence of a part of what happened at the scene, and they were of probative value on the issue of “speed, force of impact.” Appellant argues here that the probative value is substantially outweighed by their prejudicial nature and, therefore, should be excluded, Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1977); and, further, the photographs are inflammatory, cumulative and irrelevant to the element of recklessness which is essential to the crime of manslaughter.

We have held that even inflammatory photographs are admissible in the sound discretion of the trial judge “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979); see also Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979); Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973); Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980); and Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). Whether or not the court should admit a photograph depends upon whether the asserted inflammatory nature is outweighed by its probative value; and neither is it rendered inadmissible merely because it is cumulative or unnecessary due to admitted or other facts proved. Campbell v. State, supra. Here, the photographs, which were in black and white, were close-up views of the deceased, showing only the head injuries, and not the full extent of the injuries sustained to the other parts of her body. In our view they corroborated testimony as to the head injuries, which caused death, the reckless and excessive speed and the force of impact. Further, they were relevant to the state’s burden of proving the essential element of the crime of manslaughter; namely, recklessly causing the death of another person due to a conscious disregard of the risks involved in one’s conduct.

We hold the trial court did not abuse its discretion in weighing the probative value of the photographs against the danger of any unfair prejudice.

Affirmed.

Purtle and Mays, JJ., dissent.