*1 Raymond REESE, Appellant, of Texas. STATE
No. 73281. Appeals
Court of Criminal Texas.
Dec. *2 Roch, Atty., Elaine Asst. Dist. Hous-
S. Paul, Austin, ton, Atty., Matthew State’s for State.
PRICE, J., opinion delivered the MEYERS, HOLLAND, Court which WOMACK, JOHNSON, JJ„ joined. prohibits the Rule of Evidence 403 substantially that is admission than prejudicial probative more in criminal During punishment phase trials. trial, appellant’s capital murder trial court admitted a victim and unborn child in the lying together casket at their wake. Because we find that the admission of the photo graph violated Rule we hold that the trial court abused its in admit discretion ting photograph. was convicted of capital
murder.1 Pursuant answers special issues set forth in Code Criminal Procedure article 37.071 sections 2(b) 2(e), the trial judge sentenced appeal to death.2 Direct Court is automatic.3 The appellant raises points challenges five of error which he sentencing phase of his trial. punishment stage ap- trial, pellant’s the State offered and the trial court an eight-inch-by-ten- admitted inch color Paula Birdow (Paula), offense, a victim of the in her casket. Also visible child, Paula’s unborn who died when Paula was killed. The fetus been removed had from Paula after her death and wrapped appears ap- in what to be a blanket. The pellant objected to the admission of photograph. complained pho- He that, if tograph was irrelevant and even relevant, value was substan- tially outweighed by prejudice. unfair appellant’s The trial court overruled the Houston, C. appellant. objection. Allen Isbell. 19.03(a). 2(h). § Code § Penal 37.071 3.Art. 2(g). §
2. Art. 37.071 Unless otherwise indi- cated all future references to Articles refer to the Code of Criminal Procedure. third Paula kñled. One cannot tell from the In the second and error, it can- points complains how Paula died. Therefore evi- victim-impact consisted of not be relevant to show the manner *3 indict- dence of a victim not named the method of her death. result, argues, photo- As a the ment.4 It the shows arguable photograph is graph was irrelevant and inadmissible. consequences the and foreseeable results that, argues He if it rele- also even actions, being the the result appellant’s of vant, probative photo- the value the death.9 The could fore- Paula’s by substantially outweighed see a funeral would held for Paula. danger prejudice. the of unfair arguable photograph It is also the argues The State is appellant’s or shows the violent vicious (1) the manner meth- relevant to show and that a nature. The shows (2) death, od of Paula’s the and results we will pregnant woman died. Therefore consequences of the appellant’s foreseeable assume, deciding, without (3) actions, violent and to graph had least some relevance
vicious nature.
special
decision about the
issues.
First we must determine whether the
Next,
ad-
we
determine whether
must
was relevant. We have held
an
mission of
constitutes
may
that evidence
be admitted
abuse
discretion under Rule 403. Rele-
phase
matter the trial
punishment
any
“on
admissible,
generally
vant
but
evidence is
spe-
answering
to
court deems relevant
403
it is
excluded under Rule
properly
cial
Relevant evidence is that
issues.”5
probative
substantially
when “its
value is
tendency
which
to
any
“[has]
make the
danger
preju-
of unfair
outweighed
consequence
fact
any
existence
that is
10
unfairly prejudicial
dice.”
Evidence
to
determination of the action more or
tendency
suggest
when it has “an undue
less
The trial court’s determi-
probable.”6
an improper
that a decision be made on
relevancy
nation of
will not be reversed
11
403
basis.”
have said that
Rule
We
an
absent
abuse of discretion.7
include,
analysis by
trial court should
phase,
charged
to,
following
factors:
but is not limited
special
two
future
answering
issues:
(1)
evidence;
probative
how
is the
dangerousness
mitigation.8
(2)
potential
does not show
evidence
issue
irrational,
but
impress
It
some
the manner or method of Paula’s death.
way;
indelible
process by
does
show the
which
nevertheless
whether,
State,
(2)
taking into
all of
4.
v.
939
consideration
cites Cantu
627,
(hold-
evidence,
(Tex.Crim.App.1997)
including
S.W.2d
637
the circumstances
ing
victim-impact
offense,
that it was error
admit
defendant’s character
in the indict-
a victim not named
background,
personal moral
and the
irrelevant).
this evidence is
ment because
defendant,
culpability of the
there is a suffi-
that a
or circumstances to warrant
cient
State,
(Tex.Crim.
49
5.
v.
938 S.W.2d
Bell
imprisonment
than
sentence of life
rather
2(a).
§
App.1996). See also art. 37.071
imposed.
death sentence be
2(b)(1)
(2)(e)(1).
§§
&
Art. 37.071
6. Tex.R.Evid. 401.
Montgomery
810 S.W.2d
(pre-
photograph also shows the actions
9. The
(Op. Reh'g).
(Tex.Crim.App.1990)
on
sumably)
examiner or the mor-
of medical
tician.
special
jury to
8. The
issues ask the
determine:
(1)
probability
whether there
Tex.R.Evid.
acts
commit criminal
defendant would
continuing
violence that would constitute
Montgomery,
S.W.2d at 389.
society; and
threat to
(3)
court,
proponent
the time the
needs to
all due
appellate
affording
evidence;
decision,
develop-the
deference
the trial court’s
substantially
to be
more
(4)
nevertheless
proponent’s
need for the evi-
prejudicial
probative.14
than
dence.12
should,
reviewing
using
court
In the context
the trial court’s
standard,
abuse of discretion
“do more
admitting
photograph,
we should consid
than decide whether
did in
judge
photographs,
er: the
the size of
number
the required balancing
conduct
be-
photograph,
thé
whether it is in color or
values;
prejudicial
tween
white,
black and
the detail shown
*4
‘the trial court’s determination must be photograph, whether
is
photograph
”13
in
reasonable
view of all relevant facts.’
gruesome,
body
naked or
whether the
Therefore we hold that where the rele-
clothed,
body
whether the
has been
criteria,
vant
objectively
viewed as
as
in
altered since
crime
some
that
possible, lead to
that
the conclusion
the might
of the
gruesomeness
enhance
danger
prejudice
of unfair
substantially
to
photograph
appellant’s
detriment.15
outweighed the probative
value
photograph
The
at issue in
was
this case
proffered evidence, the appellate court
eight-inches-by ten-inches and in
color.
should declare that
trial
court erred
unborn
photograph, Paula and the
in failing to exclude it. Relevant criteria
fully
body
child are
clothed. Paula’s
had
gleaned
include,
from authorities
inter
altered;
was
been
fetus
removed from
alia,
the ultimate issue was not
body
her
in
wrapped
a blanket.
seriously
by
contested
the opponent;
only
There
photograph
one
of Paula
hád
convincing
State
other
evi-
casket admitted
evidence. This was
dence to establish the ultimate issue to
only photograph
admitted
relevant;
which the
[evidence]
punishment phase of the trial.
probative
of
value
the ... evidence
not,
either
or in
analysis
alone
combination
factor
first
for the Rule 403
evidence,
with other
particularly compel-
that we consider is the
value
ling;
such
[evidence] was of
begin
the evidence. We
the discussion
nature that a jury instruction
assuming
photograph
to disre-
relevant
gard
any
it
but
proffered
for
purpose
to show the results
conse-
and foreseeable
would
likely
not
have been efficacious.
quences
appellant’s
actions and the
Accordingly, when the
appellant’s
record reveals
violent and vicious nature.
one or more such relevant criteria rea-
purposes
relevant facts for those
are that
sonably
died,
conducing to a risk that
the Paula had
that Paula was
pregnant
probative value
death,
of the tendered evidence
the time of her
and that Paula’s
substantially outweighed
by unfair
unborn
died because she
child
died.
prejudice,
facts,
then
appellate
court should
shows
these
but
conclude
the trial court
incidentally.
acted irra-
taken at
it,
tionally
failing
just
to exclude
and thus
things
Paula’s funeral shows these
as
abused its discretion. The
court
or a
Paula’s tombstone
“right”
has no
to
if that
“wrong”
copy
obituary
newspaper
be
of her
means to admit
appears might
evidence which
show these facts. For the sake of
Id. Montgomery,
389-90.
white textured material. white photographs, The State had other admit- to the coffin. The placed flowers was next guilt-innocence phase, that during ted was open, lying coffin was and the victim purposes of proper would have served the in it with one of her hands and her face The offered and photograph. this State showing. The victim’s dress was white the crime photographs saw from gold and white buttons. She wore autopsies scene and from the of Michael Her gold earrings gold bracelet. showed photographs and Paula. These spiral had curls. Ma- hair been fixed with con- consequences of lipstick applied had to her genta lips, been killing. The duct his violent nature applied eye- had to her eye makeup been challenge did not Paula was lids, applied and blush been to her had or was also killed. killed fetus The child had been re- cheeks. unborn jury, al- by guilt, The its verdict had cleaned, and body,17 moved from her swad- beyond ready found a reasonable doubt material, possibly in white blanket. dled that the victim was dead. The placed unborn child next his facts, those but those was relevant show showing. mother with his face was during were dispute pun- facts not unborn child in form and is miniature phase. ishment only a size his face is fraction of his There no indication that the State had mother’s hand. fetus; pictures other of the but death consequence fact of of the fetus was not a depicts Although all If dispute. to an the line related issue facts, they these are not relevant to the here, where should it be is not drawn special issues. jury’s determination an ultra- drawn? from Would photograph ap- child in the unborn old be admis- of a three-month fetus sound tiny, innocent, pears and vulnerable. Soci- if killed in a violent the mother was sible protect is to ety’s natural inclination in a if killed traffic attack? she were What The contents innocent and the vulnerable. accident? impact an emotional has fac- and fourth find that second suggests that the decision We heavily in favor of the weigh appel- not on the on an emotional basis and tors made guilt-innocence phase of the trial 16. Post at 248. abdomen was still intact. show that Paula’s when the 17. The record does not indicate fetus was re- indication that the There no body. Paula's Photo- fetus was removed from attempt his life. save moved autopsy that were introduced graphs from the Although jurisdictions do possibly lant. the third and The cases from other weigh analysis first not our persuade factors in favor of the us that enough pursuant wrong. these are factors to Rule 403 is factors to overcome prejudicial qualities Having found that the court abused discretion, perform a harm need its we must State’s limited analysis. the context the contested is- sues. hold the photograph We harm appropriate standard of substantially prejudicial proba- more than Appellate found in Rule of Procedure tive the trial court abused 44.2(b). In v. we ex Johnson State23 by admitting discretion the photograph. plained that criminal conviction should “[a] not be overturned for non-constitutional
Because this is the first
time
Court
court,
appellate
error if the
after examin
has
a reviewed
of an unborn
whole,
casket,
ing
child in
the record as
has fair assur
the dissent
to other
looks
ance
jurisdictions
that the error did not influence the
dealt
with this is-
jury,
slight
but a
effect.”24
sue. The cases
had
cited
the dissent are
distinguishable.
argues
The State
that admission of
In
v. Alfieri,18
State
State Will
the photograph was harmless because the
iamson,19 Ohio and
per
Tennessee courts
photograph was cumulative of
al
pictures
mitted the admission of
of unborn
ready presented
jury.
to the
cases,
subjects
children.
both
pregnant
knew that Paula was
when she
pictures
victims named
description
and had
killed
heard
*6
indictments, and the photographs had been
Also,
the unborn child.
the
explains
State
during
introduced
the guilt-innocence only one
introduced.
phase of the
Although
trials.20
photo
the
Hence,
photo
the State concludes that the
graph in this case was
during
admitted
the
graph
improperly
could not have
influ
punishment phase when
is
evidence more
enced
jury.
response
the
But the State’s
admissible,
likely to be
the
that
facts
the
objection
to the appellant’s
at trial seems
photograph depict
not
are
facts
conse
to contradict this conclusion:
quence
dispute.
that were in
Well,
Appellant:
...
State’s Exhibit
68
compares
photo-
dissent also
no
or ma-
absolutely
is—has
relevance
graph in this case
that in
with
Beckwith v.
teriality
any
sought
give
issue
case,
State.21 In that
proof by
State
Texas. There’s
murder
victim his casket
any problem
was admitted.
not
identity
this
in that
photo-
court
case said that the
already
picture
trial. There’s
been a
introduced,
was relevant
to show
circum-
actually,
two
pictures
stances of the
and
killing
corpus
de-
well
morgue
wedding
as
as a
licti.22
dissent argues
photo.
that our case is
absolutely
only
This is
—the
very similar to
Again
being
Beckwith.
facts
this
reason
is
admitted —intro-
Honor,
duced,
that
the photograph
the instant case
Your
whip
is to
and,
show
consequence
jury
frenzy
are
facts of
that
into a
penalty
death
know,
disputed during
you
were
the punishment
inflammatory
that —its
and
phase
prejudicial
trial.
outweighs
pro-
nature
(1
(Miss.1997).
App.3d
18. 132
724
Ohio
N.E.2d 477
21. 707
So.2d
allowed,
Dist.),
appeal not
85 Ohio St.3d
(1999).
the before followed daughter appellant that the hit testified and Barbara. and Barbara appellant her once while the appellant gun found a the bed- The There evi- having argument. an was were Pau- room and shot Michael and then shot dence that on another occasion an officer apartment; la. Barbara ran out of the appellant’s had visited home because appellant pursued appel- her. When the that complaint dispute. of domestic At Barbara, caught lant hit her up with he ap- time Barbara told the officer gun, with and the bullet that fired was pellant had threatened her. gun grazed from head. that, testimony during was There a.m., off-duty police an offi- Around 1:00 trial years awaiting was appellant two complex cer who lived in the apartment offense, committed no rule vio- for this he After gunshots heard the and called 911. The and mater- appellant’s lations. sister lot. calling parking went he testified, they nal uncle both said gun The appellant officer saw the raise the not a appellant person. was violent trigger. pull to Barbara’s head had Barbara. The Neither relative met Then left appellant the scene. living been in Atlan- appellant’s sister had later, ta, time out appellant Some called from 1985 until The Georgia, police appellant’s to a officer on his to the scene. uncle testified that he had nev- been home. appellant voluntarily The surrendered er the officer. analyzes The the first three appellant argues He together. Keeton factors examiner, Mi-
According to the medical weigh favor because these factors his wound indicated that the was gun chael’s planned long was in ad- the offense not twenty-four from victim. least inches vance, in an the victims were not killed gun indicated that the was Paula’s wound manner, especially brutal offense away from about one-and-one-half inches was committed while was intoxicated the victim. agitated. any appellant did offer jury may But the have considered guilt-innocence phase particularly the victims were vul- gave trial. The court an instruction jurors may have assumed nerable. charge. on self-defense in the knew that Paula was appellant the State phase, and that Michael suffered from pregnant prior introduced two convictions. asthma. The was Michael robbery when first was conviction get struggled appellant with the years old. The sec- sixteen Also, the him from Paula. victims away for attempted posses- ond a conviction appel- primary target were not the weapon.34 No other con- deadly sion of appellant had been hav- anger. lant’s at the trial. victions admitted ing girlfriend, who argument his forty-eight years old when get the victims to help enlisted the *9 he committed the instant offense. The apartment. to the appellant leave un- apartment appellant The State introduced evidence started to leave the guilt-inno- the in- charged during killing, misconduct but then went back before the ap- punishment According testimony, the the during cence and the side. to phase the one to brandish appel- pellant Barbara that the was phase. testified killing weapon night.35 After Michael eye years some that given lant had her black questions were at trial about a sec- possession of a 35. There robbery attempted and The missing butcher block in ond knife from the weapon deadly offenses were committed kitchen, testimony was that a the but there no New York. against appellant. been used the knife had Michael, Paula, by argues appellant and he chased Barbara tried to cal attack the and her, though weighs kill He at factor in his favor. too. shot Barbara the sixth pleaded testimony she with the him to shoot her. The trial indicates in, assault- appellant After he turned himself became became violent first he ing appellant violent again. sitting police grabbed While the Paula. Michael the car, against to partition prevent hurting he beat his head the him from Paula. and kicked the car window. argues that the vic- appellant also
The appellant argues that the fourth tims him the where pursued into bedroom Keeton factor weighs his favor because gun he shot found the Michael prior his convictions were more than twen- apart- Paula. He chose to remain at the old, ty years ignoring the fact his argument ment out of spiraled while uncharged misconduct an escalat- indicates Therefore, jury may control. ing pattern living violence. While found that the stressful situation Barbara, he her threatened life caused, part, by at least in appellant’s lives of her children. The own conduct. appellant trial indicated that the assaulted appellant significant finds it daughter Barbara twice and her once. On any psychiatric the State did not offer murders, night appellant evidence, relevant to the seventh factor. Paula, again, made threats assaulted then require produce We do not the State to killed Michael and Paula kill and tried to dang psychiatric prove evidence to future Also, Barbara. the appellant became vio- fact This alone does not erousness.36 lent in police car after surrendering to compel jury appellant to find that the police. will not to danger constitute future soci appellant claims that ety. fifth factor also weighs his favor because The appellant argues that the State of- he forty-eight at the time of of fered no character evidence fense, he was embroiled a domestic dis phase. stages both pute, and he had disciplinary no problems trial, showed, the evidence admitted in jail awaiting
while jury may trial. The through acts of appellant, view appellant’s age mitigating as had the to commit violence capacity acts of aggravating. Also jury was not re in the future. The need State did not quired give mitigating weight to produce a witness to summarize for the that the murders place took context jurors they what had heard for themselves. of a long-term domestic dispute. Jurors viewing light After aggravating entitled view as cir verdict, most favorable to the we cumstances the fact hold that a rational could find that kill try would his girlfriend he had lived there is a probability years with for thirteen and would kill her would commit criminal acts of violence in pregnant daughter daughter’s point The appellant’s future. first husband. The not required error is overruled. jail view the appellant’s pretrial behavior mitigating. as The appellant was indicted conviction is affirmed. murder; capital it was in his best vacated, case is sentence jail interest to behave well while in await remanded to the trial court for new ing trial. punishment hearing.
Because he was under duress from do- MANSFIELD, J., problems dissenting mestic filed a were exacerbated physi- opinion. the verbal from Paula abuse and the 470, State, 1995). v. (Tex.Cr.App.
36. Matamoros 901 S.W.2d 474 248 J.,
KELLER, dissenting opinion already presented through a has been verbal filed McCORMICK, J., testimony.2 in which P. J.,
KEASLER, joined. then, is whether the question, The first depicted photo- contested matters MANSFIELD, J., dissenting delivered testimony subject proper opinion. capital punishment phase in the this Dr. Narula of the Harris Harminder showed prosecution. murder County Medical Examiner’s testified Office child, fully Paula and her unborn both at trial that the victim named in indict- clothed,3 side-by-side a casket. lying ment, Birdow, was six approximately Paula on argument Most of the focuses Court’s pregnant months at time she was presence photo- the unborn child’s appellant. killed Dr. Narula by the testi- graph. viable, her fied further unborn child was The Court contends that “the death he outside the meaning could lived consequence fetus not a fact of Testimony appel- womb. at trial showed dispute.”4 an Because related to issue lant was pregnant knew victim when Rule wrong, the Court’s Accordingly, her. I believe the contention killed flawed from outset. analysis 403 entitled to see the child, being evidence both unborn such permits Article the introduction 37.071 relevant and the context of special relevant to the any evidence special respectfully both issues. I dissent. rele- acts” constitute issues.5 Violent “bad they if vant tend KELLER, J., dissenting delivered upon or reflect dangerousness show fixture P.J., McCORMICK, opinion in which And culpability.6 moral the defendant’s KEASLER, J., joined. against people bad need not be such acts have held qualify It is old but cliche that a for consideration. We trae brutally the fact that defendant is worth a thousand words. Our caselaw against generally, photo- dog7 killed even a cats8 reflects truism: special if owners’ is relevant to the graphs are verbal wishes admissible punishment. depicted and admissible about the matters issues of an a defendant causes the death be admissible.1 Visual evi- When graphs would prospective par- child against even if the highly probative, dence can be unborn wishes, has the defendant committed what ents’ simply visual evidence corroborates offense, 186, State, (Tex. character 195 defendant's 1. v. 958 S.W.2d Williams 1997). personal background, moral Crim.App. defendant, culpability there is a suffi- 230, State, v. 2. 998 S.W.2d 236-237 Chamberlain circum- mitigating cient circumstance or (T 1999). ex.Crim.App. of life to warrant that a sentence stances imprisonment rather a death sentence than appears wrapped 3. The in what fetus imposed. be a blanket. Procedure, Code of Criminal Article Texas 37.071, 2(e)(1). § Op. 242. State, 697, 734 Cooks v. 844 S.W.2d See Procedure, Article 5. Texas Code Criminal initiated (Tex.Crim.App.1992)(angry outbursts (e). 2(a); 2(b) §§ § & see also 37.071 defendant). by dangerousness issue asks: "whether future probability there the defendant 351, State, Willingham S.W.2d 355 v. 897 acts of violence would commit criminal State, 1995); v. 853 (Tex.Crim.App. Johnson continuing threat to soci- would constitute (Tex.Crim.App.1992). 37.071, 2(b)(1). S.W.2d ety.” § Article mitigation asks: issue (Tex. Whether, Emery S.W.2d taking into consideration all 1994). evidence, Crim.App. including circumstances *11 case, a bad In woman but also cause the young violent act. such a a unborn child’s death death fetus. is circumstance rel- of that evant to the the spe- assessment of ad- already has been issues, cial and the State should be allowed mitted, ruled that you therefore prove argue to that circumstance to in this are photograph facts involved reason, For jury. depiction that of the good in photograph admissible. The is not, itself, unborn child’s death was in attempt taste. didn’t to introduce a We basis declaring in this bloody fetus unfairly prejudicial. case to be We chose to admit a stomach. good is in taste shows Prejudice caused that that appel- fact that fair, lant results defendant’s handiwork baby killed Paula’s unborn unfair, nothing is that is so weighed prejudi- and should not there cial against outweighs the State in that value analysis. a Rule 403 danger to he is in fact a show that future So, Court it sug- is mistaken when because if he will do an act that is going gests prejudice that unfair occurs because something to that be—be results “unborn child in the ap- something death of like that then he will innocent, pears tiny, and vulnerable anything highly do and I it believe is [and][s]ociety’s natural inclination is to probative. protect the innocent and vulnerable.”9 [DEFENSE also cu- COUNSEL]: It’s That appellant terminated the life of an repetitious. mulative and she Whatever innocent and vulnerable member society trying bring jury already to to this perfectly legitimate is a point for the State question. their minds. is no There to make. That appellant would terminate a life so innocent and vulnerable shows THE do make They COURT: have to just dangerous how morally blamewor- this. I am wondering decision on What thy he is. brings is if of— to them a sense sense what man has done and analysis, its harm the Court contends they pass that in to want on order that the State “seems admit” make the verdict. proper jury was intended to influence the make its decision on improper basis. exactly right. That is [PROSECUTOR]: made State no such admission. The making polemical State was point full context the conversation shows that its response: of course the argued State the photograph prejudice jury was intended to relevant under special issues: spur it to special answer issues [DEFENSE Then —I COUNSEL]: favor; argument State’s the State’s strictly, Honor, mean this is Your prejudice produced was not unfair but prejudice get inflame and legitimate.10 Immediately following this Special them to answer the Issues One colloquy, point: court made the and Two such a that Mr. Reese THE society gone Are we a so COURT: will die. soft that we can trial of this and Well, as a matter of [PROSECUTOR]: yet not have the confront the effect However, fact that true. it is based judg- on which it is passing the dead on fact. The must prove State ment? is a future danger. defendant There is
no better evidence
show
A
de-
the dead unborn child
danger
conveys nothing
fendant is
future
than the
full effect
more than the
willing
he is
to shoot and kill not
actions.
Op.
Montgomery,
at 242.
10. See
The Court also an Ohio court evaluated If argument. the evidence in slope” the The defen- photograph a dead fetus.12 admissible, present case Court asks aggra- in that was convicted of dant ease three- picture whether ultrasound of a causing the vated vehicular homicide for month-old fetus would be admissible of a At pregnancy.13 unlawful termination a fetus’ would be admissi- whether trial, guilt photograph stage ble if the fetus were killed in a traffic fetus was admitted into evidence.14 The strang- was not accident. But “fetus, depicted fully photograph happened er who killed a woman who cap long gown; no clothed a knitted and be nor pregnant, was death body, excep- portion of the fetus’s case present Appellant an accidental one. hands, face are tion and visible [of] Paula, pregnant, knew knew she was photograph signs and no outward infer the familial rela- could from injury apparent.”15 The physical are tionship knew that Paula Appeals that the trial Court of concluded looking her husband were forward court did not abuse its discretion under having Despite appellant’s child.11 of Rule 403 in admitting Ohio’sversion specific knowledge circumstances “(1) only one because: surrounding Paula’s he inten- pregnancy, (2) evidence, introduced into graph was tionally end life that of chose to unduly gruesome, was not Perhaps her unborn child. there are (3) (that hypothetical situations in which a fetus’ it of a material might so death unforeseeable terminated as result pregnancy was person should not be saddled with collision) and was illustrative 16 impact might have on death testimony medical on issue.” punishment. But assessment of Williamson, In State v. the Tennessee not the case us. before Appeals Court of Criminal addressed final question is whether unfair admissibility photograph.17 a similar prejudice generated present charged The defendant was with vehicular by the manner in which the unborn case of a resulting in the death viable homicide depicted. signifi- death was Three child’s the photo- fetus.18 The court found that man- aspects cant reflect the relevant to establish viabili- graph was (1) depiction: ner of child was unborn fetus, ty of the an element of offense apart show from the mother outside rejecting at trial.19 In was contested (2) (3) womb, lying in clothing, dressed the defendant’s contention that doctor’s authority Finding in a casket. no Texas and a of the fetus facts, regarding significance of these I unfairly prejudicial under Tennes- have conducted some research other 403, of Rule the court de- see’s version jurisdictions help wheth- determining follows: “The scribed the as er deci- these facts should be considered not In State v. infant victim was 403 balance. sive Rule added). (bracketed 15. Id. trial showed that this would material Evidence at have been first child and that Michael's especially com- excited about the child’s at 487. Id. ing birth. 69, Williamson, 919 S.W.2d 78-79 Alfieri, App.3d 17. State v. 12. State 132 Ohio (1 Dist.1998), appeal 1995). N.E.2d (Tenn.Crim.App. 486-487 allowed, 1477, 709 85 Ohio St.3d N.E.2d (1999). 18. Id. at 79. 13. Id. 19. Id. at 486. Id. *13 gruesome. fully The infant was clothed evance The trial court over- grounds.22 eyes objection of the infant and admitted and were shut.”20 ruled the defense photographs ap- into evidence.23 On case present analogous to Alfieri argued that peal, photo- the defendant In and Williamson. each of the latter two graphs had no value after the cases, the concerning the fetus identity, stipulated defense the victim’s was relevant to an element of the offense argued photo- and the defendant that the charged. The in each photograph case graphs only preju- “served to inflame and was considered though admissible even sympathy dice the and create for the government possessed and introduced oth- Mississippi victim and his family.”24 non-photographic testimony er relevant photographs Supreme Court held prove the Although same facts. the death were relevant to show the circumstances of viability of Paula’s unborn child were delicti, corpus and the and that killing capital not elements of the murder offense “[ajlthough unpleasant, any photo- as are case, in present those facts were rele- graphs body, pho- of a murder victim’s vant dangerousness to both the future in tographs gruesome were not so or used mitigation special issues. And the overly prejudicial such a as to be in the present case had characteris- inflammatory.”25 tics in similar those discussed the two out-of-state cases: photograph was not The other case uncovered our re gruesome, any injuries, Corp. it did not show search Furniture v. is Kane Mi randa, fully the fetus in only appeal wrongful clothed with a civil death eyes face exposed Finally, part closed. as action.26 of a casket Alfieri, in very the State in present presentation, depict case emotional slide photograph ing: wedding; daughter’s introduced one of the fe- “the Mirandas’ Christmas; tus. graduation; family birthday celebrations; Disney visits to World and only potentially significant differ SeaEscape; and decedent’s casket.”27 ence between the pres presented by Detailed was also ent case and those in and William Alfieri good-natured four witnesses about the dis son is that in this case decedent, position loving family lying showed the fetus a casket beside Mirandas, and the fami relationship of My his dead mother. research has uncov ly’s to the decedent’s death.28 reaction ered two involving photographs cases found that Appeals The Florida Court although caskets neither involved a dead “presentation prejudicial was so as Beckwith, State, In fetus. the defendant Kane of a fair trial.”29 deprived murder, charged and the State guilt phase present introduced into evidence case is more similar to Beckwith, of trial photographs, two taken two Beckwith than to Kane. As funerals, body different in the is a present the victim’s case stipulated The defense to the of the bodies inside the casket. casket.21 objected identity photograph’s of the deceased and to The relevance is derived Kane, photographs portrayal the introduction of the on rel- from its of the bodies. 20. Id. 25. Id. at 594.
21. Beckwith v.
707 So.2d
Dist.1987)
(Fla.App. 2
26.
however, the apparently casket was shown trial court did not abuse its discretion sake, admitting photograph. for its own it was shown part as marginally of what was best a relevant significant events in
depiction the de- life.
ceased’s present
And the case *14 only
was the un- photograph depicting the Appellant given any
born child. has not us possessed
reason to believe that the State TORRES, Roy Appellant, fetus, any other much photographs less an alternative photograph picturing omitting the fetus without the casket or The STATE Texas. objection- some other detail finds appellant No. 238-00. able. Appeals Court of Criminal of Texas. viewing
After case, present reviewing holdings in Dec. jurisdictions, persuaded other I am determining the trial court not err in did relevant photograph was and that substantially was not value
outweighed by danger of unfair preju- Appellant
dice. knew Paula was pregnant her,
at the time he shot while of im-
graph, significant emotional really just
port, logical illustrates the consequences
foreseeable ac- image
tions. The of the fetus was relevant help visualize circum- by helping
stances of the crime un- them stage
derstand and what preg- visualize
nancy Paula in. The photograph did, enormity appellant
showed the of what
gave of the kind harm sense victims, upon inflicted person
showed kind of would
have to be to commit such a crime. Be- only
cause the was the evi- containing image,
dence the unborn child’s high.
the State’s need for it was And pho- the State introduced one
because nature, of this
tograph did
require pres- much of the State’s time to
ent. a Rule perspective,
From this is a usually
hard case. trial courts are But cases,
given deference on the hard I would should occur here. hold that