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State v. Thomas2/27/2004
be used.
During the guilt phase of the trial, the photograph of the victim was introduced through the testimony of Betty Gay, an employee of Walgreens.
On appeal, Defendant Thomas contends that admission of an 8 by 10 black and white photograph of the victim taken during his lifetime was introduced for the sole purpose of invoking the sympathy of the jury and was error. The State responds that the photograph was relevant to rebut Defendant Thomas' defense that it was Mr. Day's physical health, including obesity, that caused his death, rather than the gunshot.
The admission of photographs is generally discretionary with the trial court and absent an abuse of that discretion, will not result in the grant of a new trial. See State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In State v. Nesbit, 978 S.W.2d 872 at app. 901-02 & n. 2 (Tenn. 1998), cert. den. 526 U.S. 1052, 119 S.Ct. 1359 (1999), a capital case involving almost the identical issue, our supreme court adopted this Court's conclusion that, although the requirement of a reasonable creature in being has been removed from the current criminal code, admission of a family portrait of the victim was not error because it was relevant to establish the corpus delicti, including the identity of the person alleged to have been killed. In Bolden v. State, 140 Tenn. 118, 120, 203 S.W. 755 (Tenn. 1918), our supreme court held that the evidence necessary "to establish the corpus delicti in cases of homicide must show that the life of a human being has been taken, which question involves the subordinate inquiry as to the identity of the person charged to have been killed . . . ." (emphasis added). Thus, the photograph was relevant and we find no reversible error in its admission during the guilt phase of the trial.
B. Photographs of Victim Post-Mortem
During the re-direct examination of Faye Day, the victim's widow, the State introduced two post-mortem photographs depicting the victim's face and back respectively. The State asserted that the photographs were relevant in light of Mrs. Day's testimony describing how her husband "blew up" shortly before his death and in light of questions by defense counsel regarding the victim's obesity. The trial court, reflecting upon Mrs. Day's testimony, permitted introduction of the photographs, finding:
I think in light of her testimony regarding his condition those last couple of days, I think they're relevant at this point - the probative value clearly outweighs whatever prejudicial effect there would be. There's nothing graphic or bloody[.]
Defendant Thomas now contends that admission of these photographs was error. Without reference to the specific photographs complained of and without argument to those photographs actually introduced, Defendant Thomas complains that the "gruesome photographs of the victim violates the Defendant's rights under the federal and state constitutions. . . ." The State properly argues that Defendant Thomas has waived this issue for failure to offer citation to the record. See Tenn. Ct. Crim. App. R. 10(b). Notwithstanding procedural waiver of this issue for noncompliance with the Rules of this Court, we elect to address the issue on its merits.
As previously stated, Tennessee courts have liberally allowed the admission of photographs in both civil and criminal cases. See Banks, 564 S.W.2d at 949. Accordingly, the admissibility of photographs lies within the discretion of the trial court whose ruling will not be overturned on appeal except upon a clear showing of an abuse of discretion. See id.; see also State v. Hall, 8 S.W.3d 593, 602 (Tenn. 1999), cert. denie
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