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State v. Conyers9/5/2003
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B. Color Photograph of Victim
The appellant next contends that the trial court erred in allowing into evidence a color photograph of Mrs. Parker taken shortly after the attack. Specifically, the appellant alleges that "the photograph . . . was prejudicial in that it showed a great deal of blood on the face of the elderly victim as well as in the hair of the elderly victim." The appellant maintains that the testimony of Dr. Martin was sufficient to describe Mrs. Parker's injuries. Moreover, the appellant argues that the trial court should have instead admitted into evidence a black and white photograph depicting Mrs. Parker's injuries, which photograph the State had in its possession at trial. The State responds that the trial court did not err in admitting the color photograph because the photograph was relevant to prove serious bodily injury and the intent to commit first degree murder and to corroborate Mrs. Parker's testimony.
The decision regarding the admissibility of photographs lies within the sound discretion of the trial court and that ruling will not be overturned on appeal absent a showing of an abuse of that discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In order to be admitted as evidence, a photograph must be relevant to an issue at trial. Tenn. R. Evid. 402; State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). "`If relevant, the photograph is not rendered inadmissible because the subject portrayed could be described by words; . . . the photograph would be cumulative; . . . or [the photograph] is gruesome or for some other reason is likely to inflame the jury.'" Collins v. State, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973) (quoting 3 Wharton's Criminal Evidence § 637 (13th Edition)). However, relevant photographs may be excluded if their probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Tenn. R. Evid. 403; Banks, 564 S.W.2d at 951.
The photograph in question shows Mrs. Parker sitting in her kitchen with a significant amount of blood on her face and in her hair. Because the appellant was charged with especially aggravated robbery, the photograph was relevant to show that Mrs. Parker suffered serious bodily injury , an essential element of the offense. Tenn. Code Ann. § 39-13-403(a)(2). Moreover, the photograph corroborated Mrs. Parker's testimony regarding the events of the evening and the injuries she sustained. See State v. James Spurling, No. E2001-00601-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 962, at *10 (Knoxville, Nov. 7, 2002) (finding photographs of the victim in the hospital admissible to corroborate testimony regarding the victim's wounds). Furthermore, although the photograph shows a significant amount of blood, we do not find the photograph to be especially gruesome or horrifying. Accordingly, we conclude that the trial court did not abuse its discretion in admitting this photograph into evidence.
C. Jury Instructions
1. Failure to Properly Charge Especially Aggravated Burglary
The appellant contends that the trial court "erred in not charging the statutory language of especially aggravated burglary [under which the appellant] was indicted." The appellant asserts that " ince was indicted under the theory he entered the victim's residence with the intent to commit especially aggravated robbery and first degree murder, he was entitled to have the jury charged in regard to that law." The State maintains that both count one of the indictment and the trial court's instruction to the jury were sufficient to support the appellant's conviction for especially aggravated burglary. Again, we note that the appellant's conviction for especially ag
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