Page:BERRY V. STATE.pdf/4

Rh drove to Dallas, but ran out of money and returned to Texarkana the next day. They were arrested upon their return. The appellant gave a statement to one of the arresting officers to the effect that she was not aware of Mills' intentions until she entered her aunt's house and that she then went along with Mills because he threatened to kill her if she did not. The appellant helped the police recover the crowbar they had thrown away on the return trip from Dallas, and it was admitted into evidence against her.

At trial, the prosecuting attorney introduced nine photographs of the victim (including six of the victim's face), most of which were in color, over the objections of the appellant. The photographs, graphically showing the extensive injuries to the victim's face and some taken to emphasize those injuries, were accepted by the trial court without exception. They included photographs of the trail of blood where the victim was dragged, of the victim's body in a pool of blood at the scene, closeup autopsy photographs of the victim's face, an autopsy photograph of the side of the victim's head with the hair shaved to further expose the injuries, and a closeup of the victim's shattered teeth which had been removed from her mouth by the medical examiner.

The appellant objected that the photographs were not relevant in that the brutality of the murder, the cause of death, and the perpetrator of the injuries were all admitted by the appellant and it was uncontradicted that the appellant never touched the victim. The appellant argued that any probative value of the photographs was outweighed by the prejudice likely to result, and that at some point the photographs were merely cumulative and entered only to further incite passion against her.

The first question upon the proper introduction of photographs, as with all evidence, is whether they are relevant. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." A.R.E. Rule 401. If the evidence is relevant, it still "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." A.R.E. Rule 403. The determination of