Berry v. State/Dissent Hickman
DARRELL HICKMAN, Justice, dissenting. In reviewing records of brutal and senseless murders, we have numerous times seen photographs as gruesome as these. The state had a right to prove its case and to recreate for the jury the last few desperate and horror-filled moments of a defenseless old lady being brutally bludgeoned to death by Berry's boyfriend. Furthermore, the evidence is viewed in the light most favorable to the state, not most favorable to the defendant as the majority has done. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986). The record reflects that Berry chose the victim, conspired in the killing and was present at the murder scene at the time of the murder. We do not know if she used the crow bar. She may have helped. We do know that she could have stepped into stop the blows which were repeatedly struck to kill her great aunt. The boyfriend said the first blow did not knock her out so he kept hitting her until he (Mills) blacked out. No doubt his blackout was a psychological block to save his mind from reliving his dark deed. But relive it he should, and relive it Berry should.
Berry did not want to see nor the jury to see what she had wrought. The photographs demonstrate the brutal repeated use of the weapon—a crow bar. The assailant, or assailants, would not stop beating the woman; repeatedly she was struck about the face and head until she was dead. These photographs demonstrate the brutality, the severity, and the facts of the murder. She was not killed by one blow, but many. The jury was entitled to witness the murder as evidenced by the photographs.
Defendants do not want juries to see the crime scene. Defendants—and it is their right to try—want to keep as much grisly evidence from the jury as possible so that they can disassociate themselves from those black moments when their inhumanity surfaced and deliberately caused the death of another person. A sterile courtroom scene, removed as far as possible from the facts of the killing is what they seek. However, the state has a right to try its case and to recreate the crime as it was committed when there were not witnesses. Victims have a right for a jury to see what was done to them just as society has that right.
We have viewed photographs of the bruised and battered bodies of small infants. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985); Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979). We have viewed photographs of victims with their heads bashed in or beaten to a pulp. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Those in this case were no worse than some in other cases. It is not a pleasant task to review such evidence, but murder is not a pretty business. The majority simply concludes there was an "excessive" number of photographs. All six photographs were different and needed for the state to present its case to the jury. The majority has simply substituted its judgment for that of the trial court. More importantly no guideline is set down for future cases. We will be asked in every case to find too many photographs were introduced. Because of the vagueness of the majority opinion we will do two things: tie the state's hands and create for ourselves more problems than we solve. Berry was convicted because of the overwhelming evidence of her guilt, not because of some photographs.
NEWBERN, J., joins in this dissent.