dissenting. My primary reason for dissent concerns the introduction of the photograph of the naked torso of the decedent. The appellant had agreed and offered to stipulate that the three shots were fired and that he was holding and firing the gun and further that the shots caused the death of the victim. There was no dispute as to the location of the wounds on the body nor was there any dispute concerning any aspect of the shooting. I can think of only one reason to allow the introduction of a photograph under these circumstances, and that reason is for the purpose of inflaming the minds of the jurors. The photograph in question was probably the least inflammatory of any photograph which had been introduced in a criminal case. However, when there is absolutely no need for a photograph in order to prove the case, it ought to be error to introduce it.
Uniform Rules of Evidence, Rule 403, provides for exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. If there were any probative value whatsoever about this photograph, I am unable to discover it. In any event, the unfair prejudice most assuredly outweighs any imagined probative value. So far as I am concerned, the majority is holding that any photograph taken at or near the scene may be introduced and exhibited to the jury.
I further disagree with the majority in approving the handling of the motion in limine by the trial court. The motion should have been granted, in my opinion. It is not proper to show the details of former criminal acts unless they have probative value in the present case. By no stretch of the imagination could an incident which occurred more than ten years past be relevant as shedding light on the conduct in the present case. It would have been easy enough to rule that the prosecution could ask him if he had been convicted of a prior felony. By delaying the motion until the prosecution asked the questions before the jury is too late. It is like shutting the gate after the horse is out. The only reason a prosecutor would want to wait until this time and ask such questions is solely for the purpose of inflaming the jury or to create prejudice against an accused. A prosecutor is supposed to be seeking the truth and affording the state and the accused a fair and impartial trial. I do not consider such questions to fit in the category of fair and proper.