MR. STIDHAM: Our concern is that one of the photographs of each of the victims depicting the condition of their bodies would seem to be sufficient. Duplicate photographs, which basically some of these are the same as these, and one of these is the same as have already been introduced by Officer Allen.
THE COURT: Refer to them by number. It looked to the Court as you were going through them that you are objecting to any view of the deceased bodies of any one of the three victims. All I have ruled is that you would have to object specifically when it was raised. I wouldn't as a matter of a motion in limine preclude it. I'm assuming that the State can give a neutral reason for each photograph as a necessity in its case. If they cannot and you object, that's a different matter. So take them one at a time and we'll go through them.
MR. STIDHAM: State's Exhibit 17 depicts the victim Branch as he is removed from the water and is being placed on the bank of the creek. (1236) If that is the only photograph that they intend to introduce of the victim Branch -- our objection is we don't think it is proper for the State to introduce any of the pictures because their prejudicial value highly exceeds any probative value because the Medical Examiner and the officers who recovered the bodies can testify as to what the wounds in the body are. I think in a case involving children this area of prejudice is extremely magnified in it could tend to inflame the jurors and the courts have ruled that repeated photographs -- our alternative argument -- that repeated or repetitious are not proper. Our first objection would be that it should not be allowed at all because of the prejudice, and our alternative objection in light of the fact that we anticipate your Honor would rule that it's admissible is that only one photograph of each victim be allowed.
MR. FOGLEMAN: Your Honor, as to Number 17, number one, that is a photograph of Branch. It depicts not only the condition of the body and the manner in which it's tied but also the condition of the water at the spot where he was removed. (1237)
MR. CROW: What is the relevance of the condition of the water?
MR. FOGLEMAN: I think it is going to go to the clean-up attempt that was made.
MR. STIDHAM: The have already introduced the photographs that show the water conditions.
THE COURT: I'm going to allow photograph 17. It shows clearly injuries to his fact, the condition of his body as it was found, basically completely nude. Looks like there's some restraints on his body around one leg and what appears to be binding on one hand and where it appears that the other hand was bound and from this photograph it looks like it was shoestrings so I think there's relevant evidence there and based upon my recollection of Misskelley's statement, some of those matters are corroborative of his statement and some are not.
MR. FOGLEMAN: As to Exhibit 17 of the victim Branch and any other photograph of the victim Branch -- and this goes to probative value being outweighed by prejudicial effect -- we want to proffer 114, 119, 121, 131, 132, 133, 135, 136, 138 and 139 as examples of other photographs that we could have offered but which we chose not to. (1238)
THE COURT: These are extremely gross and gruesome photographs. I'm going to have these introduced or tagged as for identification purposes to show additional photographs of the victim Branch's condition immediately after being found and I would not allow those. So the Court is excluding these and they may be made a part of the record to establish to any appellate reviewer the fact that the Court has considered the nature of the photographs and finds that State's Exhibit 17 is certainly a reasonable photograph considering these others that are not being allowed.
MR. STIDHAM: The jury might be inflamed by the injuries which were inflicted by the others and that might prejudice Mr. Misskelley.
MR. FOGLEMAN: I think the jury can fairly conclude -- they can draw their own conclusions of whether or not Mr. Misskelley inflicted any wounds.
MR. STIDHAM: I will move on. State's Exhibit 20 depicts, I believe, the victim Moore.
MR. FOGLEMAN: That is Branch.
MR. STIDHAM: That's Branch. It depicts the victim Branch being removed from the water and again our objection would be the same as to Exhibit 17. (1240)
THE COURT: This is a totally and completely different view and if the State maintains some relevancy, I'm going to allow it. I have seen a lot worse than that.
MR. STIDHAM: Exhibit 22 depicts the victim Moore. We would make the same objection to it.
THE COURT: Overruled. It is not -- while it does depict an eight-year-old boy nude with facial injuries, it is not that gross or prejudicial. It does show the deceased remains as it was located.
MR. STIDHAM: State's Exhibit 23 depicts the same thing as in 22 and we object as to repetition and also the same arguments we had with 17.
MR. FOGLEMAN: This particular picture is mainly showing the condition of the bank.
MR. CROW: There are other pictures of the bodies that show the bank.
MR. FOGLEMAN: They don't show the bank like these do. They are closer.
MR. STIDHAM: We disagree with the prosecutor. (1241)
THE COURT: It is a different view and it does show the left leg restraints connected to the right wrist. I'm going to allow it.
MR. STIDHAM: (Holding Exhibit number 27) What does this show?
MR. FOGLEMAN: I'm not sure -- I don't --
MR. STIDHAM: Number 27 -- we object to anything that they don't know what it is.
MR. FOGLEMAN: I said I didn't. That doesn't mean the witnesses don't.
THE COURT: I'm going to allow 23.
MR. STIDHAM: Exhibit 24 shows the victim Byers and his sexual mutilation and our specific objection to that would be that it is a very shocking and gruesome photograph and while it does show the injuries to the victim, it is particularly gruesome and that is something the Medical Examiner could testify to.
THE COURT: How many pictures of this nature do you have?
MR. FOGLEMAN: We would proffer on the victim Byers 130 and 200 to show that we have chosen a much less offensive picture.
THE COURT: I'm going to allow State's Exhibit 24 and the State is proffering 130 and 200. (1242) These likewise will be received for identification purposes for any possible appellate review that might be necessary to determine the extent and scope of the Court's review of the photographs and I think they depict that the State has chosen Exhibit 24 which is much less gruesome.
MR. STIDHAM: Your Honor, State's Exhibit 26 depicts the victim Moore. All it shows is feet and genitalia. I assume the photograph is being submitted to show the condition of the bank. We submit it would be much more probative without the victim's body and genitalia.
THE COURT: It also shows his right extremities bound by what appears to be a shoestring and shows that his right hand is clenched into a fist.
MR. STIDHAM: I don't know how that is relevant.
MR. FOGLEMAN: To show the manner in which he is tied and the condition of the bank. Your Honor, I don't know that we actually have a photograph (1243) that shows the detail that this does on the bank. If you will look at the photograph, you can see all the scuff marks and grass with the mud on it where it has been cleaned up.
THE COURT: I'm going to allow that.
MR. STIDHAM: Can we cut part of the body out of the picture?
THE COURT: I don't see any need to. The jury is almost going to have to view the body.
MR. STIDHAM: State's Exhibit 33, 35, 36, and 39. We would submit that these pictures basically all show the same thing and they are repetitious and the prejudice outweighs the probative value.
THE COURT: I'm going to rule that 33, 35, 36 and 39 are not particularly ugly photographs and that the prejudicial effect, if any, certainly doesn't outweigh any probative value that they might have so your motion will be denied.
MR. FOGLEMAN: As to the victim Moore, we have also proffered 106, 113 and 201 to show that we have chosen less gruesome photographs.
THE COURT: They may be received for identification purposes for review. (1244)
MR. STIDHAM: That leaves us with 78 and 79 showing Mr. Misskelley at the time of his arrest. We object to the relevancy of his arrest photograph. His appearance on June third is that but his appearance on May 5th was nowhere near that. The fact that he chose to go out and get a squirrelly haircut like some wrestler on TV is very prejudicial and does not accurately depict the way he looked on May 5th.
MR. FOGLEMAN: I guess they can have somebody testify about that. This whole case comes down to Jessie's credibility, whether he is deceiving somebody or not, and the way he appears then -- now they've got him sitting out there looking like a choir boy -- and I think we've got the right to show the jury the way he is now is not the true Jessie Misskelley.
THE COURT: If this is the way he looked at the time of his arrest or in any close proximity, then I'm going to allow the photographs. That will be a matter of you verifying by proof --
THE FOGLEMAN: The proof will be that was at the time of the arrest. (1245)
THE COURT: Exhibits 78 and 79, if it is verified that is the way he looked immediately prior to or after the event, then I'm going to allow them.
