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State v. Hicks7/16/1982
victim was the first aggressor. We therefore hold
that it was error to permit the prosecution to present evidence of the victim's peaceful character.
The state urged that the defense waived its objection because on cross-examination, defense counsel asked the fourth witness whether she had ever seen the victim or the defendant fight or argue with anyone at the bar. The state contends that this question waived the previous objection. We disagree. Once an objection has been made and overruled, defense counsel must attempt as best he can to minimize any harm that might flow from the erroneous admission of unfavorable evidence. To do so by asking a question concerning the objected-to evidence does not thereby waive the objection. See State v. Noble, 126 Ariz. 41, 612 P.2d 497 (1980); State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980).
Although the testimony was irrelevant and should have been excluded pursuant to rule 404(a), we do not believe that any prejudice to appellant resulted from admission of the testimony. The first two witnesses who testified on the issue did so without objection, so the evidence came before the jury in the first instance without defense objection. We do not believe that the additional evidence from the later witnesses caused any prejudice. In fact, defense counsel used the questioned evidence to appellant's advantage during closing argument. The state's argument, on the other hand, made no reference to the testimony. Furthermore, the testimony was not such that it was likely to evoke sympathy from the jurors.
Appellant challenges, on the same ground, the admission, over objection, of testimony by a homicide detective on redirect examination that he "found no evidence that anyone had a serious beef or anything with [the victim]." This statement followed vigorous cross-examination of the detective which elicited that no motive on the part of the appellant could be found. The prime thrust of appellant's defense was that somebody else killed the victim. Under these circumstances, the state could offer evidence in rebuttal to show that no motive for anyone else to kill the victim was uncovered. See State v. Hawkins, 260 N.W.2d 150 (Minn.1977); Kelly v. Commonwealth, 259 Ky. 770, 83 S.W.2d 489 (1935).
PHOTOGRAPHS
Appellant asserts that two color photographs of the victim's injury were improperly admitted in evidence because they were so gruesome as to inflame the passions of the jury. The first picture showed the victim as he was found in his truck, slumped forward with the gunshot wound behind his ear. The second picture, taken during the autopsy, is a close-up of the entry wound with a ruler laid next to it to show the size and shape. Neither picture is particularly bloody nor gruesome, and in our opinion, they were not so inflammatory as to prejudice the average person.
The trial court has broad discretion to admit or exclude arguably gruesome photographs. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981). Inflammatory photographs that have probative value are admissible, State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), as long as the probative value is not substantially outweighed by the potential to prejudice the jury. State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981). Admission is proper where the photograph aids the jury in understanding the testimony or shows the locati
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