              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE

                               AUGUST 1998 SESSION



STATE OF TENNESSEE,                 )
                                    )
              Appellee,             )      No. 01C01-9711-CC-00521


v.
                                    )
                                    )
                                    )
                                           Coffee County              FILED
                                    )       Honorable Gerald Ewell, Sr., Judge
                                    )                              January 22, 1999
PARKS A. BRYAN,                     )       (First degree murder)
                                    )                                Cecil W. Crowson
              Appellant.            )                               Appellate Court Clerk




                                 CONCURRING OPINION



              I concur in the results reached and most of the reasoning used in the

majority opinion. However, I respectfully disagree with its conclusion that all of the

photographs were properly admitted.



              Two color photographs from the autopsy show the rib cage area of the

victim’s body with the skin cut away. As the majority admits, they are “somewhat

graphic and gruesome.” Before the state sought to introduce these photographs, two

doctors had testified for the state relative to the victim’s injuries. One described the

severity of the breaks in the victim’s ribs as follows:

              A lot of times I probably see three or four people a week with
              rib fractures which are simple fractures. We call them green
              stick like where you might take a limb off the tree and bend it
              up and break it and let it come back. When you look at it, it
              looks solid and still is solid and strong, but it has a small crack
              in it. This particular lady, she had multiple compound
              fractures. Her bones were literally broken apart, and these
              broken portions then entered the lung and caused the lung to
              collapse and the bleeding to occur, so as you know, a lot of
              people have four or five or six fractured ribs and do not have
              problems with their lungs, but this particular lady had so many
              multiple compound fractures that these fractures were very
              extensive so that is what caused her slow bleeding death, and
             these fractured ribs then entered the lung, and the evidence
             shows that she bled to death over a period of time.

The pathologist was no less blunt and graphic in his testimony.



             At no time did the defense seek to contest the extent of the injuries as

described by the doctors. Under these circumstances, I believe that these two

photographs should have been excluded under Rule 403, Tenn. R. Evidence. In light of

the doctors’ graphic testimony and the defendant’s acquiescence in that testimony, the

photographs were superfluously cumulative in terms of proving the extent of the rib and

internal damages. On the other hand, given the nature of the doctors’ testimony and

the other photographs, I do not believe that the two photographs of concern more

probably than not affected the outcome of the case. See T.R.A.P. 36(b).



                                               ____________________________
                                               Joseph M. Tipton, Judge




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