             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                         September 12, 2000 Session

                  STATE OF TENNESSEE v. GILFORD E. WILLIAMS

                      Direct Appeal from the Circuit Court for Madison County
                              No. 98-93 Franklin Murchison, Judge


                        No. W1999-01556-CCA-R3-CD - Filed January 17, 2001



DAVID G. HAYES, J., concurring, in which THOMAS T. WOODALL , J., joined.

        I join with my colleagues in affirming the judgment of the trial court. I respectfully disagree,
however, with Judge Wade’s conclusion that the admission of the pre-death photograph of the victim
constitutes harmless error. I find no error in the photograph’s admission. In State v. Nesbit, 978
S.W.2d 872 (Tenn. 1998), appendix at 902, a capital case involving virtually the identical issue, our
supreme court adopted the following rationale:

         The record indicates that the [pre-death] photograph was offered by the State to
         establish the victim’s identity as a “creature in being.”1 In Bolden v. State, 203 S.W.
         755 (Tenn. 1918), our supreme court held that the evidence necessary “to establish
         the corpus delicti in [a homicide case] must show that the life of a human being has
         been taken, which involves the subordinate inquiry as to the identity of the person
         charged to have been killed....” Thus, employing the test espoused in Banks, 564
         S.W.2d at 949, we find no error in the admission of the photograph during the guilt
         phase of the trial. See e.g. State v. Scott, 626 S.W.2d 25, 28 (Tenn. Crim. App.
         1981); But see State v. Dicks, 615 S.W.2d 126, 128 (Tenn.), cert denied, 454 U.S.
         933, 102 S. Ct. 431 (1981)(pictures of homicide victim while alive should not be
         admitted at trial unless relevant to a material issue, although such an error may not
         be prejudicial to the outcome).


         1
           Under the pre-1988 criminal code, murder was defined as the unlawful killing of “any reasonable creature
in being.” See T E N N . C O D E A N N . § 39-2-201 (repealed 198 9). Thus, in the prosecution of any homicide, proof that the
deceased was a “reasonable creature in being,” that is, to say a child that was born alive, was a material element of the
offense of mur der. See Morg an v. State , 256 S.W. 433, 434 (Tenn. 1923). The phrase “reasonable creature in being”
has no application to our current criminal code. The 1989 criminal code defines the killing of “another” to include a
viable fetus of a hum an being . T E N N . C O D E A N N . § 39-13-214 (1989). As such, proof of a reasonable creature in being
is no longer necessary. The deceased’s identity, however, remains a material element. Indeed, the corpus d elicti must
be proven beyon d a reason able dou bt and the defend ant’s statem ents alone are not sufficient to e stablish this elem ent.
State v. Shepherd, 862 S.W .2d 557 , 564 (T enn. Crim . App. 1 992).
As such, our supreme court held that the identity of a victim may be shown through admission of a
photograph taken of the victim while alive. State v. Nesbit, 978 S.W.2d at 902.

        In the present case, Officer Nesbitt was shown the pre-death photograph of the victim and
asked if the person in the photograph was the same person that she assisted at the scene. The Officer
indicated that it was. The photograph was entered for purposes of identification only. Accordingly,
under our supreme court’s adoption in Nesbit, 978 S.W.2d at 902, the trial court properly admitted
the photograph for identification purposes and, therefore, no error occurred.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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