¶1dissenting.
¶2I must respectfully dissent from the majority opinion which reverses this conviction because I believe Clark was not unduly prejudiced when the prosecution introduced relevant photographic evidence which provided assistance to the jury; there was no improper introduction of prior bad acts. The victim impact statement did not invalidate the sentence fixed by the jury, and neither the instructions, nor the prosecutor’s argument impermissibly lessened the responsibility of the jurors in fixing a sentence.
¶3First, Clark was not unduly prejudiced when the prosecution introduced photographic evidence which assisted the jury. There was no reversible error in displaying the three slides during the testimony of the forensic pathologist. It is well settled that a photograph which is otherwise relevant is not inadmissible because it may appear gruesome to some. Wager v. Commonwealth, Ky., 751 S.W.2d 28 (1988); Milburn v. Commonwealth, Ky., 788 S.W.2d 253 (1990). The testimony of the witness regarding the first slide was to show the bullet wound; the second slide depicted where the bullets lodged and the third slide showed the path of the bullet. Photographic evidence tending to show the direction from which the bullets entered the body of the deceased have been approved. Geary v. Commonwealth, Ky., 503 S.W.2d 505 (1972).
¶4The first slide shows a single entrance wound, but two bullets were found to have been shot into the head of the deceased. One remained inside and the other passed through the soft tissue outside the skull. The single entrance wound, together with the presence of soot deposits, was explained to have been consistent with a contact wound with the gun pressed against the head of the victim. The second and third slides are relevant when considered *798together with the first slide. The slides show no more of the body of the victim than necessary. The witness did not use them excessively, and there was no reversible error in their admission.
¶5In any event, it is difficult to imagine that a contemporary jury would not know that a corpse left to rot for eight months would not have achieved an advanced state of decomposition and acquired a foul odor. Stallings v. Commonwealth, Ky., 556 S.W.2d 4, 5 (1977) noted that:
In this advanced technological age of television, movies, and news media, those persons selected as jurors are able to view a picture of a victim of a crime without prejudice to the defendant. Napier v. Commonwealth, Ky., 426 S.W.2d 121 (1968); Daskins v. Commonwealth, Ky., 512 S.W.2d 520 (1974).
¶6There was no unnecessary inflammation of the jury which would amount to reversible error.
¶7There was no improper introduction of prior bad acts. It should be noted that the Attorney General argues that this assignment of error is totally unpreserved and Clark admits that it is unpreserved for the most part. The majority opinion recognizes the argument that the three acts were inextricably intertwined with the events surrounding the murder but concludes that the introduction of the acts was more prejudicial than probative. It is the responsibility of the trial judge to decide whether the probative value of the evidence outweighs its inflammatory nature. If the trial judge determines that it does, the evidence is admissible. The decision to admit or exclude evidence of this nature is left in the sound discretion of the trial judge. Rake v. Commonwealth, Ky., 450 S.W.2d 527 (1970).
¶8Here the trial judge did not abuse his discretion in not striking the testimony. The fact that the testimony.had references to “thumping” a man does not render it inadmissible. This Court has previously permitted evidence that a defendant stomped a kitten after a murder and before disposing of the bodies. Halvorsen and Willoughby v. Commonwealth, Ky., 730 S.W.2d 921 (1986).
¶9The penalty phase instructions and the arguments of the prosecutor did not lessen the responsibility of the jurors in fixing the sentence in this case. Obviously, Tamme v. Commonwealth, Ky., 759 S.W.2d 51 (1988), declared that the word “recommend,” even though used in the statute, was not to be used in any case tried after the date when that opinion became final. This case was tried in September and October of 1987. Consequently, Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1985) and Halvorsen, supra,were the law of the Commonwealth at that time. This Court in Matthews, supra,said in pertinent part that because the statute uses the word “recommend,” the trial judge does no more than follow the language of the statute when he uses the same word in the instructions to the jury. The Matthewscourt recognized the decision of the United States Supreme Court in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Again, we must note that Clark did not preserve this assignment of error in the 1987 trial.
¶10Here, neither the instructions, nor the arguments of the prosecutor minimized the sentencing responsibility of the jurors in this case. A review of the penalty phase indicates the absence of the words “only” or “merely” in connection with the recommendation to the trial court. The first thing the jury was told in the first instruction of the penalty phase was that it was their duty to fix the punishment for the defendant. The penalty phase instructions relating to the sentence by the jury used the word “fix” as distinguished from the word “recommend.”
¶11In addition there was nothing in the argument of the prosecutor which would indicate an attempt to minimize the responsibility of the jury in the penalty phase. In the closing argument of the penalty phase, the prosecutor once told the jury that they were to fix the penalty that they believed the defendant deserved. The occasional use of the word “recommend” during the rhetoric of the opening or closing statement should hardly be the basis of reversible error.
¶12The victim impact statement was appropriately admitted by the trial judge and did *799not invalidate the sentence fixed by the jury.
¶13This Court has repeatedly recognized the validity of some information relating to the victim, and it has been stated that there is no error in bringing to the attention of the jury the fact that the victim was a living person and that a certain amount of background evidence regarding the victim is relevant to understanding the nature of the crime. McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984); Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988); See also Campbell v. Commonwealth, Ky., 788 S.W.2d 260 (1990); Templeman v. Commonwealth, Ky., 785 S.W.2d 259 (1990).
¶14The error in Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989) or Sanborn, supra,was the encouraging of the jury to impose the death penalty because of the victim’s status in the community. Closing argument is not improper merely because the prosecutor may become emotional and refer to the victim’s family. A criminal conviction should not be lightly overturned on the basis of the prosecutor’s statements standing alone. Cf. Smith v. Commonwealth, Ky., 734 S.W.2d 437 (1987).
¶15Clark received a fair trial and an objective sentencing. The victim impact statement did not vitiate this underlying fact. Cf. Turpin v. Commonwealth, Ky., 780 S.W.2d 619 (1989). The situation in this case does not approach the extreme situation noted in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Actually, the complained of testimony was admissible because it related directly to the circumstances of the crime. As such, the authority of South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), is persuasive.
¶16I would affirm the conviction in all respects.
¶17REYNOLDS and SPAIN, JJ., join in this dissent.