Com. v. Cifizzari
| Decision Date | 14 May 1986 |
| Citation | 492 N.E.2d 357,397 Mass. 560 |
| Parties | COMMONWEALTH v. Gary J. CIFIZZARI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Stephen Hrones, Boston, for defendant.
Claudia R. Sullivan, Asst. Dist. Atty., for Com.
Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.
On the morning of September 29, 1979, seventy-five year old Concetta Sciappa was found dead on her living room floor, as a result of massive internal injuries caused by the insertion of a mop handle into her vagina. Almost five years later, the defendant, Gary J. Cifizzari, the victim's nephew, was tried and convicted of the murder in the first degree of his aunt. His appeal raises the following issues: (1) Did the judge commit reversible error in admitting expert testimony on bite mark identification evidence? (2) Did the judge commit reversible error in denying a motion for a mistrial when a witness stated that the defendant's brother had confessed to the crime, and where the evidence indicated association between the brothers? (3) Was it error to instruct the jury on the theory of joint venture? (4) Was it error to instruct the jury on felony murder, which was based on the felony of rape, because (it is argued) rape cannot be committed with an inanimate object? (5) Was the defendant denied a fair trial as a result of several remarks made by the prosecutor in his closing argument? (6) Should the defendant be granted a new trial under G.L. c. 278, § 33E (1984 ed.)? After considering each issue and reviewing the entire record pursuant to our obligations under G.L. c. 278, § 33E (1984 ed.), we affirm the conviction. We outline the evidence as it was presented to the jury.
At approximately 9 P.M. on September 28, 1979, Kathy Terhune, the victim's neighbor, visited the victim for a short while. As she was leaving, she noticed that the victim's back door was slightly open. It was the victim's usual custom to leave the door ajar for her cats. Terhune's husband arrived home and then left three times during the evening. On the third trip, at about 11 P.M., he saw a shadow in the window of the victim's apartment, and noticed the window shades were halfway up. He thought that this was unusual. He drove around the block. Upon returning to the building he saw that the shades had been drawn. He also noticed that the back door to the victim's apartment was closed.
Ronald and Diane Nydam, who lived in the apartment above the victim, were home on the evening of September 28th. At approximately 11:30 P.M. they heard groans or grunts and the sound of furniture being moved in the victim's apartment. Ronald Nydam went downstairs and out of the building. He could not see into the victim's apartment because the shades were drawn tightly, nor did he hear any noises. Nydam also attempted to look through the keyhole to the victim's apartment but was unable to make any observations. He thought that something was unusual because of the way the shades were drawn.
At 9 A.M., on Saturday, September 29, 1979, Diane Nydam was awakened by the victim's telephone, which rang for a long time. She went downstairs where she found the victim lying on the living room floor. She testified that, The television was playing, but the volume was turned down. In the kitchen sink there were several dirty dishes from a meal of chicken wings in a red sauce.
The victim had been beaten and her jaw was broken. According to medical testimony, she died as a result of "multiple blunt force injuries and hemorrhage from a penetrating wound, which began in the vagina with a wooden rod penetrating through the internal viscera or organs and palpable in the skin of the right shoulder area." The victim had been alive for several minutes after the insertion of the mop handle. Other bruises were present on the victim's body. There was testimony that two bite marks, one on the abdomen and one on the thigh, were inflicted while the victim was alive. Three experts in the field of forensic odontology testified at length on the subject of the bite marks. All three stated that the bite mark on the victim's abdomen matched the defendant's dental imprint. He had voluntarily consented to the taking of his dental imprint. 1 Their testimony is reported in further detail in the discussion of the issue of bite mark identification.
The victim's keys and change purse were found on a neighbor's lawn. A thorough search of the victim's apartment revealed cash, savings bonds, and jewelry.
On the evening after the murder, the defendant and his brother 2 visited the defendant's first cousin, Antonetta Pasqualone, who lived in Milford, Massachusetts, the same town in which the victim lived. Pasqualone noticed that their clothes were dirty. The cousin testified that when she looked at the two men she stated: "[Y]ou two goons walking around, they're going to think you did it." Neither the defendant nor his brother responded to her comment. Pasqualone testified that she and her mother washed the men's clothes on the evening of their visit. The two brothers left the following day. Pasqualone also testified that the defendant had visited her approximately five or six times between 1969 and 1979; the last time (prior to 1979) was Christmas of 1976.
The defendant testified that he was at home when he learned of his aunt's murder, that he had stayed home the night before hearing this, and that he and his brother went to Antonetta Pasqualone's house two days after the murder. 3 He denied that his clothes had been washed there, and stated that there was no discussion about the murder. He also stated that he did not know where his aunt, the victim, lived. 4
The defendant's mother testified that the two brothers were at her home when she received the telephone call informing her of the murder, and she also remembered that the defendant had been home on the night of the murder. She previously told a police officer that the defendant and his brother might have been home on the evening of the murder, but that she could not recall with certainty. She also told an officer that the two men were at Pasqualone's house in Milford the night after the murder. We turn now to a discussion of the issues.
1. Bite mark identification evidence. A significant part of the prosecutor's case against the defendant consisted of testimony from three experts in the field of forensic dentistry who made a positive identification between the defendant's dental imprint and the bite marks on the victim's body. We need to summarize the experts' testimony in some detail because the major issue raised in this appeal is the admissibility of their opinions and it is a question of first impression in the Commonwealth.
Dr. Stanley Schwartz, 5 a dentist, a professor at Tufts University, and the only State-appointed forensic dentist, testified for the Commonwealth. Much of Dr. Schwartz's work has been in the area of identifying remains of deceased persons. As an initial proposition, he stated that it is a well known fact in dentistry that no two sets of teeth are absolutely alike, or at least, the percentage of that condition is "infinitesimal."
On September 29, 1979, Dr. Schwartz received a telephone call and went to a funeral home in Milford where he examined the body of the victim. He found the presence of two human bite marks on her body, one on the lower right quadrant of the abdomen and one on the left upper thigh. He photographed them with a fifty-five millimeter macro lens on a Nikon thirty-five millimeter single lens reflex camera. He stated that taking photographs of bite marks was "normal procedure." He also took an "impression" of one bite mark, using rubber base material, which is normally used for taking dental impressions. He testified that the material is capable of taking fine details and is "very accurate impression material." After mixing up the base to manufacturer's specifications he then put it on the abdomen bite mark for five minutes. He next put a plaster of paris ("dental stone") over the rubber-based material to harden it. The doctor testified that the impression showed nothing because the skin was only bruised; the teeth did not break through the skin. He explained that bruising occurs as a result of the fracturing or tearing of blood vessels, and that the blood circulation indicates where the teeth were. He also said that bruise marks will remain on the body for about twenty-four to thirty-six hours. The witness had studied the subject of bruising in his postgraduate program in oral pathology.
Dr. Schwartz took the film to the photographic laboratory of Tufts University Medical School. He instructed a person there to "scale" 6 the film to human size, which is also a procedure that he generally followed in bite mark cases. The doctor also received two sets of impressions of the defendant's teeth from the State Police. 7 He explained that the impressions were taken by using material similar to material that he used in taking the impression of the bite mark. He had taken dental imprints at least one hundred times.
Dr. Schwartz next testified about comparisons he made between the dental impressions of the defendant's teeth and the bite marks found on the victim's body. He described the two methods of making these comparisons. One way is to lay the model of the teeth on top of the life size photograph, and then determine whether the two match. He demonstrated to the jury, using the model of the teeth and the photograph of the bite mark on the abdomen, in which direction the bite was made. He testified that, in his opinion, the six anterior teeth (from eye tooth to eye tooth) conformed to the photograph. He noted that the upper right central tooth was "retrouded." 8 The doctor acknowledged that the defendant's front...
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...did not qualify as expert in area), cert. denied, 434 U.S. 902, 98 S. Ct. 297, 54 L. Ed. 2d 188 (1977); Commonwealth v. Cifizzari, 397 Mass. 560, 569, 492 N.E.2d 357 (1986) (defendant unsuccessfully argued that no foundation laid that bite mark identification techniques had gained acceptanc......
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Authentication
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Authentication
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