Commonwealth v. Cardarelli, Third

• Decision Date: 05 December 2000
• Citation: 743 N.E.2d 823,433 Mass. 427
• Parties: (Mass. 2001) COMMONWEALTH vs. VICTOR A. CARDARELLI, THIRD. 8178
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

743 N.E.2d 823 (Mass. 2001)

COMMONWEALTH vs. VICTOR A. CARDARELLI, THIRD.

8178

Supreme Court of Massachusetts

December 5, 2000.

March 9, 2001.

County: Plymouth.

Present: Marshall, C.J., Greaney, Spina, Cowin, & Sosman, JJ.

Summary: Evidence, Photograph, Inflammatory evidence, Relevancy and materiality, Pattern of conduct, Motive, State of mind, Consciousness of guilt, Flight. Homicide. Practice, Criminal, Capital case.

Indictment found and returned in the Superior Court Department on February 3, 1997.

The case was tried before Charles J. Hely, J.

James A. Couture for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

MARSHALL, C.J.

The defendant was convicted of murder in the first degree of his wife on theories of deliberate premeditation and extreme atrocity or cruelty. He claims that the Commonwealth's introduction of autopsy photographs of the victim and evidence of his posthomicide conduct denied him the right to a fair trial. He also asks that we reduce the degree of murder pursuant to G. L. c. 278, § 33E. We affirm the conviction, and decline the defendant's request to exercise our statutory power.

1. Facts.

On November 11, 1996, the victim, usually a punctual employee, failed to appear at work. When a worried coworker telephoned the Plymouth apartment the victim shared with the defendant, the defendant informed her that the victim had gone to California because members of her family had been in a serious automobile accident. That same day, the defendant told the victim's daughter-in-law, Linda Hendrick, that the victim was in a hospital recovering from dental work. When she was not able to locate the victim at any Plymouth-area hospital, Hendrick notified the Plymouth police.

After receiving another report from one of the victim's coworkers that the victim was missing, Plymouth police officers entered the apartment on November 17, 1996. They found it "immaculate," but the defendant and victim were not there. Detective John Rogers, Jr., of the Plymouth police department subsequently assembled a paper trail revealing that the defendant took numerous credit card advances, depleted funds from bank accounts held jointly with the victim, and gambled at various casinos in Connecticut and Atlantic City, New Jersey, between November 9, 1996, the day after the victim was last seen alive, and November 24, 1996. See Part 3, infra.

Hendrick remained in contact with the Plymouth police throughout December, 1996, and early January, 1997, but received no word of the victim's whereabouts. After she learned from the defendant's landlord that the defendant and victim were facing eviction for nonpayment of rent, she and her husband came to Massachusetts to clean out the Plymouth apartment. When they entered the apartment on January 10, 1997, they detected an odor of vinegar and discovered that various items of the victim's clothes and jewelry were missing. Noticing something amiss in the bedroom, they turned over the mattress, where they found bloodstains and bloody towels. They immediately notified the Plymouth police, who obtained a warrant and secured the apartment.

When they investigated the bedroom, State troopers found three blood-stained towels on the box spring, extensive bloodstains on the mattress and headboard, and "castoff" blood spatter patterns on the walls and ceiling. With the aid of a police "cadaver dog" the officers discovered a body wrapped in plastic and covered by assorted debris in an attic crawl space. A forensic odontologist used dental records to identify the partially decomposed corpse as that of the victim.

An autopsy revealed that the victim had died in early November, 1996. It also revealed that she had suffered numerous fractures of her face and skull, severe damage to her brain, and had died from severe head trauma. Both the State medical examiner, who conducted the autopsy, and a forensic anthropologist who reviewed the autopsy photographs opined that the victim was struck at least twice with a considerable amount of force with a blunt object, and that semicircular skull fractures and other injuries to the victim's head could have been caused by blows from a cast iron frying pan found near the bed in the Plymouth apartment.¹ A Massachusetts State trooper who examined the blood spatter patterns testified that the victim was struck at least three times, and possibly more. He, too, testified that the pattern was consistent with the victim's being struck by the frying pan.

Atlantic City law enforcement officials and personnel at various casinos subsequently were notified that the defendant was missing, and known to gamble there. The defendant was detained by security personnel at a casino in Atlantic City on February 4, 1997, when he attempted to use a casino credit card.

After the defendant was returned to Massachusetts and given Miranda warnings, he told a State police detective that he must have killed the victim, remembered her bleeding from the face, but could not remember how or why he killed her. He admitted that he wrapped the victim's body in bedclothes and plastic and placed it in the attic. Asked whether there was anything in the apartment that he may have used to kill the victim, he replied that there were some pots and pans, but that he could not remember if he used them.

At trial the defendant did not dispute that he killed the victim. In his opening and closing statements, defense counsel suggested that the defendant's act constituted a heat of passion manslaughter, rather than premeditated murder. The judge instructed the jury on first degree murder and manslaughter, and informed them that they could consider whether the defendant, as a result of mental illness, lacked the capacity to form the intent or state of mind necessary for any particular offense. While defense counsel did not ask specifically for an insanity instruction,² and did not argue an insanity defense in his closing remarks, the judge also instructed the jury that they could find the defendant not guilty by reason of insanity if they determined that at the time of the offense, as a result of mental disease or defect, the defendant lacked the substantial capacity to understand the criminality or wrongfulness of his conduct or lacked the substantial capacity to conform his conduct to the requirements of the law.³

2. Photographic evidence.

Over the defendant's objections, the Commonwealth was permitted to introduce five autopsy photographs during the testimony of the medical examiner.⁴ One photograph displayed the victim's head before the examiner reflected, or cut back, the skin and hair. The other four portrayed her head after the skin was reflected. The defendant asserts that, because the Commonwealth introduced sufficient testimony to establish the nature and extent of the victim's injuries and the cause of her death apart from the photographs, the introduction of the images of the victim's partially decomposed head served no purpose other than to shock and sicken the jury. We disagree.

Our law on the admissibility of potentially prejudicial photographs is well established. As a general proposition, it is within the sound discretion of the trial judge to determine whether the inflammatory nature of a photograph outweighs its probative value. See Commonwealth v. Vizcarrondo, 431 Mass. 360, 362 (2000), quoting Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). While the defendant bears a heavy burden to demonstrate abuse of that discretion, Commonwealth v. Berry, 420 Mass. 95, 108 (1995), special caution is warranted where, as here, the photographs depict a decomposed body that has been further altered in the course of an autopsy. See Commonwealth v. Bastarache, 382 Mass. 86, 106 (1980). If the judge determines, after careful assessment, that photographs depicting an altered body are apt to be inflammatory or otherwise prejudicial, he should exercise his discretion to admit them only if they are important to the jury's resolution of any contested fact in the case. Id.

In this case, the defendant has not met his burden. The photographs were relevant to the issue of the manner and cause of the victim's death. Because the defendant claimed not to remember how or why he killed the victim, the Commonwealth resorted to circumstantial evidence to prove a manner of killing that would make out a case of extreme atrocity or cruelty. The depictions of the semicircular fractures of the victim's skull augmented the testimony of the medical examiner, forensic anthropologist, and police officer that the victim's injuries were consistent with being struck multiple times with the cast iron skillet found near the victim's bed. See Commonwealth v. Richenburg, 401 Mass. 663, 672 (1988). Even if photographs were cumulative of some of the testimony, the judge was not required to exclude them. See Commonwealth v. Vizcarrondo, supra at 362; Commonwealth v. Maldonado, 429 Mass. 502, 508 (1999). The images were probative of whether the defendant committed the murder with extreme atrocity or cruelty: a photograph that suggests the degree of force applied by an assailant and portrays the injuries inflicted is properly admissible for that purpose. See Commonwealth v. Meinholz, 420 Mass. 633, 635 (1995).

We reject the defendant's assertion that the portrayal of the victim's head in a state of decomposition and with its skin reflected rendered the photographs more prejudicial than probative. A photograph of a murder victim may be admissible despite its depiction of postmortem deterioration. See Commonwealth v. Nadworny, 396 Mass. 342, 366-367 (1985), cert. denied, 477 U.S. 904 (1986); Commonwealth v. Allen, 377 Mass. 674, 679 (1979). The photographs illustrate the nature and extent of the victim's injuries in a manner that the testimony of the medical examiner and forensic anthropologist, standing alone, could not. See Commonwealth v. Gallagher, 408 Mass. 510, 519 (1990) (...