Commw. v. Vizcarrondo

• Decision Date: 04 April 2000
• Docket Number: No. SJC-08123,SJC-08123
• Parties: (Mass. 2000) COMMONWEALTH, vs. RAMON LUIS VIZCARRONDO
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 821

727 N.E.2d 821 (Mass. 2000)

COMMONWEALTH, vs. RAMON LUIS VIZCARRONDO.

No. SJC-08123

Supreme Judicial Court of Massachusetts,Hampden County

Argued May 5, 2000.

Decided April 4, 2000.

Evidence, Photograph, Relevancy and materiality. Practice, Criminal, Opening statement, Argument by prosecutor, Capital case. Homicide.

Indictment found and returned in the Superior Court Department on December 16, 1993.

The case was tried before Daniel A. Ford, J.

James A. Couture for the defendant.

Elizabeth Dunphy Farris, Assistant District Attorney, for the Commonwealth.

Marshall, C.J., Abrams, Greaney, Ireland, Spina, & Cowin, JJ.

GREANEY, J.

A jury in the Superior Court convicted the defendant of murder in the first degree by reason of extreme atrocity or cruelty. ¹ Represented by new counsel on appeal, he argues that a new trial should be ordered because (1) the judge erroneously allowed the prosecution to introduce in evidence photographs of the ten month old victim; and (2) the prosecutor's opening statement and final argument contained improper and prejudicial comments. We conclude that both points lack merit. We also conclude that there is no basis under G. L. c. 278, § 33E, to grant the defendant relief. Accordingly, we affirm the conviction.

We need not describe the facts in great detail. The victim, Lisa Santiago, a ten month old baby, died in the early morning hours of December 7, 1993. At the time of her death, there was extensive bruising to her body. Several of the bruises were fresh. There were also human bite marks in several places on her body. She had multiple fresh rib fractures and a fresh spiral fracture of the left tibia. Her liver was lacerated and crushed, and she had suffered internal bleeding. The medical evidence established that the cause of death was multiple blunt force trauma that required four or more blows to the body. The medical evidence also indicated that the victim may have survived her injuries for as long as one hour. The injuries would have been extremely painful. Medical experts stated that the victim's injuries were not consistent with falling off a bed, falling to the ground with an adult, being hit in the abdomen by an adult's elbow as the adult tripped, or being dropped from an adult's arms.

The defendant was with the victim when the fatal injuries were inflicted. He gave the police conflicting accounts of how she received her injuries. At first, he said that the victim was crying while her mother (who was living with the defendant) was taking a shower, that he had taken the victim out of the playpen and laid her on the bed, and that she had fallen off the bed. He later stated that he had squeezed and bitten the victim; that he had tripped while holding her, that they had fallen together to the floor, and that her stomach had struck the footboard of the bed during the fall. Finally, he claimed that the victim had fallen on the floor and that he had tripped and fallen on top of her.

The defendant testified in his own behalf. He claimed that he was under the influence of heroin and marijuana on the night of the incident. He conceded striking, shaking, and biting the victim, but he claimed that he could not remember how many times he struck her or other important details of the assault. The gist of his defense was that he had acted without malice in the legal sense.

1. The prosecution was permitted to introduce in evidence, over objection by the defendant's trial counsel, eight photographs of the victim's body taken at the hospital on the night she died. The photographs illustrate external bruises and bite marks suffered by the victim. Seven of the eight photographs are black and white. One photograph is in color. The defendant argues that the judge erred in allowing the photographs to be admitted because they confirmed facts which were not in dispute and whatever probative value they possessed was clearly outweighed by the prejudice caused to his case. We reject the argument.

The law governing the admission of photographs of the type in issue here was recently explained in Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999), as follows:"The question whether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge. See Commonwealth v. Berry, 420 Mass. 95, 108 (1995); Commonwealth v. Ramos, 406 Mass. 397, 407 (1990); Commonwealth v. Repoza, 382 Mass. 119, 129 (1980), S.C., 400 Mass. 516, cert. denied, 484 U.S. 935 (1987); Commonwealth v. Bys, 370 Mass. 350, 361 (1976). The fact that a photograph is cumulative of other evidence has not required the exclusion of the photograph. See Commonwealth v. Campbell, 375 Mass. 308, 313 (1978); Commonwealth v. Bys, supra at 359-360. Even if a defendant agrees to stipulate to the facts that an offered photograph tends to prove, it is generally not error to admit it. Commonwealth v. Nadworny, 396 Mass. 342, 367 (1985), cert. denied, 477 U.S. 904 (1986). This court has almost never ruled that it was error to admit photographs of crime scenes and homicide victims. But see Commonwealth v. Richmond, 371 Mass. 563, 565 (1976) (error to admit photographs of victim's head partially eaten away by dogs). Cf. Commonwealth v. Bastarache, 382 Mass. 86, 106 (1980) (commenting on special limitation of admissibility of photograph where body has been altered in course of autopsy). A judge may appropriately attempt to mitigate the potentially prejudicial nature of a photograph by instructing the jury that the photograph is to be used in analyzing the evidence and is not designed to elicit sympathy. See Commonwealth v. Lawrence, 404 Mass. 378, 390 (1989); Commonwealth v. Richenburg, 401...