State v. Carraturo
| Citation | 112 R.I. 179,308 A.2d 828 |
| Decision Date | 14 August 1973 |
| Docket Number | No. 1703-E,1703-E |
| Court | United States State Supreme Court of Rhode Island |
| Parties | STATE v. Albert CARRATURO. x. &c. |
This indictment charged the defendant with the murder of Anthony Faria, in Bristol, on January 23, 1969. The case was heard before a justice of the Superior Court sitting with a jury and resulted in a verdict of guilty of second degree murder. After the denial of his motion for a new trial the defendant was sentenced to serve a sentence of 25 years, less time awaiting trial. He is now in this court prosecuting a bill of exceptions. The exceptions which he has briefed and argued relate to certain evidentiary rulings and to the charge to the jury.
The facts pertinent to the issues raised by the exceptions which defendant has briefed and argued are the following. On December 19, 1968, some time between 1:10 and 1:15 a.m., Patrolmen Carl F. Ormond and Richard A. Marshall of the Bristol Police Department received a radio call to go to the Bristol County Medical Center because there had been a shooting, and a person had been shot. They went there and found the victim on a stretcher, bleeding. It had taken them four or five minutes to respond to the call. The victim's shirt was full of blood and he was conscious.
When Officers Ormond and Marshall went into the accident room, there were two custodians there. John Carraturo, brother of defendant, and Carlton Ingerson were in the doorway. Approximately three or four minutes after the two officers arrived at the accident room, a third officer, Patrolman Robert B. West, also arrived at the accident room. He too, while traveling alone, had received the call about 1 a.m. that a man had been shot and to respond to the Medical Center. It took him about three minutes to travel the distance from his location to the center. He notice that the victim was bleeding from several parts of his body and began cutting off the victim's clothing. He found a puncture wound in the right side of the stomach, a wound on the left side of his chest, a wound on his left arm which was bleeding badly, and a puncture wound in the lower left back. He applied some first aid to the victim by obtaining some surgical scissors from one of the drawers, cutting off the victim's clothing and, after looking for compress bandages, applying them to the victim.
The police cleared the room and then the victim told them that he had been at a certain cafe in Bristol and that defendant had shot him. As a result of the victim's statement, the Bristol Police made a search for defendant and later on found him in the back seat of an automobile in which Carlton Ingerson was a passenger and which was being operated by the latter's lady friend.
Albert Faria subsequently died as a result of the bullet wounds.
Carlton Ingerson testified that he was a co-owner of the cafe in which the shooting took place and was there about midnight of December 19, 1968; that defendant was also there; that he heard an argument in the rear of the cafe involving defendant, defendant's brother John, and Albert Faria; that he heard four shots and afterward saw Faria standing outside on the curbing; and that Faria showed him his wounds. John Carraturo testified about the difficulty with Faria and the shooting of Faria by his brother.
The defendant took the stand in his own defense. He admitted that he had shot Faria, but he claimed it was in self-defense.
We consider first defendant's exceptions 1, 2 and 3, which were taken to the trial justice's rulings admitting, over defendant's objections, certain testimony by Officers Ormond, Marshall and West. The testimony objected to consisted of certain statements made by the victim to the police officers in the accident room at the medical center identifying defendant as the person who had shot him.
Officer Ormond was the first witness presented by the prosecution. After testifying that as a result of a radio call to his car he and Officer Marshall responded to the medical center to investigate a shooting, he stated, in reply to questions by the prosecutor, that they removed everyone from the room except the police officers; that there was no doctor there at that time; and that after they cleared the room, they had a conversation with the victim. The prosecutor then asked the witness what the victim said at that time. The defendant's counsel objected to this question on the ground of hearsay, whereupon the prosecutor said this testimony was being offered as part of the res gestae. The trial justice overruled defendant's objection, holding that the testimony which the prosecutor was offering was admissible under our decisions in State v. Bradshaw, 101 R.I. 233, 221 A.2d 815 (1966), State v. Nordstrom, 104 R.I. 471, 244 A.2d 837 (1968). Officer Ormond then testified that the victim told them that he had been at the cafe in question and that defendant had shot him.
It appears from the transcript that the three police officers were present when the victim identified defendant as the person who shot him. It also appears that their testimony with respect to the statements made by the victim is substantially the same. In fact, defendant's counsel conceded in oral argument before us that if we affirmed the trial justice's ruling admitting Officer Ormond's testimony concerning the victim's statement, we need go no further because the testimony of the other two officers is merely cumulative. Accordingly, we shall treat only defendant's exception to the ruling overruling his objection to the question put to Officer Ormond. Our determination with respect to that exception will apply equally to the rulings admitting into evidence the testimony of the other two officers concerning the victim's statement that defendant had shot him.
The defendant does not quarrel with the rule as set forth in Bradshaw and Nordstrom, both supra. However, he argues that the case at bar is distinguishable from those cases because the state presented no testimony, prior to the testimony of the officers, showing any facts which could lead the trial justice to believe that this was part of the res gestae. Specifically, he contends that there is no testimony to show whether or not these were the instinctive and spontaneous utterances of the victim and whether or not the victim's statement was so closely connected with the incident and made under such circumstances as clearly to indicate that there was neither any prior reflection nor any prior deliberation as to what was being said. We find no merit to any of the claims made by defendant on this issue.
The rule governing the admissibility of testimony in a situation such as this has been stated many times. State v. Bradshaw, State v. Nordstrom, both supra. We considered this question again only recently in State v. Vaccaro, R.I., 298 A.id 788 (1973), where we pointed out that the use of the term res gestae was to be avoided and that from thenceforth we would attempt to be more precise and avoid the potentially confusing phrase 'res gestae.' R.I., 298 A.2d at 790, n. 1. We also noted that in that case we interpreted the reference to res gestae to be an attempt to admit the statement under the excited utterance or spontaneous exclamation exception to the hearsay rule, which we explained as follows:
In the case at bar we shall also treat the reference of res gestae as an attempt to admit the statement under the excited utterance or spontaneous exclamation exception to the hearsay rule. The trial justice had to decide on the basis of the testimony presented by Officer Ormond whether the statements were spontaneous or impulsive or, on the other hand, whether they were the product of reflection and deliberation, and whether the victim was still laboring under the stress of nervous excitement. In the circumstances present in the accident room at the time, and in view of the victim's physical condition as described above, we cannot say that the trial justice abused his discretion in concluding that the victim's statement was a spontaneous exclamation and, therefore, admissible as an exception to the hearsay rule. We are satisfied that the testimony before the trial justice at the time of Officer Ormond's testimony was sufficient for him to conclude that the statement of the victim was a spontaneous or excited utterance.
We next consider exception 4. Carlton Ingerson was the first witness called by defendant after the state rested. He testified, while being...
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