State v. Ruggiero
| Decision Date | 27 October 1961 |
| Docket Number | No. 10123,10123 |
| Citation | 93 R.I. 241,174 A.2d 555 |
| Parties | STATE v. Giacomo RUGGIERO. Ex. |
| Court | Rhode Island Supreme Court |
J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, Providence, for the State.
Thomas H. Needham, Providence, for defendant.
This is an indictment for the murder of a two-year-old child, hereinafter sometimes referred to as the decedent child. After a jury verdict of manslaughter in the superior court, the defendant's motion for a new trial and his motion to discharge were denied by the trial justice. The case is here on his exceptions to the denial of the two motions, to certain evidentiary rulings and to a portion of the charge.
The defendant, a divorced man and the father of four children, began living with a woman who was the mother of two children by her husband from whom she was separated. On August 1, 1958 she bore defendant a son. In January 1959 they moved to a house in Warwick. At that time the three children were three and one-half years of age, one and one-half, and five months old respectively.
At about 2:30 p. m. on March 13, 1959 the mother and a friend of defendant left the house to keep a doctor's appointment. The defendant stayed home to take care of the children. When she left, the two older children were upstairs taking a nap and the infant was downstairs in the kitchen. When the mother and the friend returned at about 3:30 p. m. defendant was lying on a couch downstairs and the baby was upstairs napping. When asked by the mother if anything had happened while she was gone, he replied in the negative. The defendant and his friend then left the house.
The mother then went upstairs to waken the children. She found the decedent child curled up in a corner of her crib, holding her side, looking very pale and gasping for breath. While changing the child's diaper and taking her temperature, she noticed fresh bruises on the child's chest and abdomen. At the trial she testified that before leaving the house at 2:30 p. m. the child appeared to be in normal good health with no recent or fresh marks or bruises when she changed her. After telephoning a doctor she rushed the child to the nearest hospital where she died within an hour.
At the request of the state's acting chief medical examiner an autopsy was performed by Dr. Gary P. Paparo, a private physician whose qualification as a pathologist is admitted by defendant. Doctor Edward F. Asprinio, the medical examiner, was present at the autopsy as a medical witness.
The police began an investigation. The defendant was informed of the death at about 9 p. m. When first questioned by the police he denied ever going upstairs where the children were sleeping while the mother was out. He also denied taking the infant upstairs to bed, maintaining that the baby was there when the mother and the friend left the house. But several hours after his first statement to the police he changed his story and admitted taking the baby upstairs. He said that while he was playing with the decedent child he fell on top of her after she had slipped out of his hands and that he refused to tell the police the truth in the first instance because they had accused him of sexually assaulting the child.
At the trial the state proceeded on the theory that the child's death was caused by injuries resulting from a beating inflicted by defendant. The state's case rested almost entirely on the testimony of Drs. Paparo and Asprinio and on the post-mortem findings in the autopsy report prepared by Dr. Paparo. The report was introduced in evidence over defendant's objection.
Doctor Paparo testified that in his opinion the cause of death was due to specific internal injuries which were sustained within six hours prior to her death; that the abdominal injuries which he described resulted from three grounds of contact and not from one force; that they were caused by a series of forceful and separate blows; and that such injuries could not be caused by an adult falling on the child. He also stated that while it was possible that the injuries were sustained according to defendant's version, it was his opinion that there was no probability that the injuries resulted from someone falling on the child. Doctor Asprinio's testimony was substantially similar to that of Dr. Paparo. He testified that in his opinion a 'squashing' could not have caused the multiple injuries shown by the autopsy.
The defendant testified in his own behalf. He stated that when he brought the infant upstairs to bed, the decedent child was standing in her crib calling to him; that he started to play with her, picking her up and throwing her into the air several times; that she slipped out of his hands and fell to the floor; that he slipped and fell on top of her, squashing her as he fell; and that he then picked her up and returned the child to her crib. He admitted concealing this incident from the child's mother.
Doctor Arthur E. O'Dea, a qualified pathologist, was called as an expert witness by defendant. After stating that he had read the autopsy report he testified, in reply to a hypothetical question asked by defendant, that in his opinion the injuries recorded in the report were consistent with defendant's version of falling on the child and 'squashing' her, but he admitted that the injuries were also consistent with the infliction of a severe beating.
The defendant has briefed and argued his exceptions under seven main points. We shall treat them in like manner as far as we can, but not necessarily in the same order.
Under points I and II defendant contends that under the provisions of G.L.1956, chap. 23-4, only the chief medical examiner has authority to perform autopsies; that chap. 23-4 prescribes the prerequisities governing the admissibility of evidence obtained by an autopsy; that the state failed to prove compliance with the statute in making the autopsy; and that consequently the testimony of Dr. Paparo based on the autopsy, and the autopsy report prepared by him are not admissible in evidence because of such noncompliance.
These contentions lack merit. A careful reading of chap. 23-4 shows clearly that it does not apply to matters affecting the admissibility of evidence. It has no bearing on the question of the admissibility of the testimony of a medical expert who is otherwise qualified to perform an autopsy, or on the admissibility of the autopsy report prepared by such medical expert.
In any event, the instant record discloses that Dr. Paparo was authorized to perform the autopsy by Dr. James J. Flanagan, the acting chief medical examiner. There is nothing in the record indicating that Dr. Flanagan was not duly appointed or that he lacked authority to engage Dr. Paparo. In the circumstances the instant issues are governed by our decision in State v. Cohen, R.I., 172 A.2d 737; Id., R.I., 173 A.2d 925. The testimony of Dr. Paparo and the autopsy report were therefore admissible in evidence.
It appears from the record that a copy of the autopsy report had been given to defendant before trial; that Dr. Paparo testified to the contents thereof; and that defendant cross-examined him thereon. In such circumstances we find no prejudicial error in the ruling of the trial justice permitting the state, after it had rested, to reopen its case for the purpose of admitting the report in evidence. See State v. Blood, 70 R.I. 85, 92, 37 A.2d 452.
We shall next consider defendant's contention in point VI of his brief attacking the admissibility of Dr. Asprinio's testimony concerning the cause of death, the manner in which the injuries were inflicted and the time of the occurrence of the injuries. In our opinion his testimony as to what he observed at the autopsy and his opinions as a medical expert, based on such observation, were clearly admissible. The question of the weight to be given to his testimony was for the jury.
As one of the grounds on which defendant bases his exception to the denial of his motion for a new trial he contends in point III that he was deprived of a fair trial by the attitude of the state's attorney and certain remarks by him during the trial. With respect to the specific instances cited by defendant, there is nothing in the record indicating that he sought or received any ruling from the trial justice. In the absence of adverse rulings and timely exceptions thereto there is nothing for this court to review at this time. In such circumstances it must be assumed that defendant was satisfied that the comments and remarks in question did not prejudice his rights. See State v. Peters, 82 R.I. 292, 296, 107 A.2d 428, 48 A.L.R.2d 999, and State v. Werner, 87 R.I. 314, 140 A.2d 502.
The next ground urged by defendant relates to a series of questions to which the trial justice sustained defendant's objections. In view of ...
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State v. Mendes, 10590
...is nothing to review. State v. Casasanta, 29 R.I. 587, 595, 73 A. 312; State v. Arnold, 64 R.I. 355, 360, 12 A.2d 401; State v. Ruggiero, 93 R.I. 241, 247, 174 A.2d 555. In short, the rule in this state requires contemporaneous objection or, in the absence thereof, at least a motion to stri......
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State v. Clark
...judgment of acquittal, or better known in some jurisdictions as judgment notwithstanding the verdict. See, e.g., State v. Ruggiero, 93 R.I. 241, 247-48, 174 A.2d 555, 558 (1961) (holding, before the rules of criminal procedure were promulgated, that motions to direct a verdict of acquittal ......
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...comply with the rule will, in the ordinary case, preclude review in this court. State v. Quattrocchi, R.I., 235 A.2d 99; State v. Ruggiero, 93 R.I. 241, 174 A.2d 555; State v. Arnold, 64 R.I. 355, 12 A.2d Here, however, defendant's claim is that the evidence which was admitted was constitut......
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...act, and properly so, was to create a scientific and uniform method of investigating violent and unusual deaths. In State v. Ruggiero, 93 R.I. 241, 174 A.2d 555 (1961), the proper statutory procedure was not followed and the court These contentions lack merit. A careful reading of Chap. 23-......