Opinion
No. 08–P–252.
2012-06-13
COMMONWEALTH v. Orlando BADILLO (and a companion case ).
By the Court (Katzmann, Rubin & Fecteau, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants each appeal from a Superior Court jury conviction for murder in the second degree in the killing of George Carpenter. The convictions arise from the beating of Carpenter, allegedly by several individuals, including the defendants. We address only their confrontation clause claim because violation of the clause here requires reversal of the convictions. Discussion. On appeal, the defendants argue that the admission of testimony by the substitute medical examiner, the autopsy diagram, and the unredacted death certificate violated their confrontation rights under the Sixth Amendment to the United States Constitution, thus warranting reversal of their convictions. They also contend that autopsy photographs were improperly admitted. In addressing these contentions, we note that they were resolved in Commonwealth v. Rodriguez, 457 Mass. 461 (2010), involving an appeal from the murder in the first degree convictions of two other defendants, Lionel Rodriguez and Ryan Marshall, who were also charged in Carpenter's murder. That case, involving nearly the same evidence challenged here, is controlling.
A jury could have found as follows: An argument ensued between Carpenter and Robert Tirado. Carpenter walked away and got in his car, but before he could drive away, Tirado slashed Carpenter's tire. Carpenter had to stop because the tire was flat. While Carpenter's friends were changing the tire and Carpenter was standing at the side of his car, Tirado and Ryan Marshall approached Carpenter. Then, a number of cars arrived, the occupants got out, approached Carpenter, and started beating him. According to Rebecca Rose, each of the attackers, who included the defendants, delivered more than one kick to Carpenter's head, and one attacker (not identified) hit Carpenter with a tire iron more than once. Rose did not say whether the blows were delivered with any force. Carpenter died later that day; the death certificate stated that the cause of death was acute massive intra-abdominal hemorrhage. The only witness who put Badillo at the scene and also implicated Smith was Rose, who testified that she was completely intoxicated at the time of the incident.
The defendants first argue that the admission of testimony by Dr. Richard Evans, the substitute medical examiner, as to cause of death violated their confrontation rights. Dr. Evans, who did not participate in or observe the autopsy, testified because Dr. Leonard Atkins, the medical examiner who conducted the autopsy, was unavailable to testify due to a “medical infirmity.” In his testimony, Dr. Evans recited Dr. Atkins's findings regarding Carpenter's external and internal injuries, as well as Dr. Atkins's opinion in his autopsy report that Carpenter's death was caused by an “acute massive intra-abdominal hemorrhage due to blunt force trauma.” This was error. As the Rodriguez court noted, “[T]he substitute medical examiner, as an expert witness, is not permitted on direct examination to recite or otherwise testify about the underlying factual findings of the unavailable medical examiner as contained in the autopsy report.” Rodriguez, 457 Mass. at 479, quoting from Commonwealth v. Avila, 454 Mass. 744, 762 (2009). The death certificate, based on the autopsy report, and reciting the cause of death as determined by the examiner, was thus erroneously admitted in unredacted form. Similarly, Dr. Atkins's autopsy chart, depicting Carpenter's external injuries, should not have been admitted where the defendants did not have the opportunity to cross-examine him. Ibid. Finally, as to the “gruesome” autopsy photographs (which depicted Carpenter's external injuries only), id. at 475, 477, since Dr. Evans could not testify that they were fair and accurate representations of something he actually saw, they were improperly admitted where the foundational requirements for such evidence were not satisfied. Id. at 476. Moreover, where the photographs were used to buttress and illustrate the inadmissible recitation of Dr. Atkins's findings, and were inextricably interwoven with that testimony, their admission also implicated confrontation clause concerns.
Dr. Evans testified that Dr. Atkins observed abrasions, lacerations, bruising, and swelling throughout Carpenter's body and multiple fractures to the nose. Dr. Atkins also observed bloody fluid in the cavity and pericardial sac, hemorrhage, and ruptured blood vessels. Among his other findings were no skull fracture or traumatic brain injury, and no injury to the neck organs.
Other than the improperly admitted evidence, the Commonwealth produced minimal evidence about Carpenter's physical condition after the assault and no evidence about the medical cause of his death. The impermissible medical evidence established both the actual medical cause of death and the severity of the assault, a pertinent factor in establishing the cause of death and the malice prong of murder in the second degree. Here, as in Rodriguez, supra at 480, “the improperly admitted medical evidence was not cumulative” of properly admitted evidence. Although their defense was misidentification, not causation, “the defendant's theory of the case cannot relieve the Commonwealth from its burden of proving every element of a crime beyond a reasonable doubt.” Commonwealth v. Charles, 456 Mass. 378, 383 (2010). The Commonwealth produced no admissible evidence to prove cause of death, and the element of causation was the difference between a verdict of murder and the lesser offense of assault and battery by means of a dangerous weapon. The evidence of cause of death and malice “radiates from a core of tainted evidence,” Commonwealth v. Fluellen, 456 Mass. 517, 526 (2010), requiring reversal of the convictions, whether the standard be harmless error or substantial risk of a miscarriage of justice. See Rodriguez, 457 Mass. at 477, 480 (setting out standards). Moreover, quite apart from the absence of admissible evidence with respect to an element of the offense, “[w]e are not substantially confident that, in the absence of the improperly admitted medical evidence and autopsy photographs, the jury verdict would have been the same.” Id. at 479–480.
In this case, unlike in Rodriguez, supra, the substitute medical examiner did not offer, as he is permitted to do, an opinion, based on his review of the autopsy report, as to Carpenter's cause of death. See Commonwealth v. Nardi, 452 Mass. 379, 390–391 (2008); Rodriguez, 457 Mass. at 478–479.
Malice is an element of the offense of murder in the second degree. It is established “by proof beyond a reasonable doubt that the defendant specifically intended either to kill the alleged victim or to cause grievous bodily harm. Malice may also be inferred if, in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act.” Commonwealth v. Gaboriault, 439 Mass. 84, 91–92 (2003).
Given the prospect of retrial, we note Badillo's contention that testimony by the two interrogating officers regarding Smith's statement to them, albeit ultimately clarified at trial after a discrepancy emerged, created a Bruton issue (Bruton v. United States, 391 U.S. 123 [1968] ). That issue was highlighted by the way the prosecutor in closing argument characterized the testimony regarding whether Badillo's car was seen leaving one location and was later observed at the scene of the beating. This should all be explored prior to trial. See Commonwealth v. James, 424 Mass. 770, 783–784 (1997). We also note that the statement-“[w]hat would be a further tragedy is that the people responsible for the death of Mr. Carpenter were not held responsible”—was better left unsaid. See Commonwealth v. Sanchez, 405 Mass. 369, 375 (1989).
Judgments reversed. Verdicts set aside.