Summary
holding admission of photograph of decomposed body not unduly prejudicial under rule 403
Summary of this case from McGhee v. StateOpinion
No. 01-07-00856-CR
Opinion issued March 19, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.4.
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 1085482.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
A jury convicted appellant, Keithron Marquis Fields, of capital murder. The trial court sentenced appellant to imprisonment for life without parole. In two points of error, appellant argues that (1) the trial court erred in admitting photographs of the bodies of the complainant and her boyfriend, Huy Ngo, because the probative value of the photos was substantially outweighed by the danger of unfair prejudice and (2) his constitutional and state rights to due process were violated when the State's evidence failed to conform to the proof that the State promised to present in its opening arguments. We affirm the judgment of the trial court.
See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2008) ("A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and the person intentionally commits the murder in the course of committing or attempting to commit kidnaping, burglary, robbery, aggravated assault, arson, or obstruction or retaliation.").
See id. § 12.31(a) (Vernon Supp. 2008); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (Vernon 2006).
Background
On June 18, 2006, the complainant, Maria Sally Aparece, drove her father's blue 2003 Toyota Matrix ("Matrix") to the home of her boyfriend, Huy Ngo, to return his keys. The complainant left her house at approximately 1:00 a.m. and arrived at Ngo's home at approximately 2:00 a.m. Ngo walked outside to the driveway of his home to meet the complainant and sat on the passenger's side of the Matrix with her. Appellant and four other persons drove up in a black Nissan Sentra ("Sentra") and parked next to the curb near Ngo's home. Appellant, Dexter Johnson, and accomplice witness Louis Ervin exited the Sentra and approached the Matrix; Timothy Randle and Ashley Ervin remained in the Sentra. Appellant was carrying a handgun and was wearing black pants, a black hooded jacket, a white T-shirt, and a black-and-white bandanna covering his face. Johnson was carrying a shotgun and was wearing black pants, a black shirt, a white T-shirt, and a black-and-white bandanna covering his face. Ervin wore a black outfit but had neither a gun nor a bandanna. Appellant moved to the passenger's side door of the Matrix as Johnson moved to the driver's side door. Ervin was standing at the back door of the vehicle. Johnson knocked on the driver's side window with his shotgun and told the complainant to get out of the car. Appellant stood at the passenger side window and pointed his handgun at Ngo. When the complainant refused to leave the car, Johnson threatened to shoot through the window and pull her out. When the complainant opened the car door, Johnson pulled her out of the car using her hair and threw her into the back seat. Ngo left the car and appellant directed him to sit in the back seat. Johnson then drove the Matrix out of the driveway while appellant sat in the passenger's seat and Ervin sat in the back seat with the complainant and Ngo. The two other persons in the Sentra followed. Ngo was comforting the complainant while Johnson was asking her about where she kept her money. Appellant found her purse on the passenger's seat, poured out the contents, and searched for valuables. Appellant found the complainant's credit card, and Johnson asked her if she had "some money on it." When the complainant told him that she did not have any money on the card, Johnson pointed his gun at her as he continued to drive. After discovering that the credit card was not activated, Johnson told the complainant to use her mobile phone to activate the card. When she told Johnson that she did not know how to activate the card, Johnson accused the complainant of lying. Johnson also asked Ngo if he had money. Ngo relinquished his wallet to Johnson. After driving around for approximately 30 minutes, Johnson drove to a wooded area near the 10400 block of Gateway in Houston, Texas. Johnson told Ngo to leave the car and climb into the trunk. Appellant opened the trunk and forced Ngo into the trunk. Johnson then began to sexually assault the complainant in the back seat of the car. Appellant then led Ngo out of the trunk and told him to get on the ground of the wooded area. Appellant told Ngo that Johnson was raping the complainant. Ngo began to cry. Timothy Randle, who followed appellant and his party in the Sentra, came out of his vehicle to ask Ngo if he had any money. Ngo did not answer, and Randle hit him. Ngo fell prostrate on the ground. Appellant watched as Randle brandished his gun. At approximately the same time, Johnson completed his sexual assault and left the Matrix. Johnson told the naked complainant to leave the car and get on her knees. He then told appellant that he wanted to walk the complainant and Ngo in the woods and kill them. While the complainant begged Johnson not to hurt them, Johnson and appellant led the complainant and Ngo across a board into the woods. Johnson shot both the complainant and Ngo and left their bodies in the woods. Johnson and appellant walked out of the wooded area toward the Matrix and laughed about killing the complainant and Ngo. Officers with the Humble Police Department found Johnson at an apartment in Humble, Texas after receiving a missing person's report from the mother of Johnson's fourteen-year-old girlfriend. Police arrested Johnson for possession of marijuana. Humble police also found the Matrix near Johnson's residence. Based on statements given by Johnson and evidence obtained by the Humble Police Department, homicide investigators with the Houston Police Department obtained a warrant for appellant. Appellant was arrested on June 23, 2006. Appellant's trial began on September 21, 2007. In its opening statement to the jury, the State stated, over appellant's objections, that it would present Victor Luong as a witness. The State told the jury that appellant, Dexter Johnson, and Timothy Randle had forced Luong into his own car at gunpoint and had driven Luong around for three hours to steal his property and his credit cards. The State told the jury that Luong saw Johnson driving the complainant's blue Toyota Matrix during Luong's confinement in his own car. The State also told the jury that Luong "was able to note the license plate" of the Matrix and that his testimony allowed police to "connect up some of these loose ends" in order to solve the case. The State never presented Luong's testimony to the jury. At trial, the State introduced several photographs of the bodies of the complainant and Ngo taken at the crime scene. Appellant objected to the photographs marked as State's Exhibits 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 46, 48, 50, 54, 55, 57, 58, and 60. Exhibit 33 depicts Ngo's decomposing body and the surrounding vegetation where his body was found. Exhibits 34, 35 and 36 are close-ups of Ngo's head and chest with the skull and rib cage exposed and extensive maggot infestation. Exhibits 37 and 38 depict the partially clothed lower half of Ngo's body and show decomposition in Ngo's waist and legs. Exhibits 39 and 40 depict Ngo's decomposing arms. Exhibits 41 and 42 depict Ngo's body being inspected by the medical examiner at the crime scene. Exhibit 46 depicts the backside of Ngo's body with maggot infestation on the head, back and shoulders. Exhibit 48 depicts the complainant's decomposing body with maggot infestation. Exhibit 50 is a close-up of the complainant's head with maggot infestation. Exhibits 54 and 55 are photographs of her lower body, including her legs and torso. Exhibit 57 shows the medical examiner at the crime scene placing bags over the complainant's hands. Exhibit 58 is a photograph of the complainant's backside, showing maggot infestation. Exhibit 60 depicts the medical examiner taking hair samples from the complainant's skull. Appellant made an objection to the trial court in which he said that the photographs "are not really probative of anything. No one is contesting the fact that these two people were killed and that their bodies were found there that — and that they were in a state of advanced decomposition." Appellant also said that the photos were "highly inflammatory" and that he had "never seen such, such grotesque, gruesome and grisly photos." The trial court overruled appellant's objection. The State also introduced photographs depicting the complainant's autopsy. Appellant objected to the autopsy photographs marked as State's Exhibits 146, 147, 148, 159, 160, 172 and 174. Exhibit 146 depicts the complainant's head after the medical examiner had cleaned the head. Exhibit 147 shows the wristband used to identify the complainant's body. Exhibit 148 depicts the complainant's genital area. Exhibit 159 depicts the complainant's discolored backside with significant maggot infestation. Exhibit 160 depicts the front side of the complainant's body. Exhibits 172 and 174 depict bullet wounds to Ngo's skull. Appellant made another objection, telling the trial court that the photos are "grisly, graphic 8-by-10 color photos of decomposed bodies, and internal organs and so forth. They're inflammatory and cumulative. More prejudicial." The trial court overruled appellant's objection. Appellant did not present any evidence or testimony at trial. The jury convicted appellant of the capital murder of the complainant on September 26, 2007.Admission of Photographic Evidence Under Texas Evidence Rule 403
In his first point of error, appellant argues that the trial court erred when it admitted into evidence photographs of the decedents when the probative value of the photographs were substantially outweighed by the danger of unfair prejudice in violation of Texas Rule of Evidence 403. The State argues that appellant waived his objection to the admission of the photographs and that, even if he did not, the photographs were properly admitted into evidence.Waiver of Objection to Admission of Photos
The admissibility of a photograph is within the sound discretion of the trial court. Gallo v. State, 239 S.W.3d 757, 762 (Tex.Crim.App. 2007). Generally a photograph is admissible if verbal testimony as to matters depicted in the photographs is also admissible. Id. (citing Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997)). When the trial court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury, without the necessity of repeating those objections. Tex. R. Evid. 103 (a)(1); Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003) (when defendant made objection to admission of two photographs at bench conference and received ruling admitting photographs, it was not necessary to repeat objections to preserve error). Here, appellant objected to the photos depicting the crime scene outside the hearing of the jury and prior to their introduction. After the court overruled appellant's initial objection, he did not reassert his objection to the admission of the photos marked as State's Exhibits 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 46, 48, and 50. Appellant also objected to the admission of a series of autopsy photos marked as State's Exhibits 146, 147, 148, 159, 160, 172 and 174 outside the hearing of the jury and prior to its introduction. The trial court overruled his objection. Appellant requested a running objection to these photos, and the trial court granted this request. Because appellant made his objections to the photos, outside the hearing of the jury and the trial court made a ruling overruling his objection, appellant did not waive his objections to the twenty-five photos on which he bases his appeal. Tex. R. Evid. 103 (a)(1); Martinez, 98 S.W.3d at 193. We therefore address the merits of appellant's first point of error.Rule 403 Analysis
Texas Evidence Rule 403 allows a trial court to exclude otherwise relevant evidence when the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Tex. R. Evid. 403; see also Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004). We review the trial court's admission of photographs into evidence under an abuse of discretion standard, and we will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. See Resendiz v. State, 112 S.W.3d 541, 545 (Tex.Crim.App. 2003); see also Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000). However, we must do more than decide whether the trial court conducted the required balancing analysis between probative and prejudicial values. Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006). We must determine that the trial court's ruling is reasonable in view of all the relevant facts. Id. When reviewing the trial court's ruling admitting photographic evidence to which objection has been made under Rule 403, we must consider the form, content, and context of the photographs. Erazo, 144 S.W.3d at 492 (citing Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992)). We must use the following factors when making a Rule 403 analysis: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Id. at 489 (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App. 1990)). We also consider the factors set out in Narvaiz, namely, the number of photographs, the size of the photographs, whether the photographs are in black and white or in color, whether the photographs are gruesome, whether a body is shown in the photographs clothed or naked, and whether the body has been altered by an autopsy. Erazo, 144 S.W.3d at 489; Narvaiz, 840 S.W.2d at 429. Photographs depicting matters described by admissible testimony are generally admissible. Erazo, 144 S.W.3d at 489. "If a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury." Erazo, 144 S.W.3d at 489. The probative value of a color photograph or a videotape depicting the recovery of a murder victim's body may outweigh its prejudicial effect even when the depiction includes close-ups and lingering camera angles, so long as the images simply reflect the gruesomeness of the offense. See Ripkowski v. State, 61 S.W.3d 378, 392 (Tex.Crim.App. 2001). The probative value of a series of autopsy photos of murder victims may outweigh its prejudicial effect when the series of photos is used to assist a medical examiner's testimony. Newbury v. State, 135 S.W.3d 22, 43 (Tex.Crim.App. 2004).(1) Probative Value
The challenged photos depict the crime scene and autopsies of Ngo and the complainant.(a) Crime Scene Photos
The crime scene photos were described during the direct testimony of Houston Police crime scene investigator G.H. West. Sergeant West used the photos to describe the crime scene, the injuries suffered by the victims, and the evidence obtained at the crime scene to support testimony as to the time and nature of the crime. Exhibit 33 depicts Ngo's decomposing body and the surrounding vegetation where his body was found. Exhibits 34, 35 and 36 are close-ups of Ngo's head and chest with the skull and rib cage exposed and extensive maggot infestation. Exhibits 37 and 38 depict the partially clothed lower half of Ngo's body and show decomposition in Ngo's waist and legs. Exhibits 39 and 40 depict Ngo's decomposing arms. Exhibits 41 and 42 depict Ngo's body being inspected by the medical examiner at the crime scene. Exhibit 46 depicts the backside of Ngo's body with maggot infestation on the head, back and shoulders. Exhibit 48 depicts the complainant's decomposing body with maggot infestation. Exhibit 50 is a close-up of the complainant's head with maggot infestation. Exhibits 54 and 55 are photographs of her lower body, including her legs and torso. Exhibit 57 shows the medical examiner at the crime scene placing bags over the complainant's hands. Exhibit 58 is a photograph of the complainant's backside, showing maggot infestation. Exhibit 60 depicts the medical examiner taking hair samples from the complainant's skull. While gruesome, the crime scene photos are relevant because they accurately reflect the location and state of the victims' bodies when they were discovered and the injuries inflicted on them. See Ripkowski, 61 S.W.3d at 392. Such depictions give the photos substantial probative value. Id. The crime scene photographs of the complainant's and Ngo's bodies support testimony that the victims were shot in the head and left exposed in the woods. The photographs of the complainant's body support West's testimony about the complainant's state of undress, which, in turn, corroborates the sexual assault testimony and the decomposition of the body that occurred during the period the complainant was missing, supporting testimony as to the date and circumstances of the crime. The crime scene photos of Ngo's body likewise support West's testimony about the decomposition that occurred due to the bodies' exposure to the heat and elements in the woods during the period the complainant and Ngo were missing. We conclude that the crime scene photos had substantial probative value. Ripkowski, 61 S.W.3d at 392.(b) Autopsy Photos
The autopsy photos were described during the direct testimony of Harris County assistant medical examiner Dr. Stephen Wilson. The photographs, while vivid, are not large, and all were taken from different angles. They are not excessively prejudicial. See Tex. R. Evid. 403; Erazo, 144 S.W.3d at 492 (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App. 1990)). Exhibit 146 depicts the complainant's head after the medical examiner had cleaned it. Exhibit 147 shows the wristband used to identify the complainant's body. Exhibit 148 depicts the complainant's genital area. Exhibit 159 depicts the complainant's discolored backside with significant maggot infestation. Exhibit 160 depicts the front side of the complainant's body. Exhibits 172 and 174 depict bullet wounds to Ngo's skull. The autopsy photos of both the complainant and Ngo were introduced into evidence along with testimony from Dr. Wilson. Dr. Wilson used the photos of the complainant's autopsy to explain the injuries and cause of death, namely the complainant's being shot in the head in the woods, as well as the state of decomposition due to the exposure of the body outside in the heat for several days. Wilson used the photos of Ngo's autopsy to discuss the cause of death and the state of the decomposition of Ngo's body, which was likewise consistent with its being left in the heat, and thus to place the complainant's death in context. We conclude that, because the autopsy photos were used to assist Wilson's testimony as to the cause and manner of the complainant's death, these photos have significant probative value. Newbury, 135 S.W.3d at 43. This factor thus weighs in favor of admissibility of both sets of photos.(2) Potential to Impress Jury in Irrational, Indelible Way
While the photos make an indelible impression, they do not depict more than the nature of the crime. Ripkowski, 61 S.W.3d at 392. The crime scene photos and the autopsy photos show the nature of the crime and the nature of the wounds inflicted on the victims. The photos also help to date the crime to a time shortly after the complainant disappeared. None of these images simply appeal to the jury's emotion to lead the jury to make an irrational verdict. Erazo, 144 S.W.3d at 494-95. The photos are, therefore, unlikely to render the jury irrational and incapable of making a sober assessment of the facts. Id. at 495. This factor likewise weighs in favor of admissibility of both sets of photos.(3) Time Needed to Develop Evidence
Prior to the introduction of each set of photos, the trial court convened a bench hearing on the admissibility of the individual photos and overruled each of appellant's objections. During trial, the State used the photos during direct testimony from Houston Police Department crime scene investigator G.H. West and Harris County assistant medical examiner Dr. Stephen Wilson. Because of the large number of photographs involved, the State took the necessary time to get the trial court's ruling on admissibility at a hearing before the bench. Once the trial court ruled in favor of admissibility of the photos, the State proceeded through each series of photos expeditiously. This factor weighs in favor of admissibility of both sets of photos.(4) Proponent's Need for Evidence
Appellant repeatedly told the trial court that he did not contest that the deaths were caused by Dexter Johnson and his party, and he repeatedly objected that much of the photographic evidence was unnecessary because of his concession. The State argued to the trial court that it needed photographic evidence of both the complainant's body and Ngo's body because "it goes to show that they were killed in the same time in the same area." The State also argued that the photos were needed because "some of the [State's] civilian witnesses actually went to the scene before the police ever found the bodies. It goes to corroborate what they say they saw at the scene. They described two bodies and the state they were in. I think it goes to corroborate their observations." Because the State had several witnesses whose testimony was corroborated by the photos of the complainant's and Ngo's bodies, and because the photos supported testimony as to the manner, time, and place of death, the State demonstrated a need for this evidence. This factor weighs in favor of admission of the set of photos depicting both bodies. However, the State did not prosecute appellant for Ngo's death. Therefore, this factor weighs somewhat against admission of the set of photos depicting Ngo's body.(5) Other Factors
No other factors argue materially either for or against the admission of the photos. For the foregoing reasons, we hold that the trial court did not err in admitting the photos marked as State's Exhibits 33, 34, 34, 36, 37, 38, 39, 40, 41, 42, 46, 48, 50, 54, 55, 57, 58, 59, 60, 146, 147, 148, 159, 160, 172, and 174. We overrule appellant's first point of error.Error in State's Opening Argument
In his second point of error, appellant argues that his constitutional and state rights to due process were violated when the State's evidence presented at trial failed to conform to the proof that the State stated it would present in its opening arguments. The purpose of the State's opening statement is to "state to the jury the nature of the accusation and the facts which are expected to be proved." Tex. Code Crim. Proc. Ann. art. 36.01(a)(3) (Vernon 2007). It is proper for the State to set out what it expects to prove, even if the State does not introduce supporting evidence at trial. Singleton v. State, 881 S.W.2d 207, 215 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd.) (citing Marini v. State, 593 S.W.2d 709, 715 (Tex.Crim.App. 1980)). Prior to opening statements, the trial court convened a hearing at the bench on a motion for appellant to exclude evidence of extraneous offenses. The trial court denied appellant's motion. The State began its opening statement to the jury and stated that it planned to prove that appellant and Dexter Johnson killed the complainant and Ngo after they kidnaped and robbed the couple. The State stated it would show that Johnson raped the complainant, and appellant and Johnson, aided by others, marched the complainant and Ngo into the woods and shot them. The State also stated it would provide evidence from the medical examiner, Dr. Stephen Wilson, that the bullets extracted from the complainant and Ngo matched the gun used by Johnson to kill them. Over appellant's objections, the State also stated it would provide testimony from several witnesses who saw appellant and Johnson driving around in the complainant's Matrix during the time that the complainant's and Ngo's bodies were missing. In this regard, the State stated it would to provide testimony from Victor Luong who was described as "a witness who was robbed by this group of people the very next night after the murder occurred." During its opening statement, the State made the following comment to the jury:[ State]: You will hear from a witness named Vincent Luong, a 19-year old boy who was returning to his house one night at 11:00 o'clock from the gym. He parked his car, was walking up into his parents' home when the blue Toyota Matrix pulls up, three people —
[Defense]: May I have a running objection?
[Court]: I'll give you a running objection.
[State]: Three people, including [appellant], Alvie Butler and Timothy Randle, jump out of that blue Toyota Matrix, force him at gunpoint into his own vehicle while Dexter Johnson driving the blue Toyota Matrix follows the three of them and him in his own vehicle. He'll tell you that in the three hours that they drove him around trying to get his property and his credit cards that he was able to get a very good look at [appellant]. You're going to find that Vincent Luong had very excellent survival skills, that he was able to note the license plate on the blue Toyota Matrix and that he was part of the reason why the police were able to connect some of these loose ends and figure out what was going on that week that their bodies were missing.The State failed to present Vincent Luong to the jury. The State's opening statement set out the facts it intended to prove at trial to establish appellant's guilt. Although the State stated that Luong's testimony would "connect some of these loose ends" between appellant and the crime, Luong's testimony was not a material component of the State's presentation of evidence. The State presented 24 witnesses, who covered the physical and time-line evidence connecting appellant to the crime, including three witnesses who each saw appellant in the blue Toyota Matrix in the days after the complainant's disappearance. This testimony corresponded to the State's opening statement of what it intended to prove and was sufficient to establish appellant's guilt beyond a reasonable doubt. Therefore, the reference to Luong was not improper. Marini v. State, 593 S.W.2d 709, 715 (Tex.Crim.App. 1980); see also Singleton, 881 S.W.2d at 215. Appellant relies on United States v. Young to argue that the State's failure to produce evidence that conformed to its promise in the opening statement violated his constitutional due process rights. 470 U.S. 1, 105 S. Ct. 1038 (1985). However, Young is factually distinguishable from this case. In Young, the appellant complained of a comment made by the federal prosecutor regarding his personal impressions of the culpability of the defendant during rebuttal argument after the defense counsel had made a closing argument impugning the personal integrity of the prosecutor. Id. at 4-5, 105 S. Ct. at 1040-41. The United States Supreme Court held that the prosecutor's comments did not constitute plain error that undermined the fundamental fairness of the trial. Id. at 16-17, 105 S. Ct. at 1047-48. Here, the State merely stated during opening argument that it would present Luong's testimony and what it expected that testimony to prove. The same proof that appellant was driving the complainant's Matrix after she disappeared and before her body was found was presented by other witnesses. Although the State failed to present Luong's testimony, the State did not comment on its personal impressions of appellant's culpability. Therefore, we conclude that Young does not apply. We overrule appellant's second point of error.