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Venturino v. State

Supreme Court of Georgia

June 24, 2019


          Warren, Justice.

         Ruiz Suchiapa Venturino was convicted of felony murder and other crimes in connection with the shooting death of Marcos Cruz.[1]On appeal, Venturino contends that the trial court erred in several ways. Finding no reversible error, we affirm.

         1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed the following. On June 29, 2013, Marcos Cruz and his son-in-law, David Sanchez, went to a bar in Savannah. While they were there, Venturino and his friend, Mayra Gomez, arrived and sat at the bar with Cruz and Sanchez. Cruz and Venturino knew each other; they were former co-workers who had previously enjoyed a good working relationship, but that relationship had deteriorated into one of animosity after Venturino disparaged his ex-girlfriend, Candelaria Sanchez (who Cruz treated like a daughter[2]), by saying she was promiscuous. Venturino ended up leaving Gomez at the bar, and Sanchez and Cruz gave Gomez a ride to her apartment in the early morning hours of June 30, 2013. Sanchez drove; Cruz sat in the passenger seat; and Gomez sat in the back. Cruz fell asleep on the way to Gomez's apartment.

         When the group arrived at Gomez's apartment complex, Sanchez saw Venturino's vehicle there. Gomez got out and walked to her apartment, where she and Venturino began arguing outside. The two went into Gomez's apartment, but Venturino came back out, approached Sanchez's vehicle looking angry and upset, and began yelling at Cruz to get out of the car. Sanchez told Venturino "to just talk things out when they were sober, not drunk," but Venturino kept shouting at Cruz, who remained asleep in the car. Venturino then pulled out a gun from behind his back, opened the passenger door, and shot Cruz twice. Before Venturino shot him, Cruz did not say anything to Venturino and did not make any kind of movement or motion. Venturino then walked back toward Gomez's apartment. Venturino knocked on the door and calmly told Gomez that he had shot Cruz and sent him "to hell." Venturino also told Gomez that he had "screwed up [his] life." Venturino never said anything to Gomez about acting in self-defense. Meanwhile, Sanchez took Cruz to the hospital, where Cruz died.

         While the police were still at the murder scene that night, Venturino returned to the scene and was arrested. Police found a .38 revolver at the scene. During the later investigation, Gomez told police that on the night of the shooting, Venturino had calmly told her that Cruz had insulted and offended him, and Venturino shot Cruz. When police processed Sanchez's car, the front-passenger seat was heavily covered in blood. They discovered a hole in the seat and recovered two bullets that a firearms examiner later determined were fired from the .38 revolver recovered at the scene. Also, at the time of Cruz's autopsy, Cruz had a blood-alcohol concentration of .238 grams per 100 milliliters, and the medical examiner testified that "in general an individual at a .238 probably would be sleepy or asleep, possibly difficult to arouse." The medical examiner further opined that the path that the bullets took through Cruz's body was consistent with the shooter standing over him as he sat.

         At trial, Venturino testified that earlier at the bar, Cruz insulted him to provoke him and threatened his life. He further testified that when he arrived at Gomez's apartment complex, Sanchez's car was already there and Sanchez was standing outside of it. Venturino saw Gomez exit and then re-enter her apartment, at which point Venturino began walking toward her apartment. As he passed Sanchez's vehicle, Venturino waved to Sanchez, but then Cruz-who Venturino did not know was in the vehicle-opened the front-passenger door. Venturino claimed that Cruz then said, "he had come to get me. That he was going to take away my life and that he was going to throw me in the river." According to Venturino, Cruz appeared to be reaching for a weapon, so Venturino shot him twice in self-defense because he feared for his life.

         Venturino does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Venturino guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Crews v. State, 300 Ga. 104, 105-106 (793 S.E.2d 393) (2016).

         2. Venturino contends that the trial court committed the following evidentiary errors: prohibiting the defense from questioning David Sanchez about portions of a phone conversation in which Venturino told Sanchez that Venturino shot Cruz in self-defense; allowing the State to introduce a gruesome autopsy photograph; allowing the State to introduce photographs of a machete and baseball bat found in the back of Venturino's vehicle; and allowing Candelaria Sanchez to testify about conversations she had with Cruz regarding disparaging things Venturino said about her. "We review a trial court's evidentiary rulings under an abuse of discretion standard of review." Williams v. State, 302 Ga. 474, 478 (807 S.E.2d 350) (2017) (punctuation and citation omitted). And even where an abuse of discretion is shown, there are no grounds for reversal if the error did not affect a "substantial right," and thus harm, the defendant. See OCGA § 24-1-103 (a) ("Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. . . ."); see also Smith v. State, 299 Ga. 424, 431 (788 S.E.2d 433) (2016) (OCGA § 24-1-103 (a) "continues Georgia's existing harmless error doctrine for erroneous evidentiary rulings"). "'In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so, '" and we assess "'whether it is highly probable that the error did not contribute to the verdict.'" Smith, 299 Ga. at 432 (quoting Rivera v. State, 295 Ga. 380, 382 (761 S.E.2d 30) (2014)). With these standards in mind, we address Venturino's claims of evidentiary error.

         (a) At trial, the State questioned Sanchez about a portion of a phone conversation he had with Venturino after the shooting, wherein Venturino asked Sanchez if he was alone and if they could meet alone to talk. The trial court then prohibited Venturino from questioning Sanchez further about Venturino's statement during that phone call that he shot Cruz because "[Cruz] was going to kill me." Venturino argues that the trial court erred when it made that ruling. However, pretermitting whether the court's denial of Venturino's request to elicit this testimony was an abuse of discretion, we conclude-after reviewing the record as a whole-that any error was harmless.

         To begin with, when Venturino testified in his own defense, the jury heard his version of events-including testimony that Venturino shot Cruz in self-defense because Cruz threatened to kill Venturino and appeared to be reaching for a weapon. Sanchez's statement that Venturino told Sanchez over the phone that Cruz was going to kill him was at least "somewhat cumulative" of Venturino's own testimony on that point. Walker v. State, Case No. S19A0177, 2019 WL 2332127, at *2 (June 3, 2019). Moreover, the State never again mentioned to the jury Venturino's request to meet with Sanchez alone, indicating that it was not a significant component of the proof against Venturino. And most importantly, the evidence showing that Venturino acted with criminal intent when he shot Cruz as Cruz sat, asleep and impaired, in Sanchez's car, was overwhelming. Westbrook v. State, 291 Ga. 60, 62-63 (727 S.E.2d 473) (2012) (any error in admitting hearsay evidence of defendant's guilt under the rule of completeness was harmless in light of other, overwhelming evidence of defendant's guilt). That evidence included Sanchez's testimony that Cruz was seated and passed-out drunk when Venturino shot him, which was corroborated by forensic evidence showing that Cruz's blood-alcohol concentration was very high and likely would have rendered him unconscious, and that the trajectory of the bullets indicated that Cruz was shot by someone who stood over him as he sat. In addition, Gomez told police that Venturino told her that Cruz had insulted and offended him. She also told police that Venturino told her after the shooting that he had sent Cruz "to hell," while saying nothing about acting in self-defense. And Venturino admitted at trial that after the shooting, he told Gomez that he had "screwed up [his] life." Considering the entire record, we conclude that it is highly probable that any error in prohibiting further questioning of Sanchez did not contribute to the verdict, and was therefore harmless. This enumeration of error fails.

         (b) Venturino argues that the trial court erred by allowing the State to introduce into evidence, over objection, an "overly gruesome" autopsy photograph. We disagree.

         Venturino takes issue with a color autopsy photograph of Cruz's opened chest cavity, with organs removed and rods inserted to approximate the trajectory of the bullets that struck him. Venturino contends that this photograph, which was introduced during the State's direct examination of the medical examiner who conducted Cruz's autopsy, was unduly prejudicial under Rule 403.

         Under our new Evidence Code, the general admissibility of autopsy photographs is governed by OCGA § 24-4-401, which defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"; OCGA § 24-4-402, which provides that "[a]ll relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules"; and OCGA § 24-4-403, which provides that "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." See also Pike v. State, 302 Ga. 795, 799-800 (809 S.E.2d 756) (2018) (affirming admission of autopsy photos that were "relevant to show the nature and location of the victim's injuries"). "Decisions regarding relevance are committed to the sound discretion of the trial court," Smith, 299 Ga. at 429, and "'the exclusion of relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly.'" Pike, 302 Ga. at 799 (quoting Benton v. State, 301 Ga. 100, 103 (799 S.E.2d 743) (2017)).

         In arguing that the photograph here should not have been admitted, Venturino relies in part on the exclusionary rule announced by this Court in Brown v. State, 250 Ga. 862, 866 (302 S.E.2d 347) (1983), that "[a] photograph which depicts the victim after autopsy incisions are made or after the state of the body is changed by authorities or the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy." But today we make clear that the categorical rule announced in Brown has been abrogated by our new Evidence Code. We note that in Brown, this Court explicitly stated that it took the "opportunity to announce a rule" about which autopsy "photos may be offered in evidence," and then proceeded to do so without citation to authority. Id. at 866. And although we cited two cases in reaching our holding in Brown, neither case concluded that the respective trial courts had committed reversible error in admitting graphic autopsy photographs, and neither relied on a statutory rule of evidence that would compel our holding in Brown. See Williams v. State, 250 Ga. 553 (300 S.E.2d 301) (1983); Ramey v. State, 250 Ga. 455 (298 S.E.2d 503) (1983). Brown, likewise, was not predicated on a statutory rule of evidence. Nor did we purport in Brown "to be reaffirming a common-law rule of evidence" in our proclamation of a new evidentiary rule. State v. Orr, Case No. S18G0994, 2019 WL 1982963, at *4 (May 6, 2019). Instead, Brown, Williams, and Ramey evaluated the admissibility of autopsy photographs based on general principles of relevance and prejudice-considerations that are now specifically controlled by the ...

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