Dеfendant Ricardo Cruz appeals from his conviction of the knowing and intentional murder of Jessica Woodley, 17-A M.R.S.A. § 201(1)(A) (1983), following a jury trial in the Superior Court (York County, Bro-drick, J.). Defendant argues that the trial court should have entered a judgment of acquittal on the ground thаt the State failed to establish corpus delicti, and that the trial court abused its discretion by admitting a belt in evidence and by failing to grant his request for a mistrial after an outburst made in the presence of the jury by a prosecution witness. Finding no merit to any of these contentiоns, we affirm.
In the summer of 1988 the victim was introduced to defendant by one of her friends. At that time the victim was a prostitute living in Old Orchard Beach and defendant was a drug dealer living in Portland with his wife, their child, and his wife’s brother, Michael Ferrante. On Saturday evening, October 8, the victim, defendant, and Ferrante bought $250 worth of cocaine and went to the victim’s apartment to use it. When the victim asked for more and defendant refused to give her any, the victim and defendant began to argue.
Ferrante went into the victim’s bedroom to avoid being brought into the escalating dispute. After about 20 minutes, the victim came into her bedroom and told Fer-rante to get out. He did, leaving his shoes there. When he went into the kitchen, he found defendant drinking beer at the table. Ferrante called a taxi сompany at 11:42 p.m., gave the dispatcher directions to the apartment, and went outside to wait for the cab. The cab never arrived. At about 12:30 a.m., Ferrante knocked on the door of the apartment and defendant let him in. Declining defendаnt’s suggestion that he drive them both back to Portland in the victim’s car, Ferrante fell asleep on the couch in the living room without seeing the victim again.
When Ferrante woke up on Sunday morning, defendant was writing in Spanish on the wall of the kitchen. When Ferrante tried to get his shoes from the bedroom, defendant would not let him go in, protesting that the victim was asleep and probably still angry. Defendant went by himself into the bedroom to get Ferrante’s shoes. Before leaving for Portland in a cab with Ferrante, defendant placed some cocaine on the victim’s kitchen table.
Back at his apartment, Ferrante called the Portland police, gave them the Old Orchard Beach address of the victim’s apartment, and told them that someone might be hurt there. A Pоrtland detective arrived at Ferrante’s apartment to talk with him. From the window of the apartment Fer-rante and the detective watched defendant pace up and down the street, take off his tee shirt, and head for a parking lot. A number of Portland police officers who had been observing defendant’s odd behavior as well as the detective who had been interviewing Ferrante joined defendant there. According to the officers’ later testimony, defendant was pointing to pictures of the victim that were taped to his abdomen and
As a result of Ferrante’s phone call, the Old Orchard Beach police found the victim at about 10:10 a.m. on Sunday morning. When the officer arrived at the victim’s apartment, he found her dead and lying faceup on the floor of her bedroom, with a denim garment tucked around her neck and covering her head. The officer also found a belt near the victim’s head. The victim’s clothing and the belt were sent to the autopsy.
Defendant was indicted for intentional or knowing murder in January 1989. Following a four-day trial the jury returned a guilty verdict within an hour.
I.
At the autopsy the medical examiner’s only significant finding was tiny pinpoint hemorrhages across the victim’s face. The hemorrhages suggested to him that the victim had been asphyxiated by smothering or by manual оr ligature strangulation, despite the absence of such usual signs of smothering or strangulation as laryngeal damage, skin marks, or signs of a struggle. Because his findings were inconclusive, the medical examiner was not prepared to specify a cause and manner of death until he tested for the presence of drugs in the victim’s urine and blood. Those tests showed no poison and a nonlethal level of cocaine. From those tests, the medical examiner ruled out poisoning or cocainе overdose. At this point in his investigation, the medical examiner was told by the state police officer in charge of the case that defendant had admitted to others that he had strangled the victim. With this information, which was consistent with his own findings, the medical examiner declared the cause of death to be strangulation and the manner of death homicide.
Defendant argues that the trial court erred by permitting evidence of defendant’s admissions to be heard by the jury before proof of
corpus delicti
and by failing to direct a judgment of acquittal on the ground that the State failed to prove
corpus delicti.
“[T]he
corpus delicti
rule requires the State, for its case to withstand the motion for acquittal, to have proved the fact of death of the victim and the criminal agency of another responsible there-for_”
State v. Libby,
In
State v. Curlew,
first, ... present evidence independent of the defendant’s own statements adequate to prove both elements of corpus delicti to a probable cause standard and, second, ... present evidence, including any post-crime admissions or confessions made by the defendant adequate to establish the corpus delicti beyond a reasonable doubt.
State v. Larson,
We reject defendant’s contention that the judge erred in ruling on the order of proof. Before the trial began, counsel and the prеsiding justice met to discuss, among other issues,
corpus delicti.
In his offer of proof, the prosecutor told the presiding justice that he intended to present the case to the jury chronologically and he described the admissions of defendant that the jury would hear befоre it heard the medical examiner’s testimony. Finally, the prosecutor explained that when the medical examiner testified, he would give his conclusions as to the manner of the victim’s death without relying on any statements that were made by defendant. Over the objections of defense counsel, the presiding jus
Defendant’s argument that the State failеd to establish the substantive prong of the
corpus delicti
rule is similarly unavailing. Without relying on a defendant’s admissions, the State must present evidence of
corpus delicti
to a probable cause standard.
See State v. Larson,
II.
Among the items in evidencе that supported the State’s theory that defendant strangled the victim was the belt that the police found on the floor of the victim’s apartment near her body. Because the medical examiner did not conclusively determine immediately that the victim had been strangled, the police after the autopsy returned the belt to the victim’s parents with her other personal effects instead of retaining the belt for further investigation. When the victim’s mother on the stand could not identify State’s Exhibit 2 as the belt given to her by a state police officer, the prosecutor at a bench conference asked the court for permission to call the victim’s father to identify the belt. Because the State had not planned to call the victim’s fathеr, he had not been sequestered during his wife’s testimony. Over defendant’s objection, the court allowed the father to identify the belt as the one that had been given to him by the police in a box along with other items that had belonged to his daughter, but had been rеtrieved by the state police a few weeks later. He did so by putting the belt around his waist and testifying that he recognized it because he had previously worn the belt while it was in his possession.
We find no error in the court’s allowing the father to testify though not sequestered. The decision to sequester a witness is a matter left to the sound discretion of the trial court.
See State v. Pickering,
III.
Roberto Gonzalez, a 29-year-old Portland resident, was one of the witnesses called by the State to relate defendant’s admissions. Gonzalez testified that defendant had told him before the murder that the victim “probably will get killed” and admitted to him after the murder that he had killed the victim by putting poisoned cocaine in her beer. Gonzalez also testified that defendant told him that he had written in Spanish on the wall of the victim’s apаrtment. When shown a picture of the writing, Gonzalez identified defendant’s handwriting and gave a translation. During cross-examination, when defendant’s counsel challenged the accuracy of the translation, Gonzalez lost his temper, accused defensе counsel of trying to trick him, and refused to answer any more questions. At sidebar, defendant’s counsel requested a mistrial. The presiding justice refused, but, with the assent of defendant’s counsel, instructed the jury to disregard all of Gonzalez’s testimony. Defendant neither objected to the instruction nor otherwise indicated that he was not satisfied with the court’s disposition of the matter. But he argues here that the court’s failure to declare a mistrial was obvious error. We disagree. The decision to declare a mistriаl is left to the sound discretion of the trial court.
See State v. Hilton,
The entry is:
Judgment affirmed.
All concurring.