306 Ga. 391 FINAL COPY
S19A0166. VENTURINO v. THE STATE.
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,
1 The murder was committed on June 30, 2013. On September 25, 2013, a Chatham County grand jury indicted Venturino for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), possession of a firearm during the commission of Cruz’s murder (Count 3), aggravated assault of Cruz (Count 4), possession of a firearm during the commission of the aggravated assault of Cruz (Count 5), aggravated assault of David Sanchez (Count 6), and possession of a firearm during the commission of the aggravated assault of Sanchez (Count 7). At the conclusion of a trial held from April 14- 20, 2015, a jury found Venturino not guilty of Counts 6 and 7 against Sanchez, but guilty of felony murder and the remaining counts, except for malice murder. On June 2, 2015, the trial court sentenced Venturino to a life sentence for felony murder and a consecutive five-year sentence for possession of a firearm during the commission of the murder; the remaining counts were merged for sentencing purposes. Venturino filed a timely motion for new trial on June 5, 2015, which was later amended. Following a hearing, the trial court denied the motion, as amended, on July 25, 2018. Venturino filed a timely notice of appeal, and the case was docketed in this Court to the term beginning in December 2018 and submitted for a decision on the briefs. 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 (whom Cruz
treated like a daughter2), 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.
2 Candelaria Sanchez was David Sanchez’s sister, and she had previously
cared for Marcos Cruz’s then-young daughter, Carmen Cruz, who later married David Sanchez. 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
0.238 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 SCt 2781, 61 LE2d
560) (1979); Crews v. State, 300 Ga. 104, 105-106 (793 SE2d 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 SE2d 350) (2017) (citation and punctuation 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 SE2d 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 SE2d 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, 306 Ga.
___ (___ SE2d ___) (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 SE2d 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 OCGA § 24-
4-403.
Under our new Evidence Code, the general admissibility of
autopsy photographs is governed by OCGA § 24-4-401 (“Rule 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 (“Rule 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 (“Rule
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 SE2d 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 SE2d
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
SE2d 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 867. 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 SE2d 301) (1983);
Ramey v. State, 250 Ga. 455 (298 SE2d 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, 305 Ga.
729, 735 (827 SE2d 892) (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 new Evidence Code. See
OCGA §§ 24-4-401, 24-4-402, and 24-4-403; see also Orr, 305 Ga. at 735 (noting that “the old Evidence Code had no provision addressing
the exclusion of evidence as more prejudicial than probative”). Thus,
the rule we announced in Brown was the type of judge-made,
categorical evidentiary rule we disapproved in Orr. See Orr, 305 Ga.
at 738.
Given this background, and because the applicable evidentiary
rules in our new Evidence Code are modeled after the Federal Rules
of Evidence, the rule in Brown “is no doubt . . . abrogated by the new
Evidence Code.” Orr, 305 Ga. at 736. We therefore disavow the
application of the rule announced in Brown, and applied in its
progeny, in cases governed by the new Evidence Code. To evaluate
the admissibility of autopsy photos under Rules 401, 402, and 403,
we instead rely on our cases decided under the new Evidence Code,
and also look to federal case law for guidance. See Orr, 305 Ga. at
739 n.8.
Here, the medical examiner referenced the complained-of
autopsy photograph at trial as he explained that the only way he
could get the trajectory probes through Cruz’s body (and thus demonstrate the flight path of the bullets that passed through him)
was in the manner depicted in the photograph. He further explained
that the fact that he first needed to remove certain organs to position
the probes through the bullet holes was “very consistent . . . with
somebody who had been sitting when they got these wounds”; that
this was the only way to accurately demonstrate the precise flight
path of the bullets; and that “while it’s not pleasant to look at, it’s
necessary in order to understand how the bullets went through his
body.” Although the photograph was relatively gruesome, the record
shows that it depicted the “only way” the medical examiner could
insert the trajectory probes to “accurately” show the precise path
that the bullets travelled through Cruz’s body — a point that was
made to support the State’s theory that Cruz was sitting when he
was shot. Moreover, the medical examiner’s explanation of the
autopsy photo was also consistent with Sanchez’s testimony that
Cruz was seated and asleep when Venturino stood over him and shot
him. See, e.g., Pike, 302 Ga. at 799-800 (“The challenged
photographs . . . were relevant to show the nature and location of the victim’s injuries, which corroborated the State’s evidence of the
circumstances of the killing.”); Moss v. State, 298 Ga. 613, 617-618
(783 SE2d 652) (2016) (“The photos and related testimony were
relevant to show the nature and location of the victim’s injuries,
which corroborated the account of the shooting given by . . .
eyewitnesses.”). Indeed, the examiner went so far as to say that the
photograph was “necessary in order to understand how the bullets
went through [Cruz’s] body.” (Emphasis supplied.) Based on the
foregoing, we conclude that the trial court did not abuse its
discretion when it ruled that the photograph was relevant and that
its probative value was not substantially outweighed by the danger
of unfair prejudice.3
(c) Venturino argues that the trial court erred by allowing
the State to introduce into evidence, over objection, photographs of
a machete and baseball bat that law enforcement found in the back
3 Venturino also makes a strained argument that the lead detective’s
testimony that a knife found in Sanchez’s home was undisturbed and appeared clean was improper opinion testimony, but this enumeration is meritless. of his vehicle when he was arrested. Pretermitting whether the
court’s admission of that evidence was an abuse of discretion, any
error was harmless because the baseball bat and machete were
never mentioned again during trial, and as described above in
Division 2 (a), the evidence of Venturino’s guilt was overwhelming.
Compare Davis v. State, 301 Ga. 397, 400 (801 SE2d 897) (2017) (any
error in allowing evidence that defendant possessed a handgun was
harmless in light of the strong evidence of defendant’s guilt), with
Nichols v. State, 282 Ga. 401, 403-405 (651 SE2d 15) (2007)
(defendant harmed by erroneous admission of firearms and
ammunition into evidence where the items were unrelated to the
crime; where the State argued in closing that the evidence showed
defendant’s propensity for violence and killing; and where there was
substantial evidence that the victim was the actual aggressor). This
enumeration of error also fails.
(d) Venturino argues that the trial court erred by allowing
Candelaria Sanchez to testify about statements Cruz made to her
about disparaging remarks Venturino had made about her. Pretermitting whether the court’s admission of this evidence was an
abuse of discretion, any error was harmless because, as described
above in Divisions 2 (a) and (c), the evidence of Venturino’s guilt was
overwhelming. See Virger v. State, 305 Ga. 281, 294 (824 SE2d 346)
(2019) (where there was strong evidence of defendant’s guilt, alleged
error in permitting witness to testify that defendant cursed her out
was harmless).
Venturino also argues that the trial court erred by denying his
motion for a mistrial related to the Candelaria Sanchez testimony
referenced above. But the decision to grant or deny a mistrial “is
within the sound discretion of the trial court” and “will not be
disturbed unless it resulted from a manifest abuse of that
discretion.” Taylor v. State, 303 Ga. 225, 229 (811 SE2d 286) (2018)
(citations and punctuation omitted). We discern no manifest abuse
of discretion here. Despite the State’s repeated efforts to elicit from
Candelaria testimony about what “specific words” Venturino called
her, she would only generally affirm that Venturino had used
specific words that disparaged her and never stated what specific words he actually used. See Robinson v. State, 298 Ga. 455, 460 (782
SE2d 657) (2016) (no mistrial warranted where “the inadmissible
testimony about which [the defendant] complains only alludes to a
hearsay statement about an accomplice that was never admitted
into evidence”). And viewing the relatively benign testimony that
Venturino had made disparaging remarks about Candelaria in the
context of the overwhelming evidence of Venturino’s guilt, we cannot
say that the court abused its discretion in denying Venturino’s
motion for a mistrial. See Taylor, 303 Ga. at 229 (noting that
“[w]hen determining whether the trial court abused its discretion”
in ruling on a motion for mistrial, we consider, among other things,
“the statement itself, [and] other evidence against the accused”)
(citation and punctuation omitted).
3. Venturino contends that the trial court erred by refusing
his request to charge the jury on mutual combat. We disagree.
“To authorize a requested jury instruction, there need only
be slight evidence supporting the theory of the charge. Whether the
evidence presented is sufficient to authorize the giving of a charge is a question of law.” Green v. State, 302 Ga. 816, 818 (809 SE2d 738)
(2018) (citation and punctuation omitted). “‘Mutual combat occurs
when there is combat between two persons as a result of a sudden
quarrel or such circumstances as indicate a purpose, willingness,
and intent on the part of both to engage mutually in a fight.’”
Carruth v. State, 290 Ga. 342, 348 (721 SE2d 80) (2012) (quoting Ga.
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §
2.10.43) (if the jury “find[s] that there was mutual intention on the
part of both the deceased and the defendant to enter into a fight or
mutual combat and that under these circumstances the defendant
killed the deceased, then ordinarily such killing would be voluntary
manslaughter”)).
Venturino points to no record evidence that he and Cruz
intended to engage in mutual combat, and we can find none. To the
contrary, Sanchez testified that Venturino shot Cruz as Cruz slept
in the passenger seat of Sanchez’s car. And Venturino’s own
testimony — in which he claimed self-defense — contradicted a
theory of mutual combat. “[T]he scenario described by appellant supports an instruction on self-defense, which the trial court gave,
but not a mutual combat charge.” Berrian v. State, 297 Ga. 740, 743
(778 SE2d 165) (2015). This enumeration of error fails.
4. Venturino argues that the trial court erred by failing to
rebuke the prosecutor when she misstated the law regarding
voluntary manslaughter during closing argument. We again
disagree.
Specifically, Venturino complains about the prosecutor stating
during closing argument:
[M]y belief is that [defense counsel] is going to raise what we call in the law affirmative defenses. Meaning he’s going to admit [Venturino] shot and killed Marcos Cruz and that he did so when David Sanchez was sitting right there. But he’s claiming that [Venturino] was either justified in doing that, self defense, or something mitigated it. Meaning there was offensive things or all this was so sudden. You know, it’s not as bad. It’s not a murder. Give me voluntary manslaughter. So he’s either trying to outright say this is A okay. I had to do what I did. Don’t convict me at all. Or mitigate it saying again there [were] reasons I did this. And they were good ones. Do [sic] don’t have it be a murder. Have it be a voluntary manslaughter. So when somebody, a defendant, somebody charged with a crime raises those types of defenses, self defense — At that point, Venturino’s trial counsel objected: “This is
misstated. Voluntary manslaughter is not an affirmative defense.
And the way she’s phrased that argument, she’s misstated the law.”
The court responded by informing the jury, “I will be charging you
on what the law is in this case,” and allowing the prosecutor to
continue her closing argument. Immediately thereafter, the
prosecutor clarified that voluntary manslaughter is not an
affirmative defense by noting that the State has the burden of
disproving affirmative defenses beyond a reasonable doubt, and
acknowledging, “I have to do that on a self defense. On a voluntary
manslaughter it’s all up to you.” Similarly, the State distinguished
between the two during the remainder of closing argument,
specifically noting that they are “two different legal principles,” and
arguing against the application of each in turn.
On appeal, Venturino argues that the prosecutor misstated the
law by stating that voluntary manslaughter is an affirmative
defense, and that this misstatement ran afoul of OCGA § 17-8-75’s prohibition on “statements of prejudicial matters which are not in
evidence.” Venturino contends that under OCGA § 17-8-75, the trial
court was required to “rebuke the counsel and by all needful and
proper instructions to the jury endeavor to remove the improper
impression from their minds,” and that the trial court therefore
erred by overruling counsel’s objection.
We do not view the prosecutor’s statements as falling within
the statutory prohibition against “statements of prejudicial matters
which are not in evidence.” See OCGA § 17-8-75. See Kirkland v.
State, 271 Ga. 217, 219-220 (518 SE2d 687) (1999) (“[C]ounsel may
still discuss, or even argue, during closing arguments the law that
will be included in the court’s charge.” (citation and punctuation
omitted)). The comments that Venturino complains about were, at
most, a misstatement of the law and therefore outside the purview
of OCGA § 17-8-75. See Durden v. State, 293 Ga. 89, 97 (744 SE2d
9) (2013) (“[T]he [prosecutor’s] argument clearly did not inject facts
not in evidence . . . so OCGA § 17-8-75 is not applicable.” (emphasis
supplied)), overruled on other grounds by Jeffrey v. State, 296 Ga. 713, 718 (770 SE2d 585) (2015). And although attorneys are not
permitted to misstate the law to the jury, any error here was
harmless. Even though the prosecutor may have been unclear about
the distinction between voluntary manslaughter and the affirmative
defense of self-defense in the inarticulate closing-argument excerpt
Venturino highlights, the prosecutor then corrected herself and
clarified the difference between the two legal concepts in later
portions of closing argument. Moreover, the court charged the jury
separately and correctly on self-defense and voluntary
manslaughter, and we presume that jurors follow the law. See
McKie v. State, 306 Ga. 111, 115 (829 SE2d 376) (2019) (“[T]he jury
is presumed to follow the court’s instructions.”); Ware v. State, 302
Ga. 792, 794 (809 SE2d 762) (2018) (“In light of the substantial
evidence of guilt in this case, as well as the trial court’s jury
instructions, it is highly probable that neither this statement by the
prosecutor in closing argument, nor any alleged failure of the trial
court to comply with OCGA § 17-8-75, contributed to the verdict.”
(citation and punctuation omitted)). As a result, this enumeration of error fails.
Judgment affirmed. All the Justices concur.
Decided June 24, 2019 – Reconsideration dismissed July 11,
2019.
Murder. Chatham Superior Court. Before Judge Freesemann.
Steven L. Sparger, for appellant.
Meg E. Heap, District Attorney, Bradley R. Thompson,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Ashleigh D. Headrick,
Assistant Attorney General, for appellee.