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Supreme Court No. 2002-81-C.A. (P1/00-2120A) State v. Pedro Ortiz. : : :

Present: Williams, C.J., Flanders, and Goldberg, JJ. OPINION Flanders, Justice. A truck driver making an early morning delivery was the first to spot the body. Badly beaten, bruised, and bloodied, it lay in a lifeless heap by the loading-dock area of the Pawtucket Family Market Place. After considering the evidence garnered during a police investigation, a grand jury indicted the defendant, Pedro Ortiz (Ortiz or the defendant), for the second-degree murder of Jose Correa (Correa or the victim). A trial jury then found Ortiz guilty of this crime, and the trial justice sentenced him to serve a term of thirty years. The defendant raises three issues on appeal. First, the trial justice erred, he suggests, in denying his motion to suppress his custodial statements to the Pawtucket police on the grounds that the police obtained them only after they had arrested him without probable cause to do so. Second, the trial justice committed prejudicial error, he asserts, when he permitted an expert witness from the medical examiner's office (medical examiner) to testify that Correa's bloodalcohol content showed that he was impaired at the time of his death. Third, the trial justice erred, he contends, in refusing to instruct the jury on involuntary manslaughter.

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For the reasons summarized in this paragraph and explained below, we reject these arguments and affirm the conviction. Because the police had probable cause to detain and arrest defendant, the trial justice properly denied his motion to suppress. Also, the trial justice did not err in admitting the medical examiner's testimony that the victim's blood-alcohol level, which was over three times the legal minimum sufficient to convict a person for driving while intoxicated, indicated that the victim was impaired by alcohol at the time of his death. Lastly, the evidence adduced at trial did not warrant a jury instruction on involuntary manslaughter because, if Ortiz's beating of the victim did not constitute self-defense, then he mauled the victim so viciously and so extensively with a board containing protruding nails that the victim's death could not possibly have been unintentional. Facts and Travel Early on the morning of September 21, 1999, at approximately 7 a.m., truck driver Dennis Desautels (Desautels) was making a regular delivery to the Family Market Place on Barton Street in Pawtucket when he discovered the bloody, badly beaten, and apparently lifeless body of an unidentified man lying on the ground near the loading dock. Desautels got out of the truck to examine the body and to confirm that the victim was indeed dead. As a precautionary measure, however, he also requested certain people in a nearby bakery to call 9-1-1 for emergency assistance. The police responded to the scene within five minutes of this call. Robert Thurber (Thurber), a lieutenant with the Pawtucket Fire Department Rescue Squad, initially determined that the victim appeared to be dead because the body lacked a pulse or any signs of respiration. Thurber observed blood surrounding the head of the victim and noted that the body was missing a left shoe.

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Officer Shawn Driscoll (Officer Driscoll), a police officer for the Pawtucket Police Department, also arrived at the loading-dock area. Officer Driscoll observed that the victim had suffered severe facial and head injuries and that most of the blood surrounding the head had dried, but that some areas still were wet. Officer Driscoll patrolled the loading-dock area as part of his usual rounds, but he had not noticed a body lying on the ground at about 3 a.m. when he drove near the loading dock. Officer Driscoll's first thought was that defendant, whom he knew to be a homeless man and a frequent visitor to this part of the city, was himself the victim. Detective Mark Force (Det. Force), a Pawtucket police detective assigned to the identification division, processed the crime scene behind the Family Market Place. Detective Force obtained a thumb print from the victim that the authorities later used to identify the body as that of Correa, another homeless man who also was known to the Pawtucket police. He took photographs of the body and the surrounding environment and videotaped the scene. He noticed blood trailing from the loading-dock area to the victim's head. In a tree about forty feet from Correa's body, he also discovered and seized a two-by-four piece of wood with three nails sticking out of one end (the nail board). It was resting on top of a chain-link fence that separated the loading-dock area from the nearby Amtrak railroad tracks. Detective David Malkasian (Det. Malkasian) responded to the crime scene at about 8 a.m. After taking it all in, he returned to the police station to brief the police commander. He later returned to the Family Market Place, where he learned that the victim had been identified as Correa, a homeless man who he knew had frequented that location. Detective Malkasian

directed other detectives to try and locate known friends and associates of the victim, such as Ortiz. As he was leaving the parking lot onto Barton Street and then turning right onto Dexter Street, Det. Malkasian spotted Ortiz, who he knew to be one of Correa's friends, at the opposite

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end of the parking lot. Ortiz was approximately 150 yards from Correa's body. He and Det. Lieutenant Clarkson observed Ortiz sitting on a small tree stump, drinking from a bottle in a paper bag, and smoking a cigarette. Detective Malkasian approached Ortiz and asked him to put down his drink and the cigarette and to stand up. After Ortiz complied with that request, the detective noticed small cuts and abrasions on Ortiz's left hand and wrist that appeared to be recent wounds. When the detective also saw what appeared to be dried blood on Ortiz's sneakers, he asked him to turn around so he could get a better view. He then saw what he believed to be blood stains on the rear heel portion of Ortiz's sneakers. As a result, he radioed for a police officer to seize the sneakers as evidence and for a uniform car to transport Ortiz to the police station. Thereafter, the police arrested Ortiz and brought him to the station. At the station, Detective Gary Grenier (Det. Grenier), the lead investigator, and another detective questioned defendant for about two and a half hours, beginning at around noon. They brought Ortiz to an interrogation room. By this time, he was clad only in a paper "johnny" because the police had seized his clothes as evidence. According to Det. Grenier, after he advised Ortiz of his Miranda rights, Ortiz agreed to waive them. He then proceeded to provide the police with an oral recitation that they later caused to be typed into a written statement. During the interrogation, Ortiz explained to the detectives that he was concerned for Correa's safety because he had heard that some people were looking for him in connection with a robbery. According to Ortiz, he woke Correa to tell him about this because others were blaming Ortiz for certain robberies when, in fact, it was Correa that was committing them. According to what Ortiz told the detective, Correa reacted angrily upon being awakened. He allegedly seized the nail board and swung it at Ortiz, injuring Ortiz's left wrist. Ortiz said that he wrested the nail board away from Correa and struck him with it. At that point, Ortiz said, he began to walk away

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when Correa came after him again and grabbed him. Ortiz then struck Correa in the head with the nail board and Correa fell to the ground. Ortiz told the police that he then hit Correa several more times with the nail board before he threw the board over the fence that separated the Family Market Place parking lot from the railroad property. Ortiz said that Correa was still alive when he left the area because he could hear him breathing. While they were typing up Ortiz's statement, the police gave him a soda and a sandwich. It took the police about two hours to prepare the document containing Ortiz's statement. They then decided to preserve what Ortiz had told them by using a videotape recorder. In front of a camera, the police read the typed statements to Ortiz and asked him whether he agreed with those statements, recording this colloquy on videotape. The entire interrogation took six to seven hours. The autopsy revealed that Correa died from brain injuries and from skull factures caused by blunt-force trauma and that the manner of his death was homicide. According to the medical examiner who testified at the trial, Correa was five-feet nine-inches tall, weighed 157 pounds,1 had a blood-alcohol level of 0.309 percent, and a urine-alcohol level of 0.435 percent at the time of the autopsy. The medical examiner explained at trial that the victim's blood-alcohol level provided a more accurate reading of Correa's actual level of intoxication at the time of the murder. He also said that although this amount of alcohol in a person of Correa's size "would be a minimal factor in his demise," it would have caused him to be impaired. The medical examiner recounted the multiple lacerations, contusions, and abrasions on the victim's body. He indicated that it was impossible to determine precisely how many times Correa was hit, but given

______________________________________________________________________________ 1 The defendant at the time of his arrest was five-feet seven-inches tall and weighed 120 pounds. -5-

the approximately thirty or so different injuries to his body, the number of blows probably was in the range of four to fifteen: "[I]t would be unlikely to have a very low number because of the wide distribution of the wounds. There are wounds on the scalp. There are wounds on the lip. There are wounds on the thigh. * * * [S]o the wounds would have to be clustered in certain fields, but it would be impossible to come up with an exact number." Ortiz testified at his trial and explained that, in September 1999 he was homeless. Like Correa, he sometimes slept at the Family Market Place. Ortiz and his associates survived on money obtained by panhandling. He was friends with Correa for ten to fifteen years, but he said that Correa had a reputation as a violent person. He then provided examples of Correa's previous acts of violence. Correa, he said, once hit him on the head with a big rock because he refused to share his beer with Correa. On another occasion Correa jumped Ortiz and hit him with a crate because Ortiz refused to share his beer with him. Correa also cut Ortiz's leg with a knife on one occasion because Ortiz would not buy him an orange. On another occasion, he saw Correa punch his girlfriend in the face. He even saw Correa attack other homeless people and once saw him inflict what he believed were skull fractures on one of his victims. On September 21, 1999, the day of the fatal incident, Ortiz testified, he went to talk to Correa because he knew that people were after him. He said that he found Correa sleeping underneath the dumpster behind the Family Market Place. When he woke him, Correa

supposedly swung at him with the nail board, striking him on the wrist as he tried to block the blows. After he managed to take the board away from Correa, Ortiz then hit Correa with it because he was afraid Correa would try to kill him.2 When Ortiz started to walk away to dispose of the board, Correa tried to pull him down. Ortiz then turned toward Correa and struck him ______________________________________________________________________________ The defendant admitted that he never told the police while giving his statement that he was afraid of Correa on the night of the incident.
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again a couple of times with the nail board. Correa fell down. When he tried to get up, Ortiz struck him again with the nail board and then walked away. Ortiz then threw the board away to hide it from Correa because he did not want to get hit with it again. He believed Correa was still alive because, when he left him, he still heard him breathing. Although he did not see a lot of blood because it was very dark, he said that he heard and felt Correa's blood splattering on him. The next day Ortiz changed his bloody pants and went to sleep by a cemetery. Later, he purchased some beer and was sitting under a tree drinking it when the police approached him. In due course, a grand jury indicted Ortiz on a charge of second-degree murder, as provided in G.L. 1956

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