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11292683 | STATE v. Raymond DUGGAN | State v. Duggan | 1980-05-09 | No. 78-388-C.A. | 788 | 793 | 414 A.2d 788 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. Raymond DUGGAN. | STATE v. Raymond DUGGAN.
No. 78-388-C.A.
Supreme Court of Rhode Island.
May 9, 1980.
Dennis J. Roberts II, Atty. Gen., Faith A. LaSalle, Sp. Asst. Atty. Gen., for plaintiff.
John A. MacFadyen III, Asst. Public Defender, for defendant. | 2109 | 13454 | OPINION
MURRAY, Justice.
The petitioner appeals from denial of his application for postconviction relief filed pursuant to G.L.1956 (1969 Reenactment) §§ 10-9.1 — 1 through 10-9.1-9. The petitioner claims that his convictions rest on evidence gathered in violation of his constitutional rights.
On December 19, 1974, two men wearing ski masks robbed a Sunnybrook Farms store in Providence. One of the men carried a nickel-plated handgun. The police apprehended the driver of the escape vehicle a short distance from the store, but the two men who entered the store eluded capture at that time.
Both the officer who arrested the driver and the driver himself identified petitioner as one of the men involved in the robbery. The Providence police department secured a warrant for petitioner’s arrest on December 23,1974. A detective executed the warrant and arrested petitioner in his apartment on January 2, 1975. The police also seized in petitioner’s apartment a gun later identified as the weapon used in the robbery.
At petitioner’s trial, the state presented testimony concerning the circumstances of his arrest. The state also introduced into evidence the gun seized in petitioner’s apartment. The petitioner’s counsel sought to suppress the gun, asserting it was not seized as a lawful incident to petitioner’s arrest. The trial justice rejected those contentions, and counsel raised no further objections to introduction of the gun into evidence.
The jury convicted petitioner of robbery and conspiracy to rob on July 22, 1975. Trial counsel filed a timely appeal but withdrew as counsel prior to argument. The petitioner’s replacement counsel concluded that the police had relied on a facially defective arrest warrant to enter the apartment, effect the arrest, and seize the gun. Counsel determined that the gun could have been suppressed at trial as the fruit of an illegal arrest.
Appellate counsel’s examination of the record convinced her that she could not properly raise the defective-warrant issue on appeal. Instead, she considered an application for postconviction relief appropriate to contest the validity of the warrant. After consultation with counsel, petitioner withdrew his appeal and filed an application for postconviction relief.
A Superior Court justice denied petitioner’s application for postconviction relief on two grounds of waiver. First, he determined that withdrawal of petitioner’s appeal operated as a waiver of the warrant issue in postconviction proceedings. • He found also that petitioner and trial counsel deliberately bypassed the warrant issue at trial, thereby waiving his right to raise it in subsequent proceedings.
The Post Conviction Remedy Act provides in § 10-9.1-l(b): “This remedy is not a substitute for * * * direct review of the sentence or conviction.” The phrase “[this] remedy is not a substitute for * * direct review” indicates a legislative intent that criminal defendants present on appeal all issues that can be disposed of by direct review. The Legislature could have reasonably determined that limited availability of the postconviction remedy will prevent waste of judicial resources. In addition to the direct appeal available to a defendant after conviction, both parties in a postcon-viction proceeding may appeal to this court from an adverse judgment. Thus, unrestricted access to the postconviction remedy could result in piecemeal review of convictions in this court.
Legislative intent controls judicial interpretation when it is ascertainable and within legislative competence. Vaudreuil v. Nelson Engineering and Construction Co., R.I., 399 A.2d 1220 (1979); Little v. Conflict of Interest Commission, R.I., 397 A.2d 884 (1979). The Legislature’s power to prescribe the limits of the postconviction remedy is not at issue. We must therefore give effect to the intent of the Legislature in its enactment of § 10-9.1-l(b).
We rule therefore that a petitioner seeking postconviction relief must first satisfy the court that direct review of the issues presented in his application was not available to him. Thus, the petitioner who elects to pursue postconviction relief instead of an appeal does so at his peril. His bypass of the appeal will foreclose further consideration of all issues that could have been reviewed directly. To rule otherwise would permit substitution of postconviction proceedings for direct appeal, in contravention of the Legislature’s mandate.
On appeal, we shall not review objections to evidence which were not raised at trial. State v. Crescenzo, 114 R.I. 242, 332 A.2d 421 (1975). Counsel must object to a specific ruling to preserve issues for direct review; a blanket or general objection will not suffice. State v. Freitas, R.I., 399 A.2d 1217 (1979); State v. Levitt, 118 R.I. 32, 371 A.2d 596 (1977); State v. Quattrocchi, 103 R.I. 115, 235 A.2d 99 (1967).
In certain limited circumstances, however, we will review alleged deprivations of basic constitutional rights for the first time on appeal. State v. McGehearty, R.I., 394 A.2d 1348 (1978). Before we will entertain such claims on appeal, the trial record must indicate clearly that the defendant did not deliberately bypass the issue at trial. The record must reveal also that the alleged deprivation of basic constitutional rights would not constitute harmless error. Id. 394 A.2d at 1352. In the vast majority of cases, we are unable to resolve the deliberate bypass question on direct appeal. McGehearty raised on appeal novel constitutional claims unappreciated by his counsel at the time of trial. State v. Pope, R.I., 414 A.2d 781 (1980). In light of the novelty of the defendant’s constitutional claim, we found the record “not reasonably susceptible of the inference that trial counsel’s failure to object * * * was dictated by trial strategy * * *." State v. McGehearty, 394 A.2d at 1352-53.
In this case we could not have reviewed the warrant issue on direct appeal. The petitioner did not challenge the validity of the warrant at trial. Unlike the defendant in State v. McGehearty, petitioner does not raise novel constitutional claims that were unappreciated by his counsel at trial. Rather, he seeks application of settled constitutional principles to the facts of his case. If petitioner had raised the warrant issue on appeal, we would have remitted him to postconviction proceedings to determine whether his constitutional claims were waived as a matter of trial strategy. Id. 394 A.2d at 1352. We hold under these circumstances that the justice erred in finding that withdrawal of petitioner’s appeal precluded postconviction review of the warrant.
As a second ground for his decision, the justice found that petitioner deliberately bypassed the warrant issue at trial. He then properly concluded that a strategic decision to avoid the issue operated as a waiver in all subsequent proceedings. The justice considered the trial transcript and testimony of petitioner’s trial counsel to make his finding. He allocated the burden of proof, correctly, requiring petitioner to show by a preponderance of the evidence that he did not deliberately bypass the warrant issue at trial. Bowman v. Wainwright, 460 F.2d 1298 (5th Cir. 1972). The justice found that counsel
“knew of the search warrant and the affidavit upon which it was based, and of the gun involved in the robbery. The decision to disclaim knowledge of the gun was the defendant’s. The decision to not contest the search and seizure of the gun by the Providence Police was the result of trial counsel’s trial strategy and judgment, and was concurred in by the defendant.”
We shall not disturb on appeal the justice’s finding of fact unless he was clearly wrong or has overlooked or misconceived material evidence. Kem Manufacturing Corporation v. Howland, R.I., 401 A.2d 1284 (1979); Duffy v. Mollo, R.I., 400 A.2d 263 (1979). The petitioner contends that the justice was clearly wrong to discredit his trial counsel’s testimony that counsel did not learn of the warrant until after the trial, because the state offered no evidence to contradict trial counsel’s testimony. He relies on the principle that uncontroverted testimony ordinarily binds the trier of fact. State v. A. Capuano Bros., Inc., R.I., 384 A.2d 610, 613 (1978).
The trier of fact should state his reasons when rejecting evidence that is on its face apparently free from contradiction and inconsistency. Milliken v. Milliken, R.I., 390 A.2d 934, 936 (1978). The trier of fact may, however, reject testimony containing “inherent improbabilities or contradictions which, alone or in conjunction with other circumstances in evidence * * * ” satisfy him that the testimony is false. Correia v. Norberg, R.I., 391 A.2d 94, 98 (1978).
In a written decision, the justice did state a reason for rejecting trial counsel’s testimony. He found it “inconceivable” that an attorney of trial counsel’s “experience and caliber would discuss the gun with Mr. Duggan, but overlook the search warrant that brought out the gun.” Furthermore, petitioner stipulated to the entry of the entire trial transcript into evidence prior to the postconviction hearing. The transcript reveals that the state attempted to question the arresting officer about the warrant. Defense counsel interposed objections to each reference. The trial court then instructed the prosecuting attorney to “refrain from the Arrest Warrant.” Although those references to the warrant do not establish conclusively that trial counsel knew of the warrant at trial, they do tend to discredit counsel’s postconviction testimony. The trial references to the warrant, therefore, constitute sufficient “other circumstances in evidence" to support rejection of trial counsel’s testimony. Correia v. Norberg, 391 A.2d at 98. The justice was free to accord greater weight to the transcript than to counsel’s testimony. Nocera v. Lembo, R.I., 397 A.2d 524 (1979). The justice’s determination concerning credibility is, therefore, binding on this court. Kem Manufacturing Corporation v. Howland and Nocera v. Lembo, both supra.
We hold that the justice did not clearly err in finding that the petitioner intentionally bypassed the warrant issue at trial. That finding precluded consideration of the warrant issue in postconviction proceedings. State v. McGehearty, supra. Thus, we do not reach the merits of his constitutional claims in this appeal.
The petitioner’s appeal from the denial of his application for postconviction relief is denied and dismissed, the judgment appealed from is affirmed, and we remand the case to the Superior Court with our decision endorsed thereon.
. General Laws 1956 (1969 Reenactment) chapter 9.1 of title 10 was enacted by P.L.1974, ch. 220, § 3.
. The petitioner’s claim was cognizable in post-conviction proceedings; he claimed that he was convicted “in violation of the constitution of the United States or the constitution * * * of this state.” General Laws 1956 (1969 Reenactment) § 10-9.1-l(a)(l).
. General Laws 1956 (1969 Reenactment) § 10-9.1-9 provides: “A final judgment entered * * shall be appealable to the supreme court in the same manner and subject to the same requirements as a final judgment in a civil action.”
.We ruled in State v. Lanoue, 117 R.I. 342, 344, 366 A.2d 1158, 1160 (1976) and Palmigiano v. Mullen, R.I., 377 A.2d 242, 248 (1977), that substitution of the postconviction remedy for the writs of error coram nobis and habeas corpus, respectively, effected a change in procedure, but not in substance. We therefore interpret the Post Conviction Remedy Act to incorporate the substance of those remedies. See Commissioner’s Comment to Uniform Post-Conviction Procedure Act § 1. Prior to the enactment of the Act, we adopted for purposes of Rhode Island habeas proceedings the intentional bypass rule announced in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Reynolds v. Langlois, 99 R.I. 555, 209 A.2d 237 (1965). We recognize that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), abandoned the deliberate bypass rule articulated previously in Fay v. Noia, supra. In State v. McGehearty, R.I., 394 A.2d 1348, 1352 (1978), we reaffirmed the use in Rhode Island of the Fay v. Noia deliberate bypass rule, irrespective of Wainwright v. Sykes, supra.
. In light of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (see note 4, supra), the burden of proof on the question of deliberate bypass is no longer relevant to federal habeas proceedings. In Rhode Island we still apply the deliberate bypass rule, State v. McGehearty, R.I., 394 A.2d 1348 (1978), and therefore consider Bowman v. Wainwright, 460 F.2d 1298 (5th Cir. 1972), persuasive authority with respect to petitioner’s burden of proof on that issue.
. We apply the civil appellate rule in light of G.L.1956 (1969 Reenactment) § 10-9.1-9 and § 10-9.1-7 which provides in part, “All rules and statutes applicable in civil proceedings shall apply * *
. Trial counsel testified that he did not learn of the arrest warrant until a week before the post-conviction hearing. He testified also that if he had had the arrest warrant prior to or during trial, he would have “attacked differently.” | |
11289933 | The BIONOMIC CHURCH OF RHODE ISLAND v. Joseph L. GERARDI | Bionomic Church of Rhode Island v. Gerardi | 1980-05-01 | No. 77-356-Appeal | 474 | 477 | 414 A.2d 474 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | WEISBERGER, J., did not participate. | The BIONOMIC CHURCH OF RHODE ISLAND v. Joseph L. GERARDI. | The BIONOMIC CHURCH OF RHODE ISLAND v. Joseph L. GERARDI.
No. 77-356-Appeal.
Supreme Court of Rhode Island.
May 1, 1980.
Aram K. Berberian, Warwick, for plaintiff.
John D. Biafore, Providence, for defendant. | 1099 | 6689 | OPINION
BEVILACQUA, Chief Justice.
This is an appeal by the plaintiff from a Superior Court judgment dismissing its petition for mandamus in which the plaintiff sought to compel the defendant, the Cran-ston city clerk, to record a quit-claim deed of conveyance without recording the transfer-tax documentary stamps required by law to be affixed to the deed.
It appears that plaintiff wanted to record a copy of the original one-page deed so that a copy of the transfer-tax documentary stamps would not appear in the register.
To accomplish this, plaintiff informed defendant that it intended to affix the documentary stamps to the back of the deed. The plaintiff tendered the recording fee and requested defendant to record only the front of the deed. The defendant responded that if plaintiff insisted on placing the documentary stamps on the reverse of the deed, then a certified copy of the reverse would also have to be recorded at an additional cost of one dollar. When plaintiff refused to comply with this, defendant refused to record the deed. The plaintiff then petitioned the Superior Court to order defendant to record a copy of the deed without a copy of the documentary stamps.
The plaintiff argues that defendant’s duty was purely ministerial and that, having no discretion, defendant should have recorded the deed according to plaintiff’s wishes.
It is well established law that mandamus shall issue “only where the petitioners have a clear legal right to have the act done which is sought by the writ; and where the respondents have a ministerial, legal duty to perform such act without discretion to refuse * * Sun Oil Co. v. Macauley, 72 R.I. 206, 210, 49 A.2d 917, 919 (1946); accord Warwick School Committee v. Gibbons, R.I., 410 A.2d 1354, 1357 (1980); McKinnon v. Housing Authority, 114 R.I. 686, 688, 338 A.2d 517, 518 (1975); Aniello v. Marcello, 91 R.I. 198, 202-03, 162 A.2d 270, 272 (1960).
We have held that a recorder of deeds is a purely ministerial officer who, when presented with a deed executed in' compliance with controlling statutes, must receive and record the instrument. Redelsperger v. Redelsperger, 71 R.I. 203, 206-07, 43 A.2d 305, 306 (1945). However, the Legislature has prescribed the duties of a recorder of deeds to record instruments and has specified what is required for a deed to be a legally sufficient instrument. Accordingly, defendant was bound to comply with the applicable statutes. Consequently, if plaintiff has clear legal right to have defendant record the deed in the manner proposed, that right must appear in the statute.
General Laws 1956 (1969 Reenactment) § 34-11-1 prescribes that an instrument of conveyance is void unless recorded in the city where the land deeded is located. Section 34-13-1 directs the recorder of deeds to file, in the manner prescribed by law, instruments eligible for recording and lists the eligible instruments. Included in the list are “[a]ll instruments required by statute to be recorded, including deeds * *.” Under § 34-13-6 a certified copy of an original instrument may be filed in place of the original if “the original might properly have been recorded * *
Additionally, G.L.1956 (1970 Reenactment) § 44-25-3 provides that a deed of conveyance of realty must bear transfer-tax documentary stamps before a recorder of deeds may accept the instrument for recording. The pertinent part of a § 44-25-3 provides:
“The payment of the tax imposed by this chapter shall be evidenced by the affixing of a documentary stamp or stamps to every original instrument by the person making, executing, delivering or presenting for recording such instrument and only said original instrument shall be accepted for recording." (Emphasis added.)
A reading of the statute does not reveal any ambiguity. It is clear that the Legislature intended that a recorder of deeds accept only original instruments or certified copies of the original which have the documentary stamps attached to them so that the stamps will be evidence of payment of the tax.
Section 34-13-6, which permits a certified copy of a deed to be filed in place of the original deed, cannot be construed to change the § 44-25-3 requirement that documentary stamps appear on the recorded deed. Indeed, those two sections are in pari materia and must be construed in harmony with their general scope and purpose. Herald Press, Inc. v. Norberg, R.I., 405 A.2d 1171, 1176 (1979); State v. St. Pierre, 118 R.I. 45, 51, 371 A.2d 1048, 1051 (1977). Therefore, the certified copy of the original must contain the stamps before it can be received for recording just as the original must have the stamps affixed when presented for recording. Section 44-25-3.
The case before us is analogous to the circumstances in Souza v. O'Hara, R.I., 395 A.2d 1060 (1978). In Souza we held that mandamus did not lie to compel a ministerial officer, the Registrar of Vital Statistics, to record a common-law marriage because the controlling statute only required the registrar to record those marriages licensed and solemnized according to law. Id. 395 A.2d at 1062.
In conclusion we find that the plaintiff has no legal right to have the deed recorded without recording the stamps also. The recorder of deeds has no option but to accept for recording only an original or certified copy of a deed containing the documentary stamps required by law to appear in the register.
The plaintiff’s appeal is denied and dismissed and the judgment appealed from is affirmed.
WEISBERGER, J., did not participate.
. General Laws 1956 (1970 Reenactment) § 44-25-3 requires the person “making, executing, delivering or presenting for recording” an instrument of transfer of realty to affix documentary stamps to the deed as evidence of payment of the transfer tax imposed by § 44-25-1.
. The instrument of transfer is taxed at the rate of 55 cents for each $500 of the purchase price of the realty. General Laws 1956 (1970 Reenactment) § 44-25-1, as amended by P.L.1978, ch. 290, § 1. The documentary stamps evidence the amount of tax paid. Thus, the purchase price of the realty may be deduced from the stamps attached to the recorded deed. In its brief plaintiff states that it wished to avoid recording evidence of the price it paid for the deeded land.
. When no consideration has been paid for the transfer, the deed must contain a statement that “the consideration is such that no documentary stamps are required.” General Laws 1956 (1970 Reenactment) § 44-25-1. |
11292765 | STATE v. Samuel A. DONATO | State v. Donato | 1980-05-13 | No. 78-105-C.A. | 797 | 806 | 414 A.2d 797 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. Samuel A. DONATO. | STATE v. Samuel A. DONATO.
No. 78-105-C.A.
Supreme Court of Rhode Island.
May 13, 1980.
Dennis J. Roberts, II, Atty. Gen., Alfred • French Goldstein, Sp. Asst. Atty. Gen., for plaintiff.
Joseph A. Capineri, Pawtucket, for defendant. | 5161 | 31701 | OPINION
BEVILACQUA, Chief Justice.
The defendant, Samuel A. Donato, was indicted by a grand jury on November 16, 1973, along with his wife, Valerie Ann Do-nato, and Joseph R. Argencourt and William L. Marrapese. The indictment charged that between May 5, 1973, and October 21, 1973, they “did unlawfully conspire, confederate and agree together, and with one James Meunier, a co-conspirator but not a defendant, in violation of § 11-1— 1, G.L.R.I.1956, as amended, with the felonious intent to cheat and defraud * * * an insurance company, in violation of § 11-41-3 and § 11-41-5, G.L.R.I., 1956, as amended * * *.’’
The state consolidated the trial of defendant, Valerie Ann Donato, and Joseph Ar- gencourt with the trial of Andrew A. Bucci and N. Charles Simon, who were indicted on April 30, 1976, for a separate conspiracy to defraud another insurance company in violation of G.L.1956 (1969 Reenactment) § 11-1-1, as amended by P.L.1975, ch. 283, § 1, but who were alleged participants in the same grand scheme. The five defendants were tried together before a jury in the Superior Court of Providence County beginning on November 29, 1976. William Marrapese did not stand trial with his code-fendants; he did, however, testify as a witness for the state.
■ James Meunier, a Central Falls police officer, testified that on May 5, 1973, he entered Tres Chic Coiffures, a beauty salon in Pawtucket, to pick up his girl friend, who was having her hair done. The owner of the salon, defendant Donato, apparently aware that Meunier, a long-time acquaintance, was having some financial difficulties, asked Meunier if he would like to make some money. Meunier casually responded that he was always interested in making money but that he knew nothing about the beauty salon business. Donato replied that he was thinking more along the lines of insurance fraud and explained to Meunier that by staging a phony automobile accident and collecting on the insurance policies, they could both make a considerable amount of money.
On May 8, Meunier spoke to Detective Robert M. Squillante of the Rhode Island State Police and informed him of the conversation with defendant. Detective Squil-lante advised Meunier to wait until Donato contacted him again and then to report back. When the two met again on May 14, they prepared to have Meunier meet Dona-to’s superior in the operation. The defendant later informed Meunier that the third party did not trust Meunier completely, and Donato therefore prepared to meet Meunier alone. Before this meeting, on May 23 at Stanley’s Restaurant in Central Falls, Meu-nier had been wired with a transmitting body microphone. State police officers observed the two old friends and recorded the conversation by means of a transceiver. The defendant explained that Meunier would receive money to purchase insurance, that shortly he would be involved in a staged accident, and that sometime later he would be set up as the victim in a second accident. Meunier also testified that on the evening of May 23 defendant came to Meu-nier’s apartment, gave him $150, and directed Meunier to go to the Blais Insurance Agency to purchase a policy for his automobile. Meunier was told that he would receive money for further premium payments as they came due. In June 1973, Meunier bought a policy on his 1971 Dodge Dart, later transferring the policy when he bought a 1973 Plymouth Fury in July.
William Marrapese testified for the state that Joseph Argencourt, attorney Andrew Bucci, and Marrapese himself were in Buc-ci’s Providence law office together in early October 1973. Bucci was quite displeased that he was having recurrent mechanical problems with his Jaguar XK-12. Mar-rapese, at that time a client of Bucci, recommended that Bucci have the Jaguar “totaled out” in a staged accident. Argenc-ourt said that he knew someone who could arrange it. A day or two later, Charles Simon met with the other three gentlemen in Bucci’s office. Simon said that he had bought an insurance policy for a couple and that they were “primed and ready to go forward.” In the accident being planned, Bucci’s Jaguar would be “totaled,” the couple would file a claim for bodily injury, and Simon would take a portion from the proceeds of the claim. The four met once again on October 18 or 19 to discuss arrangements for the accident to be staged on the evening of Sunday, October 21.
Meanwhile, once again according to Meu-nier’s testimony, on Saturday, October 20, defendant Donato called Meunier to arrange a meeting to prepare for an accident in which Meunier would participate. They met Sunday morning and again on Sunday afternoon. On Sunday evening, defendant and his wife, Valerie, drove to Meunier’s apartment, and after some detours and last-minute planning, Meunier, joined by an undercover police officer, followed the Donato car to the Kirkbrae Country Club in Lin- coin. Meunier’s car had been equipped with a radio transmitter and its left taillight had been broken so that state police officers could keep its movements under surveillance. Marrapese drove Bucci’s Jaguar to the spot selected by Simon and Argencourt for the staging of the accident. The Meunier and the Donato cars followed. As all three cars and their drivers were on the scene poised to act out their parts, the state police interrupted and placed the Donatos, Marrapese, and Argencourt under arrest.
The defendant, Valerie Donato, Mar-rapese, and Argencourt each pleaded not guilty to the charge in indictment No. 73-1815. Bucci and Simon also pleaded not guilty to the charge in indictment No. 76-602. The jury found defendant guilty but could not agree on verdicts with regard to Valerie Donato, Argencourt, Simon, and Bucci. After determining that further jury deliberations would be unavailing, the trial justice declared a mistrial in the case of each of Donato’s codefendants. Both of defendant’s posttrial motions challenging the validity of the verdict against him were denied. The trial justice sentenced defendant to serve one year in the Adult Correctional Institutions but suspended the sentence and placed defendant on probation for five years. A judgment of conviction was entered. It is from that judgment that defendant now appeals.
With respect to the denial of his posttrial motions defendant contends on appeal that the jury’s verdict was not consistent with the law of conspiracy because he alone stood convicted of the conspiracy charge, and that consequently, the court lacked jurisdiction to enter judgment on the invalid verdict. We believe that defendant’s motions were properly denied.
It is true that the common-law crime of conspiracy involves a combination of two or more persons to commit some unlawful act or do some unlawful act for an unlawful purpose. State v. LaPlume, 118 R.I. 670, 677, 375 A.2d 938, 941 (1977); State v. Giorgi, 115 R.I. 1, 4, 339 A.2d 268, 270 (1975). It is also true in Rhode Island that “one defendant in a prosecution for conspiracy cannot be convicted when all of his alleged coconspirators, be they one or more, have been acquitted or been discharged under circumstances which amount to an acquittal.” State v. Fontaine, 113 R.I. 557, 558-59, 323 A.2d 571, 572 (1974); State v. McElroy, 71 R.I. 379, 392-93, 46 A.2d 397, 403 (1946). As a result of the trial in the instant case, however, not all of defendant’s alleged coconspirators were acquitted or discharged under circumstances amounting to an acquittal. One codefendant, William Marrapese, had not yet been tried, nor, according to testimony elicited by the state’s attorney, had he been granted immunity or promised that the state would dismiss the charge against him in return for his testimony. ' He was therefore still subject to prosecution. As for the other two code-fendants, Valerie Donato and Joseph Ar-gencourt, the jury was unable to agree on a verdict. The discharge of a jury in disagreement and the resulting declaration of a mistrial by the trial justice, if due to “manifest necessity,” neither constitute circumstances amounting to an acquittal, see Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717, 730 (1978); United States v. Sanford, 429 U.S. 14, 15-16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17, 19-20 (1976), (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165 (1824)); Durham v. Wyrick, 545 F.2d 41, 43 (8th Cir. 1976); 3 Wharton’s Criminal Procedure § 519, at 428 (12th ed. 1975), nor bar the state from reprosecuting the discharged codefendants for the offense charged in the original indictment. See Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832, 54 L.Ed.2d at 730.
The defendant also contends on appeal that the trial justice, by clarifying for the jury an alleged mis-citation within the indictment, improperly amended the grand jury indictment without defendant’s consent. See State v. Davis, 39 R.I. 276, 289-90, 97 A. 818, 823, reh. denied, 98 A. 57 (1916).
The indictment returned by the grand jury charged that Donato and his codefend-ants “did unlawfully conspire, confederate and agree together * * * in violation of § 11-1-1 * * * with the felonious intent to cheat and defraud General Accident Group, an insurance company, in violation of § 11-41-3 and § 11-41-5 * * It is clear from the record that the state interpreted the indictment to charge, and prepared its case and evidence to prove, a conspiracy to cheat and defraud insurance companies by purchasing automobile policies, staging fraudulent accidents, and then filing spurious personal-injury claims on the policies. Defrauding insurance companies is a crime prohibited by G.L.1956 (1969 Reenactment) § 11-41 — L The statute cited in the indictment, G.L.1956 (1969 Reenactment) § 11-41-3, however, prohibits embezzlement and fraudulent conversion. Within the indictment, therefore, lies a discrepancy between the written statement describing the crime charged and the citation of the statute allegedly violated.
Prior to the impaneling of the jury, Ar-gencourt’s attorney raised the question of the citation in the indictment of the embezzlement statute. The trial justice ruled, and made it the law of the case, that the mis-citation was an immaterial mistake. See G.L.1956 (1969 Reenactment) § 12-12-10, as amended by P.L.1974, ch. 118, § 11. Argencourt’s attorney, however, contended that the citation was not a mistake and requested the trial justice’s permission to read the embezzlement statute, § 11 — 41-3, to the jury. After the statute was read, the state’s attorney requested' the trial justice to instruct the jury that the state was attempting to prove a conspiracy to cheat and defraud under § 11^41-4, rather than a conspiracy to embezzle under § 11-41-3. The trial justice initially denied the request for such an instruction, reiterating his position that the citation of § 11-41-3 was an immaterial mistake. He also stated that such a mis-citation would not be an appropriate ground for dismissing the indictment. Subsequently, however, the trial justice decided to clarify the discrepancy between the statement of the crime charged and the statutory citation by reading pertinent parts of § 11 — 41-4 to the jury. Defense counsel objected and moved to have the case passed and the judge disqualified. Both motions were denied.
The defendant’s contentions are two: (1) the trial justice’s clarification constituted an improper amendment of the indictment, and (2) the discrepancy between the crime charged and the citation clouded the indictment to such an extent that defendant was deprived of his right “to be informed of the nature and cause of the accusation.” R.I. Const, art. I, § 10. We believe that both contentions lack merit.
The issues before us must be resolved by reconciling two separate sections of Super. R.Crim.P. 7. In support of his contention that the amendment was improper, defendant relies on Rule 7(e) which states:
“At any time prior to verdict or finding, the court may with the consent of the defendant permit the indictment to be amended to correct an error in form or the description of the offense intended to be charged or to charge a lesser included offense.” Super.R.Crim.P. 7(e) (emphasis added).
At the same time, Rule 7(c) makes reference to the problem before us:
“Error in the [statutory] citation or its omission shall not be grounds for dismissal of the indictment * * * or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” Super.R.Crim.P. 7(c).
In cases similar to the one before us, courts have permitted the amendment or judicial clarification of indictments containing erroneous statutory citations at or prior to trial because such defects are deemed to be merely formal. See, e. g., Dendy v. State, 224 Miss. 208, 213, 79 So.2d 827, 829 (1955); State v. Wines, 65 N.J.Super. 262, 268, 167 A.2d 650, 653 (1961); Henderson v. State, 7 N.J.Misc. 520, 522, 146 A. 335, 336 (1929); People v. Grawunder, 2 Misc.2d 126, 128, 151 N.Y.S.2d 137, 139 (Sup.Ct.1956). In general, we agree with this principle; our Rule 7(e), however, quite clearly requires the defendant’s consent before “an error in form” may be amended. Rule 7(c), on the other hand, indicates that a nonprejudicial error in statutory citation is harmless to the extent that it will not jeopardize the state’s case at any point before, during, or after a trial. An indictment will not be dismissed, nor a conviction reversed, even when the state has intentionally refused or unintentionally failed to amend the indictment to correct such an error in citation. From a practical viewpoint a nonprejudicial error in statutory citation simply does not need to be corrected by amendment, and such an error could not properly be deemed to be a Rule 7(e) “error in form.” Logic would dictate then that the defendant’s consent would not be required if, for whatever reason, the state or the court should choose to correct such an error by amendment. At the same time, however, an error in statutory citation which a defendant can show to be prejudicial would be deemed a Rule 7(e) “error in form” and would require the defendant’s consent before it could be corrected by amendment. The crucial question before us, then, is whether the error in the indictment was prejudicial or nonprejudicial.
To determine whether defendant suffered any prejudice or surprise as a result of either the error in statutory citation or the trial justice’s correction, we must examine the indictment. In addressing defendant’s contentions, we look first to the definition of an indictment. Rule 7(c) states that “[t]he indictment * * * shan be a plain, concise and definite written statement of the offense charged * * * which provides the defendant and the court with adequate notice of the offense being charged * * Super.R.Crim.P. 7(c) (emphasis added). Although Rule 7(c) goes on to state that-the “indictment * * * shall state * * * for each count the official or customary citation of any statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated,” it is clear that the indictment is the written statement. See 2 Wharton’s Criminal Procedure § 224, at 3. We therefore look to the written statement to determine whether defendant was adequately notified of the crime charged as required by R.I.Const. art. I, § 10.
That defendant was charged with conspiracy is not disputed. The crime of conspiracy, still a common-law crime in Rhode Island, State v. Giorgi, 115 R.I. at 5, 339 A.2d at 271, was described in the indictment in proper terms and with the proper statutory citation, viz., G.L.1956 (1969 Reenactment) § 11 — 1—l. The defendant’s argument presumes that he and his codefend-ants were not adequately apprised of the charge against them because the object of the alleged conspiracy was not described in sufficiently clear terms. Whether the indictment was constitutionally sufficient and whether defendant suffered any prejudice are questions that turn on the adequacy of the description of the object of the conspiracy. See State v. Smith, 56 R.I. 168, 177, 184 A. 494, 498 (1936).
Rule 7(c) states that the written statement describing the crime charged “shall be sufficient if the offense is charged either (1) by using the name given to the offense by the common law or by statute, or (2) by stating the definition of the offense in terms of either the common law or the statute defining the offense, or in terms of substantially the same meaning.” Super.R. Crim.P. 7(c). The crime prohibited by G.L. 1956 (1969 Reenactment) § 11 — 41-4, the statute cited for the object of the conspiracy, is entitled, “Obtaining property by false pretenses or personation.” The indictment does not describe the crime by its statutory name as prescribed by Rule 7(c)(1). The indictment therefore must at least set forth the crime in terms of the statute defining the offense or in terms of substantially the same meaning. Super.R. Crim.P. 7(c)(2).
While Rule 7(c) sets out guidelines for the adequate description of a crime in an indictment, it is nevertheless settled in Rhode Island that “an indictment charging conspiracy need not set forth the object of the conspiracy with the same particularity that would be required for an indictment charging the commission of a crime which is the object of the conspiracy.” State v. Lerner, 112 R.I. 62, 71, 308 A.2d 324, 332 (1973); State v. Gilman, 110 R.I. 207, 212-13, 291 A.2d 425, 429 (1972) (citing Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927) and Brown v. United States, 403 F.2d 489 (5th Cir. 1968)); State v. Smith, 56 R.I. at 183, 184 A. at 501. This court has also stated “that in a conspiracy to do something unlawful, the execution thereof, or the means intended or benefit derived, need not be stated in the indictment.” State v. Smith, 56 R.I. at 182, 184 A. at 500 (citing State v. Bacon, 27 R.I. 252, 257, 61 A. 653, 654-55 (1905)).
With the foregoing principles in mind, we examined that portion of the indictment which referred to the object of the conspiracy: “with the felonious intent to cheat and defraud General Accident Group, an insurance company * * We have also examined the relevant portion of § 11-41 — 4, which reads, “[ejvery person who shall obtain from another designedly, by any false pretense or pretenses, any money * * * with intent to cheat or defraud * * * shall be deemed guilty of larceny.” General Laws 1956 (1969 Reenactment) § 11 — 41— 4. Although the indictment clearly states the specific intent required, it omits two elements of the substantive crime prohibited by § 11-41-4 — the act itself, obtaining money, and the means, “by false pretense or pretenses.” Nevertheless, in light of the principles of State v. Lerner and State v. Smith, both supra, we hold that the use of the phrase “with the intent to cheat and defraud” was sufficient both to satisfy the requirements of Rule 7(c)(2) and to apprise defendant that he was being charged with the crime of conspiracy to cheat and defraud an insurance company. See State v. Bacon, 27 R.I. at 256-59, 61 A. at 654-55. We also hold that the trial justice’s correction by amendment of the error in statutory citation worked no prejudice on defendant, who had been adequately apprised of the charge against him. See United States v. Dawson, 516 F.2d 796, 804 (9th Cir. 1975); United States v. Goldstein, 502 F.2d 526, 529 (3d Cir. 1974); United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970); Stewart v. United States, 395 F.2d 484, 488 (8th Cir. 1968); People v. Grawunder, 2 Misc.2d at 128, 151 N.Y.S.2d at 139.
The defendant’s next contention is that the trial justice improperly admitted into evidence a tape recording of a conversation between James Meunier and defendant Donato. The defendant objected to the introduction of the tape on the grounds that while defendant’s statements were generally audible and understandable, Meunier’s questions and statements were consistently inaudible. The defendant argues that because Meunier could not be understood, Do-nato’s statements appear to be inculpatory only because they are out of context. The defendant contends that the taped conversation, therefore, is more prejudicial than probative.
The conversation at issue took place at Donato’s request on May 23, 1973, at Stanley’s Restaurant. With Meunier’s permission, a state police officer had strapped a small transmitting device to Meunier’s waist. At the same time the conversation was taking place in one of the restaurant booths, an officer of the state police intelligence unit was observing from the lunch counter, and other officers in a vehicle outside were recording the transmitted conversation.
The state sought to play the recording for the jury as evidence corroborating Meunier’s oral testimony. After the defense objected, the trial justice held an extensive voir dire over a two-day period in which the state laid a proper foundation and then played the tape. The tape recording as played initially, unamplified, was only partially audible; background noises made understanding the substance of the conversation difficult, and static interference marred the technical quality of the recording. After hearing the unamplified tape, the trial justice ruled that although the state had laid a proper foundation for the introduction of the tape, the recording was not sufficiently audible for the jury to understand. See People v. Stephens, 117 Cal.App.2d 653, 661, 256 P.2d 1033, 1038 (1953).
The trial justice, however, afforded the state’s attorney an opportunity to enhance the audibility of the recorded conversation. With the aid of an audio amplifier, the tape was replayed for the trial justice and counsel. After the second hearing the trial justice was satisfied that although some portions of the tape remained “difficult to understand,” on the whole the quality of the recording was consistently good throughout the conversation. He also estimated that both voices were audible about 80 percent of the time. He therefore ruled that the recorded conversation, properly edited, was sufficiently audible and intelligible to be heard by the jury.
Most jurisdictions ruling on the admissibility of sound recordings of imperfect quality or partial inaudibility have held that a recording will be admissible unless the inaudible portions or omissions are so substantial as to render the recording as a whole untrustworthy. United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971); State v. Dye, 60 N.J. 518, 531, 291 A.2d 825, 831, cert. denied, 409 U.S. 1090, 93 S.Ct. 699, 34 L.Ed.2d 675 (1972); see Bentley v. State, 397 P.2d 976, 979 (Alaska 1965); State v. Salle, 34 Wash.2d 183, 193, 208 P.2d 872, 878 (1949). Furthermore, these courts would leave the matter of the admissibility of such recordings to the sound discretion of the trial court. See United States v. Avila, 443 F.2d at 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971).
Applying these principles to the present case, we find that the trial justice did not abuse his discretion in admitting for the jury’s consideration the tape recording of the May 23 conversation. He conducted an extensive evaluation out of the presence of the jury. Twice he listened to the tape, once unamplified and once amplified. On the second listening he was able to evaluate to what extent the quality of the recording had been enhanced. His ruling, based on a thorough examination of the taped conversation, will therefore not be disturbed on appeal.
The defendant’s last contention is that the trial justice improperly denied a motion to pass the case made after an allegedly prejudicial response to a question asked by defendant Simon’s attorney during cross-examination of William Mar-rapese:
“Q. You stated that Mr. Simmons [sic] was to get a piece of the insurance policy that he had bought, did you not?
“A. He did on all his cases.”
The impact of the response on the defendants’ attorneys was not immediate. They asked to have the answer read back for clarification and then made a motion to pass the ease on the grounds that the gratuitous response prejudiced the rights of Charles Simon and his eodefendants. Although the trial justice concluded that the answer was not responsive and may have led to adverse inferences, he denied the motion to pass. Instead, he offered to give cautionary instructions to eliminate any prejudice that may have resulted. The defendants’ attorneys, however, requested that no cautionary instructions be given. The trial justice complied with their request.
The defendant asserts that Marrapese’s statement implanted into the minds of the jurors the notion that Charles Simon was “a peddler in phony claims.” He also emphatically contends that in a conspiracy case any such perception of one alleged coconspirator colors the jury’s perceptions of all other coconspirators. This court has said that “[wjhether a particular statement is prejudicial cannot be determined by a fixed formula. Rather, we will evaluate its probable effect upon the outcome of the case by examining the remark in its factual context * * State v. Pugliese, 117 R.I. 21, 26, 362 A.2d 124, 126-27 (1976). We would be willing to concede that the statement might have prejudiced Charles Simon, or perhaps Andrew Bucci, neither of whom, however, was ultimately convicted. But given the factual context in which the statement was made and the opacity of any possible reference to the role in Simon’s “cases” played by defendant, who was being tried on a separate indictment for a separate, though related, conspiracy, we do not believe that the statement was prejudicial to defendant.
The defendant also argues on appeal that the effect of the statement was to force him to make a tactical choice between (1) remaining silent, thereby unwillingly permitting the statement to tarnish the jurors’ perceptions of him and his codefendants and (2) testifying to deny the truth of the statement, thereby involuntarily waiving his privilege against self-incrimination. We believe, however, that only Charles Simon realistically faced that choice because only he could have effectively rebutted Mar-rapese’s off-handed allegation. Furthermore, because defendant faced no threat of prejudice, his contemplated denial of the accuracy of the statement would have been unnecessary.
We do not agree that because of Mar-rapese’s response the defendant suffered any serious prejudice. We therefore find that the trial justice’s denial of the motion to pass was not improper.
The defendant’s appeal is denied and dismissed, and the judgment appealed from is affirmed.
. Andrew Bucci and Charles Simon were indicted together on April 30, 1976. The basis for the indictment was information supplied to state authorities by William Marrapese, who in 1975 was serving a life sentence in a federal penitentiary in Connecticut upon convictions for three federal offenses. Sometime after Marrapese had spoken with Rhode Island State Police officers, his life sentence was reduced to three concurrent sentences of six years, five years, and six years.
. Some courts have even held that a grant of immunity does not amount to an acquittal, and therefore, the conviction of a single coconspirator will stand even though his coconspirators have secured immunity from prosecution. See, e. g., People v. Gilbert, 26 Cal.App.2d 1, 78 P.2d 770 (1938); People v. Bryant, 409 Ill. 467, 100 N.E.2d 598 (1951); Hurwitz v. State, 200 Md. 578, 92 A.2d 575 (1952). Because Marrapese did not secure formal immunity, however, we do not decide whether immunity is a disposition amounting to an acquittal under the rule of State v. McElroy, 71 R.I. 379, 392-93, 46 A.2d 397, 403 (1946).
. The issue before us is whether the trial justice properly denied defendant’s posttrial motions challenging the verdict. The record indicates that the charges against Valerie Donato, Joseph Argencourt, and William Marrapese were all dismissed in 1979 upon the motion of the state pursuant tp Super.R.Crim.P. 48(a). Whether these subsequent dismissals constituted discharges under circumstances amounting to an acquittal and, if so, whether defendant’s conviction should be overturned, are issues that were not before the court on this appeal.
. General Laws 1956 (1969 Reenactment) § 11-41-4 provides in pertinent part:
“Every person who shall obtain from another designedly, by any false pretense or pretenses, any money, goods, wares, or other property, with intent to cheat or defraud * * shall be deemed guilty of larceny.”
. General Laws 1956 (1969 Reenactment) § 11-41-3 provides:
“Embezzlement and fraudulent conversion. —Every officer, agent, clerk, servant or other person to whom any money or other property shall be entrusted for any specific purpose, and every person acting as executor, administrator, conservator, guardian, receiver, as-signee, custodian, or trustee appointed by order, decree, or judgment of court, or by deed, will or other instrument in writing, who shall embezzle or fraudulently convert to his own use, or who shall take or secrete, with intent to embezzle or fraudulently convert, to his own use, any money or other property which shall have come into his possession or shall be under his care or charge by virtue of such employment or for such specific purpose or by virtue of his acting as such executor, administrator, guardian, conservator, receiver, assignee, custodian or trustee, and every person who shall collect or receive money or property from another for a commission to be retained out of said money or other property so collected or received, and who shall fraudulently retain out of said money or property so collected or received more than the amount of said commission, and shall embezzle or fraudulently convert the same to his own use, or shall take or secrete the same with intent to embezzle or fraudulently to convert the same to his own use, shall be deemed guilty of larceny.”
.General Laws 1956 (1969 Reenactment) § 12-12-10, as amended by P.L.1974, ch. 118, § 11, reads:
“Variances of proof and immaterial mistakes. — A defendant shall not be acquitted or discharged on the ground of variance between the allegation and proof if the essential elements of the crime are correctly stated in the indictment, information or complaint, unless he is thereby prejudiced in his defense. He shall not be acquitted or discharged by reason of an immaterial misnomer of a third party, by reason of an immaterial mistake in the description of the property or the ownership thereof, by reason of failure to prove unnecessary allegations in the description of the crime, or by reason of any other immaterial mistake in the indictment, information or complaint.”
. Were we to find the error in the statutory citation prejudicial, we would be compelled to reverse the conviction because defendant never gave his consent to the trial justice’s amendment of the indictment.
. General Laws 1956 (1969 Reenactment) § 11-1-1, as amended by P.L.1975, ch. 283, § 1, provides in pertinent part:
“Common law offenses not covered by statute. — Every act and omission which is an offense at common law, and for which no punishment is prescribed by the general laws, may be prosecuted and punished as an offense at common law.” | |
11287745 | STATE v. David COLLINS et al. | State v. Collins | 1980-03-13 | No. 80-3-C.A. | 192 | 192 | 414 A.2d 192 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. David COLLINS et al. | STATE v. David COLLINS et al.
No. 80-3-C.A.
Supreme Court of Rhode Island.
March 13, 1980.
Dennis J. Roberts II, Atty. Gen., Stephen R. Famiglietti, Spec. Asst. Atty. Gen., for plaintiff.
John L. Cosentino, Gerard McG. DeCelles, Alton W. Wiley, Providence, for defendants. | 74 | 474 | ORDER
On motion of counsel, John L. Cosentino is appointed to represent defendant James Foreman and Gerard DeCelles is appointed to represent defendant Darryl Amado in the prosecution of their appeal. | |
11292604 | Frank A. CARTER, Jr., Chief Disciplinary Counsel v. Anthony S. DelGIUDICE | Carter v. DelGiudice | 1980-04-25 | No. 80-189-M.P. | 779 | 781 | 414 A.2d 779 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | BEVILACQUA, C. J., did not participate. | Frank A. CARTER, Jr., Chief Disciplinary Counsel v. Anthony S. DelGIUDICE. | Frank A. CARTER, Jr., Chief Disciplinary Counsel v. Anthony S. DelGIUDICE.
No. 80-189-M.P.
Supreme Court of Rhode Island.
April 25, 1980.
Frank A. Carter, Jr., pro se.
Leonard A. Kiernan, Jr., Providence, for respondent. | 1452 | 8867 | OPINION
KELLEHER, Justice.
The respondent, Anthony S. DelGiudice, who was admitted to the Bar of Rhode Island on December 2, 1949, is before us on an order to show cause why we should not accept the recommendation of this court’s Disciplinary Board (the Board) that he be disciplined for neglecting a matter entrusted to his care — a violation of DR6-101(A)(3) of the Code of Professional Responsibility. The recommendation follows a hearing by one of the Board’s hearing panels and acceptance by the Board of the panel’s report.
The record indicates that on October 17, 1972, Eugene G. Bedard sustained serious injuries while unloading rubbish from a truck parked at a sanitary landfill site located in Cranston. At that time, Bedard was working for Sanitas Waste Disposal of Rhode Island, Inc. (Sanitas), a corporation that specialized in the removal of industrial and commercial waste. Almost immediately after being injured, Bedard began to receive Workers’ Compensation benefits. However, sometime in the fall of 1973, Be-dard and his wife consulted with respondent, who in turn agreed with the Bedards to represent them for the specific purpose of bringing a negligence action against the operator of the landfill facility and the owner of the property upon which it was located. Bedard was injured while standing along the side of Sanitas’s truck when a bulldozer that was leveling the rubbish pushed a “four by six” piece of timber up against the truck’s open back door in such a manner that Bedard’s chest was crushed as the timber continued to push the door up against the side of the vehicle.
In July 1974, respondent accepted an appointment as legal counsel to the Rhode Island Department of Health. By accepting this appointment, he was required to devote his full time and efforts, Mondays through Fridays 8:30 a. m. to 4:30 p. m., attending to the department’s legal concerns.
On October 16, 1975, the day before the statute of limitations on the Bedards’ suit was about to expire, respondent filed a negligence complaint in the Superior Court against Angelina Capuano, as the owner of the landfill site, and A. Capuano Bros., Inc., as the operator of the landfill. In their complaint, the Bedards alleged that the driver of the bulldozer was an employee of the landfill operator and an agent of the landowner. The respondent furnished copies of the complaints and summonses for service to the sheriff’s office for Providence County. On the summonses he had listed the addresses at which the sheriff supposedly could find and serve each defendant. Since respondent was precluded from appearing in court in behalf of any clients other than the Department of Health, he appended to the complaints and summonses the name of Sidney Pauli (Pauli), an attorney whose offices are located in Warwick. Pauli had consented to the use of his name. The sheriff’s records indicate that on October 22,1975, the summonses and complaints were returned to Pauli with a notation indicating that neither defendant could be served at the addresses listed on the summonses.
On October 26,1977, the estate of Angelina Capuano and the corporate Capuano filed a motion, asking that the case against them be dismissed. Memoranda filed in support of the dismissal motion indicated that the defendants first became aware of the pendency of the negligence action when in early October 1977 a claim was filed by Pauli against Angelina’s estate. On December 14, 1977, an order was entered dismissing the Bedards’ suit. The order was based upon a finding that the plaintiffs had failed to use reasonable diligence to locate the defendants’ whereabouts once the original summonses had been returned and the fact that the A. Capuano Bros., Inc., selected by respondent was not the operator of the landfill.
The Bedards testified at the hearing and informed the panel that prior to October 1975 they had been assured by respondent that “suit had been commenced” and “the papers had been served.” When the Be-dards would ask respondent why nothing was being heard from the defendants, he would attribute this silence to the Capua-nos’ being uninsured. The first time the Bedards were aware of Pauli’s involvement was in March 1977, when Mrs. Bedard called the Superior Court clerk’s office to inquire about the status of their claims. At that time she was informed that Pauli was the attorney of record. In his testimony respondent reported that shortly after filing the complaint he had mailed the entire file to Pauli. He also testified that Pauli had agreed to handle the Bedards’ claim. On the other hand, Pauli testified that his only agreement with respondent related to the affixing of Pauli’s name to the process. He denied receiving the file. According to Pauli, once the sheriff returned the papers to him, he called respondent, informed him what had transpired, and was told to return the papers to respondent. Pauli insisted that he did as he was told. Both the Be-dards and Pauli recited many instances when respondent failed to appear for appointments that had been scheduled with either or all of them.
The Board’s record includes a copy of one of the unserved summonses that respondent had delivered to the sheriff in 1975. The respondent conceded that he had found the original summons in his file only after Pauli had called him sometime within the year preceding March 1979 to report “there was a problem about possible service.” As the questioning continued, respondent maintained that Pauli’s call was the first indication of a lack of service. He was also at a loss to explain how the summons bearing Pauli’s name and Warwick address found its way into respondent’s file.
In its findings the Board accepted the testimony offered by the Bedards and Pauli, while rejecting respondent’s version about what occurred once the Bedards had engaged his services. The Board characterized respondent’s failure to follow up on the perfection of service once he was aware of the misinformation given the sheriff as “a callous disregard of his professional responsibility to the Bedards.” There is little we can add to the Board’s apt description of respondent’s conduct. It is obvious from the record that, apart from his last-minute filing of the summons and complaint, he did nothing to protect whatever rights the Be-dards might have had in their third-party negligence action. The Board has recommended the imposition of a suspension as an appropriate disciplinary sanction.
The respondent is no stranger to our Disciplinary Board. In Murphy v. Bocchio, 114 R.I. 679, 338 A.2d 519 (1975), there are references to the “lackadaisical attitude” and “dilatory” manner that his clients dis played throughout that litigation. This procrastination by the plaintiffs resulted in the dismissal of their suit against Bocchio. The conduct described and attributed to the plaintiffs was in actuality the conduct of the respondent. As a consequence, the Murphys complained to the Board about his negligence, and in March 1976 the Board recommended public censure. When respondent appeared before this court in its chambers on April 1,1976, he indicated that he had made a cash settlement with the Murphys and presented for the court’s consideration a general release executed by them. He also assured the court that he would mend his ways and begin to discharge his professional duties in a responsible fashion. Persuaded by these representations and the monetary settlement, the court administered a private censure.
When the respondent appeared before us in response to the Board’s finding of neglect in the Bedards’ case, he once again sought something less than public sanction. However, the Bedards’ plight is a manifestation of the respondent’s continued inattention to the needs of his clients, and the time has come when this court’s primary duty is to fulfill its obligation to the public.
Consequently, it is hereby ordered and directed that the respondent, Anthony S. DelGiudice, shall be and is hereby indefinitely suspended from the practice of law before the courts of this state. The respondent is further ordered to comply with the provisions of our Rule 42-15(a) and (b) and furnish to the Clerk of this Court on or before May 12, 1980, the names and addresses of any and all clients presently being represented by him.
BEVILACQUA, C. J., did not participate.
. Apparently, the motion to dismiss alerted Pauli to the lack of service because he delivered process to the sheriff which was duly served on November 9, 1977, upon the “A. Capuano Bros., Inc.” The evidence indicates that the actual operator of the landfill was “Sanitary Landfill, Inc.” |
8456373 | Freddie CRUZ, Sr., et al. v. CITY OF PROVIDENCE, et al. | Cruz v. City of Providence | 2006-10-20 | No. 2005-49-Appeal | 405 | 407 | 908 A.2d 405 | 908 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:51.823554+00:00 | CAP | Present: WILLIAMS, C.J., FLAHERTY, and SUTTELL, JJ. | Freddie CRUZ, Sr., et al. v. CITY OF PROVIDENCE, et al. | Freddie CRUZ, Sr., et al. v. CITY OF PROVIDENCE, et al.
No. 2005-49-Appeal.
Supreme Court of Rhode Island.
Oct. 20, 2006.
Robert W. Smith, for Plaintiff.
William Smitherman, for Defendant.
Present: WILLIAMS, C.J., FLAHERTY, and SUTTELL, JJ. | 1147 | 6917 | OPINION
Justice FLAHERTY, for the Court.
The plaintiffs in this personal injury action appeal from the Superior Court’s grant of summary judgment in favor of the defendant, the City of Providence (the city or defendant). This case came before the Supreme Court for oral argument on September 25, 2006, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.
I
Facts and Procedural History
The plaintiffs Freddie Cruz Sr., Adabel Cruz, and Freddie Cruz Jr. (Freddie Jr.) brought suit in their own right and on behalf of Gabriel Cruz (Gabriel) to recover for injuries sustained by Freddie Jr. and Gabriel while the boys were riding a bicycle in Davis Park, a public park located in and owned by the city.
Freddie Jr. was riding his mountain bike on a paved entrance road that ran off Chalkstone Avenue, while Gabriel sat on the handlebars. As the boys proceeded along the roadway, they noticed a chain extending across it. To avoid the chain, Freddie Jr. maneuvered the bike to take an alternate path via an adjacent walkway. However, a chain also blocked the walkway, and, because the chain blended in with a chain link fence behind it, the boys did not notice it, and were unable to avoid running into it. Gabriel was thrown from the handlebars, suffering serious injuries. Freddie Jr. also was injured when he fell from the mountain bike. The plaintiffs sued the city, alleging negligence in allowing the chains to be put up and taken down by various individuals without any regular schedule or notice.
The city moved for summary judgment on the basis that the Recreational Use Statute, G.L. 1956 chapter 6 of title 32, shielded it from liability. A justice of the Superior Court granted the motion, applying this Court’s holding in Hanley v. State, 837 A.2d 707 (R.I.2003). The plaintiffs timely appealed.
II
Standard of Review
“When reviewing the grant of a summary judgment motion, this Court employs the same standard on review as the hearing justice.” Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I.2006) (citing Sindelar v. Leguia, 750 A.2d 967, 969 (R.I.2000)). In our de novo review, we review the evidence in the light most favorable to the nonmoving party, and if we determine that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. DelSanto v. Hyundai Motor Finance Co., 882 A.2d 561, 564 (R.I.2005).
Ill
Analysis
The plaintiffs’ sole argument is that we reconsider the interpretation of the Recreational Use Statute that we announced in Hanley. In that case we were called upon to determine the meaning of the definition of “owner” as modified by the 1996 amendment to the statute. That amendment altered the definition to: “ ‘Owner’ means the private owner possessor of a fee interest, or tenant, lessee, occupant, or person in control of the premises including the state and municipalities.” P.L. 1996, ch. 234, § 1. We held that the statute, as amended, clearly and unambiguously included the state and municipalities among those afforded immunity from tort liability. Hanley, 837 A.2d at 712.
The plaintiffs now make the same argument that was made in Hanley — that the words “including the state and municipalities” were intended to grant immunity to those governmental entities only when they held less than a fee interest in land, but not when they owned it. See Hanley, 837 A.2d at 712. However, this is the precise argument that we rejected in Han-ley.
It is noteworthy that, since this appeal was filed, we reached the same conclusion as we did in Hanley in Lacey v. Reitsma, 899 A.2d 455 (R.I.2006). In that case, a nine-year-old boy suffered permanent injuries when he fell from a twenty-foot cliff while riding his bike in Fort Adams State Park. Id. at 456. In a suit alleging negligence on the part of the state in maintaining the path from which the boy fell, we were constrained to grant summary judgment for the state based on the unambiguous language of the Recreational Use Statute, and our decision in Hanley. Id. at 458.
In that no new argument has been advanced, and that our precedent on this statute is clear and unequivocal, we will continue to honor the principle of stare decisis. We therefore affirm the grant of summary judgment in favor of the city on the ground that the Recreational Use Statute immunizes it from liability for negligence when individuals use its property for recreational purposes.
IV
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Superior Court, to which we remand the papers in this case.
Justices GOLDBERG and ROBINSON did not participate.
. General Laws 1956 § 32-6-2 of the Recreational Use Statute provides, in pertinent part:
"Definitions. — As used in this chapter:
"(3) 'Owner' means the private owner possessor of a fee interest, or tenant, lessee, occupant, or person in control of the premises including the state and municipalities;
"(4) 'Recreational purposes’ includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, horseback riding, bicycling, pleasure driving, nature study, water skiing, water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, and all other recreational purposes contemplated by this chapter; and
"(5) 'User' means any person using land for recreational purposes.”
Section 32-6-3 provides:
"Liability of landowner — Except as specifically recognized by or provided in § 32-6-5, an owner of land who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby:
"(1) Extend any assurance that the premises are safe for any purpose;
"(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor
"(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.”
. We reiterate now the difficulty we expressed in Lacey v. Reitsma, 899 A.2d 455 (R.I.2006), about a statute that classifies public park visitors as trespassers for tort law purposes, and we again suggest that the General Assembly review that statute. See id. at 458. |
8459745 | STATE v. Emmanuel BARBOSA | State v. Barbosa | 2006-10-23 | No. 2005-234-C.A. | 1000 | 1006 | 908 A.2d 1000 | 908 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:51.823554+00:00 | CAP | Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ. | STATE v. Emmanuel BARBOSA. | STATE v. Emmanuel BARBOSA.
No. 2005-234-C.A.
Supreme Court of Rhode Island.
Oct. 23, 2006.
Diane Daigle, for Plaintiff.
Marie T. Roebuck, Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ. | 2902 | 17202 | OPINION
Justice ROBINSON for the Court.
A jury found the defendant, Emmanuel Barbosa, guilty of the following felonies: (1) felony assault; (2) carrying a pistol without a license; and (3) possession of a firearm after previous conviction of a crime of violence. With respect to those three counts, the defendant received an aggregate sentence of twenty years imprisonment, with ten years to serve at the Adult Correctional Institutions and ten years suspended, with probation. In addition, he received a consecutive sentence of five years imprisonment without the possibility of parole as a consequence of his status as a habitual criminal pursuant to G.L.1956 § 12-19-21.
The defendant has appealed to this Court, contending (1) that the trial justice erred in refusing to pass the case and declare a mistrial after a particular portion of the prosecution’s redirect examination of a witness elicited an implication that defendant had intimidated the witness and (2) that the trial justice abused his discretion in denying defendant’s request for a continuance of the trial date due to the unavailability of a particular defense witness.
This case came before this Court on September 25, 2006, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. Having considered the record, the briefs filed by the parties, and the oral arguments, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. For the reasons set forth in this opinion, we deny the appeal and affirm the judgment of the Superior Court.
Facts and Travel
The defendant was charged with felony assault, carrying a pistol without a license, and possession of a firearm after previous conviction of a crime of violence. On May 10, 2004, the day the trial was scheduled to begin, defendant requested a continuance based on the unavailability of one Maria Morales, a person whom defendant said he planned to call as a witness. The trial justice denied this request; he impaneled a jury that afternoon and began the trial the next morning. Testimony from the various witnesses during the trial elicited the following facts.
On June 25, 2003, at approximately 7:30 p.m., Joseph Volpe was driving down Eastwood Avenue in Providence with his car windows open. Mr. Volpe was accompanied by his girlfriend, who was seated in the front passenger seat; he was also accompanied by Ivan Calderon and his wife, who were both seated in the back seat of the car. As Mr. Volpe proceeded down Eastwood Avenue, his car hit a dog owned by defendant.
At trial, Mr. Volpe testified that; after he hit the dog, he turned his vehicle around and heard defendant shout twice, “You hit my dog.” The defendant then approached Mr. Volpe’s car and said once again, ‘You hit my dog.” Mr. Volpe apologized, saying, “I’m sorry, but you should have had your dog on a leash.” Mr. Volpe further testified that defendant then pulled out of his shorts a black .9 millimeter gun with a brown handle and pointed it at Mr. Volpe’s head through the open car window while saying, “I could hurt you” and “I could kill you.”
During the prosecution’s case-in-chief, Mr. Calderon, one of Mr. Volpe’s back seat passengers, testified that defendant approached Mr. Volpe’s car with a piece of paper in his hands, shouting, “I’m going to call the police” and ‘You hit my dog.” Mr. Calderon denied that he had observed defendant pull a gun out of his pocket and point it at Mr. Volpe that night, which testimony contradicted a statement that he had given to the police on the night of the incident.
A defense witness, Noemi Ares, who was sitting on the porch of her house on Eastwood Avenue on June 25, 2003, testified that she observed Mr. Volpe’s car hit defendant’s dog and that she never saw defendant with a gun that night. Ms. Ares acknowledged that she had been involved in an on-and-off relationship with defendant and that they had had a child together. She also admitted that, before testifying, she had discussed her recollection of the night in question with defendant. Ms. Ares said that Maria Morales, another adult witness present that night, wrote down the license plate number of Mr. Volpe’s vehicle and gave it to defendant. Ms. Morales was unavailable to testify at trial because she was in Puerto Rico with her ill mother.
The defendant testified in his own defense that he was angry when Mr. Volpe hit his dog and that he approached Mr. Volpe’s vehicle to yell at him. The defendant stated that he pulled his prescription sunglasses out of the left pocket of his jeans and that he held a piece of paper containing Mr. Volpe’s license plate number in his right hand as he was advancing toward the ear. The defendant admitted to uttering the following words: “I should punch you in the jaw * * But, he denied consummating any such battery; he also denied threatening Mr. Volpe with a gun or even having a gun in his possession that night.
At the conclusion of the trial, the jury convicted defendant of all three counts with which he had been charged — -viz., felony assault, carrying a pistol without a license, and possession of a firearm after previous conviction of a crime of violence. The defendant then filed a motion for a new trial, which was denied on May 27, 2004. The defendant received an aggregate sentence of twenty years imprisonment, with ten years to serve and ten years suspended, with probation. The trial justice also found defendant to be a habitual criminal under § 12-19-21, imposing an additional sentence of five years imprisonment, without the possibility of parole, to be served consecutively.
On appeal to this Court, defendant contends (1) that the trial justice erred in refusing to pass the case and declare a mistrial after a particular portion of the prosecution’s redirect examination of a witness elicited an implication that defendant had intimidated the witness and (2) that the trial justice abused his discretion in denying defendant’s request for a continuance of the trial date due to the unavailability of a particular defense witness.
Standard of Review
The trial justice is vested with broad discretion regarding the decision to pass a case and declare a mistrial, and such a decision will not be reversed on appeal unless it is clearly wrong. State v. Bryant, 888 A.2d 965, 969-70 (R.I.2006) (“[T]he decision of whether or not to pass a case and declare a mistrial is also a matter left to the sound discretion of the trial justice, and that decision will not be disturbed on appeal absent clear error.”). The trial justice’s “front row seat” at the trial places him or her in the best position to determine the effect of remarks on the jury, thus justifying the broad powers he or she holds. State v. Tempest, 651 A.2d 1198, 1207 (R.I.1995); see also Bryant, 888 A.2d at 970.
Similarly, the decision as to whether or not to grant a motion for continuance in order to secure the attendance of a witness is a matter confided to the sound discretion of the trial justice; it will not be overturned on appeal unless there was an abuse of that discretion. State v. Firth, 708 A.2d 526, 530 (R.I.1998) (“A motion for continuance made immediately prior to, or during, a trial in order to secure the attendance of a witness is addressed to the sound discretion of the trial justice and will not be disturbed on appeal absent an abuse of discretion.”).
Analysis
I
The Motion to Pass the Case and Declare a Mistrial
The defendant’s first contention is that his due process rights were violated when the trial justice declined to pass the case and declare a mistrial after a particu lar portion of the prosecution’s redirect examination of a witness elicited an implication that defendant had intimidated the witness. We are not persuaded by this contention.
During the redirect examination of Mr. Calderon, the prosecuting attorney confronted Mr. Calderon regarding the inconsistency between his trial testimony and his statement to the police on June 25, 2003:
“Q. In this statement, you told the police, you told this detective, ‘He went into his pocket and pulled out a gun.’ You agree with me? Isn’t that what it says in there?
“A. That’s what it says, yeah. That’s what it says, yes.
“Q. You agree with me that you said you were at the front bumper when he pointed it at Joe [Volpe], referring to the gun? You agree that’s what it says[.] Do you see it right there? T was at the front of the car near the front bumper when he pointed it at Joe .’ Do you see that?
“(PAUSE)
“A. I didn’t see him point a gun.
“Q. Does it say that in the statement?
“A. Yes.
“Q. Okay. When did you learn, Mr. Calderone, that the defendant had a copy of this statement?
“A. Had a copy of this statement?
“[DEFENSE COUNSEL]: Objection.
“THE COURT: Hold on a second. I’m going to allow it.
Overruled.
“A. Today.
“Q. Does that statement have your address on it?
“A. Yes.
“[PROSECUTOR]: Nothing further.
“THE COURT: [Defense counsel].
“[DEFENSE COUNSEL]: I have a motion, Judge, at the side bar.”
A motion to pass a case and declare a mistrial should be granted when the trial justice determines that a witness’s remarks have “so inflamed the jurors that they no longer would be able to decide the case based on a calm and dispassionate evaluation of the evidence.” State v. Werner, 830 A.2d 1107, 1113 (R.I.2003); see also State v. Disla, 874 A.2d 190, 198 (R.I.2005). The fundamental policy consideration in this regard is that the jurors must be able to consider the evidence properly submitted without being significantly distracted by anything not in evidence. See State v. Pacheco, 763 A.2d 971, 979 (R.I.2001); see also State v. Bolduc, 822 A.2d 184, 186 (R.I.2003). In making that determination, the trial justice should not limit his or her focus to the challenged statement alone, but rather must examine it in view of the entire trial context. See Werner, 830 A.2d at 1113.
“Not all potentially prejudicial statements * * * require the trial justice to pass the case.” Bolduc, 822 A.2d at 186. More specifically, even if the words of a particular witness, if not further addressed, could have a prejudicial effect on defendant’s right to a fair trial, a motion to pass a case and declare a mistrial will properly be denied if a cautionary instruction is given in a timely manner and is effective in curing the prejudice. See State v. Shinn, 786 A.2d 1069, 1072 (R.I.2002) (“ ‘[I]f the prejudice can be cured[,] * * * a mistrial will be ordered only if we are convinced that the cautionary instructions were untimely or ineffective.’ ”); see also Disla, 874 A.2d at 198.
Here, defendant argues that the above-quoted questioning of Mr. Calderon by the prosecution gave rise to an implication that defendant had somehow intimidated Mr. Calderon. The trial justice correctly concluded that this possible implication did not rise to such a level as to necessitate the granting of defendant’s motion to pass the case and declare a mistrial, but rather could be resolved by the giving of a cautionary instruction. An appropriate and clear instruction was given in a timely manner: the trial justice instructed the jury immediately after the sidebar conference and the lunch break that followed the challenged portion of the redirect examination of Mr. Calderon. Moreover, there is no indication in the record that the cautionary instruction was likely to be ineffective. This Court must assume that the jury has disregarded those portions of testimony that were the subject of such a cautionary instruction unless some indication exists that the jury was unable to comply with the cautionary instruction. State v. Powers, 566 A.2d 1298, 1304 (R.I.1989); see also State v. Mendoza, 889 A.2d 153, 159 (R.I.2005). In this case, there is no indication that the jury was incapable of obeying the cautionary instruction. In fact, it is noteworthy that all the jurors indicated to the trial justice that it was understood by them that they must disregard both the challenged question and any answer to it.
II
Motion for a Continuance
The defendant’s second contention on appeal is that the trial justice abused his discretion in denying defendant’s request for a continuance of the trial date due to the unavailability of a defense witness, viz., Ms. Morales. We are not persuaded by this argument.
“A defendant is not entitled to a continuance * * * as a matter of course.” State v. Barnes, 122 R.I. 451, 455, 409 A.2d 988, 990 (1979); see also Firth, 708 A.2d at 530. Moreover, this Court has previously recognized the pressure on trial justices to limit their grant of requests for continuances. State v. Coelho, 454 A.2d 241, 246 (R.I.1982). Of course, it should also be noted that we have recognized that circumstances can arise which require that a request for a continuance be honored so as to protect the accused’s Sixth Amendment-based right to present favorable evidence necessary to his or her defense. State v. Gatone, 698 A.2d 230, 239 (R.I.1997).
No mechanical test exists for deciding when a denial of a request for a continuance is so arbitrary as to violate due process. Coelho, 454 A.2d at 243. Instead, the trial judge must assess the facts and circumstances of each particular case with an emphasis on the reasons pre sented for the requested continuance. See id. at 243-44; see also Barnes, 122 R.I. at 455, 409 A.2d at 990. Four main criteria should guide the trial justice when determining whether or not to grant a continuance based upon the absence of a defense witness: (1) whether the witness’s testimony would be material; (2) whether the defendant used due diligence in attempting to procure the attendance of the witness or the deposition of said witness; (3) whether it is reasonably certain that the witness would be available to testify on the date to which the trial would be continued; and (4) whether the testimony would not be merely cumulative. Firth, 708 A.2d at 530.
In this case, the trial justice properly considered and weighed the appropriate factors in making his decision to deny the request for a continuance. He noted that the absent witness’s testimony would be cumulative and that defendant had failed to procure the attendance of the witness even though he had known for at least two weeks that she was in Puerto Rico. The trial justice also detailed the eleven previous instances (over a span of six months) in which he had granted continuances to both sides, and he took into account the readiness of both the prosecution and the court to proceed with the case. Finally, he concluded that his denial of the requested continuance would not prejudice defendant.
The denial of a motion for a continuance constitutes an abuse of discretion only if the movant is able to satisfy all four of the criteria enumerated in Firth. Barnes, 122 R.I. at 456, 409 A.2d at 991. Here, the trial justice, after considering the articulated guidelines, determined that the movant had not satisfied the required conditions, particularly the second and fourth criteria. We perceive no basis in the record for concluding that the trial justice abused his discretion in reaching that determination.
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court. The record may be remanded to the Superior Court.
. There is a discrepancy in the record as to the spelling of Mr. Calderon's name. Throughout this opinion, we will use the spelling that appears on the statement he gave to the police.
. Mr. Calderon testified at trial that on the night in question he had seen defendant with a dark-colored object in his hand. By contrast, in his statement to the police Mr. Calderon stated, “[Defendant] went into his pocket * * * and pulled out a gun.” Said statement also specified that defendant had “pointed [the gun] at Joe.”
. After directing the court reporter to read back the prosecutor's question that had been challenged, the trial justice gave the following cautionary instruction:
"Members of the jury, from that question, if any of you or all of you have drawn any adverse implication from that question, I instruct you to disregard any adverse inference or thought from that question whatsoever. There was no factual basis in this case for that question to be posed. And I instruct you that the question is stricken. Any answer that may have been given — I don't recall if there was — is disregarded. There's no evidence before this Court that would warrant any adverse inference from that question.”
. Immediately after giving the cautionary instruction, the trial justice addressed the jurors as follows:
"Do you all understand that? Do you all understand that the question and any possible answer that might have been purported from that question, you have to disregard? Do you understand that?”
The trial transcript then contains the following notation:
"(ALL JURORS INDICATED AFFIRMATIVELY)." |
11287556 | STATE v. Verlin CLARK, Jr. | State v. Clark | 1980-03-05 | No. 80-97-M.P. | 188 | 188 | 414 A.2d 188 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. Verlin CLARK, Jr. | STATE v. Verlin CLARK, Jr.
No. 80-97-M.P.
Supreme Court of Rhode Island.
March 5, 1980.
Dennis J. Roberts II, Atty. Gen., Stephen Lichatin III, Spec. Asst. Atty. Gen., for plaintiff-respondent.
William P. Reilly, Public Defender, Allegra E. Munson, Marvin E. Clemons, John A. MacFadyen III, Asst. Public Defenders, for defendant-petitioner. | 72 | 474 | ORDER
The petitioner’s motion for stay of a Superior Court order denying a continuance of the trial of petitioner is hereby denied.' | |
11287631 | CITY OF WOONSOCKET v. FRATERNAL ORDER OF POLICE, LODGE # 9 et al. | City of Woonsocket v. Fraternal Order of Police, Lodge # 9 | 1980-03-13 | No. 80-65-M.P. | 189 | 189 | 414 A.2d 189 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | CITY OF WOONSOCKET v. FRATERNAL ORDER OF POLICE, LODGE # 9 et al. | CITY OF WOONSOCKET v. FRATERNAL ORDER OF POLICE, LODGE # 9 et al.
No. 80-65-M.P.
Supreme Court of Rhode Island.
March 13, 1980.
Aram P. Jarret, Jr., Asst. City Sol., Woonsocket, for petitioner.
Paul P. Baillargeon, Woonsocket, for respondents. | 47 | 297 | ORDER
The petition for writ of certiorari is denied. | |
11287875 | In re Thomas JOSEPH | In re Joseph | 1980-03-20 | No. 80-124-A | 194 | 194 | 414 A.2d 194 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | In re Thomas JOSEPH. | In re Thomas JOSEPH.
No. 80-124-A.
Supreme Court of Rhode Island.
March 20, 1980.
Robert R. Nocera, Pawtucket, The Diocesan Bureau of Social Services, for appellant.
Mitchell S. Riffkin, Providence, for appel-lees. | 68 | 416 | ORDER
The March 17, 1980 stay of that portion of the Family Court decree which would permit the return of the minor child to Richard and Judith Pelletier is continued until further order of the court. | |
11287843 | Edward J. HAYES v. PLANTATIONS STEEL CO. | Hayes v. Plantations Steel Co. | 1980-03-20 | No. 79-430-A | 194 | 194 | 414 A.2d 194 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | Edward J. HAYES v. PLANTATIONS STEEL CO. | Edward J. HAYES v. PLANTATIONS STEEL CO.
No. 79-430-A.
Supreme Court of Rhode Island.
March 20, 1980.
Reven A. McKenna, Providence, for plaintiff.
DeSimone & Del Sesto Law Corporation, Ronald W. Del Sesto, Providence, for defendant. | 49 | 317 | ORDER
The defendant’s motion that its brief be accepted as timely filed is granted. | |
11287644 | FIRST NATIONAL BANK FINANCIAL CO. et al. v. NEWPORT SHOES, INC., et al. | First National Bank Financial Co. v. Newport Shoes, Inc. | 1980-03-13 | No. 78-348-A | 189 | 189 | 414 A.2d 189 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | FIRST NATIONAL BANK FINANCIAL CO. et al. v. NEWPORT SHOES, INC., et al. | FIRST NATIONAL BANK FINANCIAL CO. et al. v. NEWPORT SHOES, INC., et al.
No. 78-348-A.
Supreme Court of Rhode Island.
March 13, 1980.
Joseph R. Tutalo, Providence, for plaintiffs.
Jeremiah C. Lynch, Jr., Newport, for defendant Henry J. DeCotis. | 129 | 792 | ORDER
This case is assigned to the April, 1980 show cause calendar. The defendant is directed to appear and show cause why this appeal should not be dismissed in view of the fact that the trial justice apparently committed no error in entering judgment for plaintiff under the terms of the guarantee and, further, defendant should be prepared to demonstrate why this case should not be remanded to Superior Court for further proceedings which may include an entry of judgment against defendant accompanied by an appropriate Rule 54(b) certificate. | |
11287689 | Ann SANTELLE et al. v. MIRIAM HOSPITAL et al. | Santelle v. Miriam Hospital | 1980-03-13 | No. 79-354-A | 191 | 191 | 414 A.2d 191 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | Ann SANTELLE et al. v. MIRIAM HOSPITAL et al. | Ann SANTELLE et al. v. MIRIAM HOSPITAL et al.
No. 79-354-A.
Supreme Court of Rhode Island.
March 13, 1980.
Lynch & Coleman, John D. Lynch, Warwick, for plaintiffs.
Roberts, Carroll, Feldstein & Tucker, David W. Carroll, R. Kelly Sheridan, Jr., Hugh L. Moore, Jr., Hinckley, Allen, Salisbury & Parsons, Thomas D. Gidley, Providence, for defendants. | 182 | 1124 | ORDER
This case came before the court on March 4, 1980, on the defendants’ motion under Rule 16(g) to affirm the judgment below which dismissed the complaint for failure to file this action for wrongful death within two years after decedent’s death. After hearing arguments of counsel and considering plaintiffs’ brief, we are of the opinion that in a wrongful death action, the two year period within which the action must be brought constitutes a condition or limitation upon the created right itself and not merely a limitation affecting the remedy. The statute permits of no exception to this requirement. Short v. Flynn, R.I., 374 A.2d 787 (1977); Tillinghast v. Reed, 70 R.I. 259, 38 A.2d 782 (1944). Therefore the motion to affirm the judgment below is hereby granted. | |
11289854 | Mary Lynn DRAKE et al. v. Margaret POPINSKI | Drake v. Popinski | 1980-04-30 | No. 79-254-Appeal | 468 | 469 | 414 A.2d 468 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | Mary Lynn DRAKE et al. v. Margaret POPINSKI. | Mary Lynn DRAKE et al. v. Margaret POPINSKI.
No. 79-254-Appeal.
Supreme Court of Rhode Island.
April 30, 1980.
E. Peter Gallogly, Jr., Wakefield, for plaintiffs.
Martin Zucker, Providence, for defendant. | 398 | 2413 | OPINION
PER CURIAM.
This is a wrongful death action brought pursuant to the pertinent provisions of G.L. 1956 (1969 Reenactment) chapter 7 of title 10. Section 10-7-2 mandates that “every such action shall be commenced within two (2) years after the death of such person * * The fatality which gave rise to this litigation occurred on August 19, 1976, but suit was not commenced until December 6, 1978. The Superior Court granted the defendant’s motion to dismiss this action because it was barred by the two-year limitation period of § 10-7-2.
After plaintiffs had filed their brief, defendant invoked this court’s Rule 16(g), asking that the appeal be summarily dismissed because the issue on which the trial justice relied is well settled. The defendant, in making the motion, relied upon our holdings in Short v. Flynn, 118 R.I. 441, 374 A.2d 787 (1977); Nascimento v. Phillips Petroleum Co., 115 R.I. 395, 346 A.2d 657 (1975), and Tillinghast v. Reed, 70 R.I. 259, 38 A.2d 782 (1944). Oral argument on defendant’s motion was heard on April 8, 1980. At that time plaintiffs acknowledged that the cases cited by defendant would bar their action, but argued that the rigid imposition of the two-year limitation period was unconstitutional, particularly as it applied to one of the minor plaintiffs who was not born at the time of the fatality. The plaintiffs concede that the constitutional issues were never raised in the trial court. The defendant responded to these assertions by asking that we apply the general principle that this court will not act on constitutional issues unless they have first been properly submitted on the record to the trial justice. Dixon v. Royal Cab, Inc., R.I., 396 A.2d 930 (1979); Town of Foster v. Lamphere, 117 R.I. 541, 368 A.2d 1238 (1977); Vigneau v. LaSalle, 111 R.I. 179, 300 A.2d 477 (1973).
Despite the vigor with which the plaintiffs have relied upon their belated constitutional arguments, we are not persuaded that we should on this record make an exception to the general rule. The defendant’s motion to affirm is granted.
The plaintiffs’ appeal is denied and dismissed, the judgment appealed from is affirmed, and the case is remanded to the Superior Court. | |
11289828 | SIMS TIRE CO., INC. v. COLONIAL DISCOUNT TIRE, INC.; STILLMAN TIRE CO. v. COLONIAL DISCOUNT TIRE, INC. | Sims Tire Co. v. Colonial Discount Tire, Inc. | 1980-04-30 | No. 76-450-Appeal | 467 | 468 | 414 A.2d 467 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | SIMS TIRE CO., INC. v. COLONIAL DISCOUNT TIRE, INC. STILLMAN TIRE CO. v. COLONIAL DISCOUNT TIRE, INC. | SIMS TIRE CO., INC. v. COLONIAL DISCOUNT TIRE, INC. STILLMAN TIRE CO. v. COLONIAL DISCOUNT TIRE, INC.
No. 76-450-Appeal.
Supreme Court of Rhode Island.
April 30, 1980.
Alton W. Wiley, Providence, for plaintiff.
Raymond R. Pezza, Providence, for defendant. | 511 | 3157 | OPINION
PER CURIAM.
These two civil actions were consolidated for a jury-waived trial that took place in Superior Court. The plaintiffs, Sims Tire Co., Inc. (Sims) and Stillman Tire Co. (Still-man), have a common ownership. In this litigation they share a common goal: each is attempting to obtain from the defendant, Colonial Discount Tire, Inc. (Colonial), money allegedly owed for tires sold and delivered to Colonial at its place of business in West Warwick.
Sometime before trial, Stillman and Sims produced at Colonial’s request a group of delivery invoices to substantiate their respective claims. At trial, the parties stipulated that there was agreement as to a portion of the amount sought in each suit. Colonial disputed the authenticity of signatures on a portion of the invoices which indicated that its service manager had acknowledged receipt of the tires listed thereon. Joe, the service manager, looked at the invoices and told the trial justice that he was not sure that the “Joe” signature appearing on those receipts was his. The trial justice, in finding for Stillman and Sims for the full amount of their claim, relied on the fact that Colonial had honored other invoices bearing “Joe’s” signature. He also placed great emphasis on the service manager’s failure to deny categorically that the disputed signatures were his. It is obvious from the foregoing that the dispute presented a question of fact that was resolved by the trial justice against Colonial.
On March 5, 1980, Colonial appeared before us in response to our order to show cause why its appeal should not be dismissed because the delivery issue presented a question of fact that the trial justice resolved against Colonial. Colonial argued at length, but, so far as disturbing the trial justice’s findings of fact, failed to show cause. Colonial has, however, demonstrated that there is a mathematical discrepancy in the judgment entered in favor of Sims.
During the trial, the litigants stipulated that Sims’s delivery invoices indicated that Colonial owed it $20,075.21 and that the dispute presently before the trial justice concerned only $11,968.90 of the amount sought. At the conclusion of the trial, when the trial justice asked what the total amount sought was as evidenced by Sims’s delivery invoices, he was told $21,538.77. Following the show-cause hearing, Sims’s counsel conceded that there was merit to Colonial’s claim of a discrepancy and agreed that the judgment entered for Sims should be reduced so as to reflect the $20,075.21 figure agreed to at trial.
Accordingly, Colonial’s appeal is sustained in part and denied in part, the judgment entered in favor of Sims is vacated, and the case is remanded to the Superior Court for the entry of a judgment which is consistent with this opinion; the judgment entered in favor of Stillman is affirmed, and the case is remanded to the Superior Court. | |
11289730 | STATE v. Nicholas J. DeVITO | State v. DeVito | 1980-04-23 | No. 78-339-C.A. | 459 | 461 | 414 A.2d 459 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. Nicholas J. DeVITO. | STATE v. Nicholas J. DeVITO.
No. 78-339-C.A.
Supreme Court of Rhode Island.
April 23, 1980.
Dennis J. Roberts II, Atty. Gen., David H. Leach, Sp. Asst. Atty. Gen., for plaintiff.
Paul J. DiMaio, Providence, for defendant. | 1221 | 7509 | OPINION
KELLEHER, Justice.
A Superior Court jury returned a guilty verdict against the defendant, Nicholas J. DeVito (Nicholas), after hearing evidence on a criminal information charging him with assault with a dangerous weapon, to wit, an automobile. Nicholas’s twofold appeal claims that the trial justice erred in rejecting his contention that his constitutional right to a speedy trial had been violated and in refusing to suppress an in-court identification of him as the driver of the dangerous weapon.
The prosecution’s star witness, Patrolman Robert 0. Coogan (Coogan), was walking a beat in downtown Providence at 1 a. m. on December 1, 1975. Coogan told the jury that at the time in question he had just turned the southeasterly corner at the intersection of Washington and Empire Streets and was proceeding along the southerly sidewalk of Washington Street in an easterly direction when he heard the screech of tires. When Coogan turned around, he saw a black Cadillac pulled up alongside the southerly curbline. This unexpected event piqued Coogan’s interest because Washington Street is a one-way street restricted to westward-bound traffic.
Matters became more interesting when the Cadillac’s occupants, Jose N. Cardillo, Jr., and Edward W. Perry (Perry), rushed up to Coogan to complain about a gun-wielding motorist in a maroon-colored car who had chased them through the downtown area as far west as Dean Street. The conversation came to an abrupt halt when the complainants informed Coogan that the maroon-colored automobile was now on Washington Street approaching them from the east. When Coogan spotted the car, he ran out into the street toward the approaching vehicle, raised his hand, and shouted, “Stop!” The moving vehicle veered towards Coogan, who immediately sought the sanctuary of the adjacent sidewalk. As the car flashed by, Coogan caught a glimpse of its two occupants as well as the number of the rear license plate. He used his walkie-talkie to inform headquarters of what had just occurred, the direction the car was heading, and the number listed on the license plate. Within a matter of minutes, the speeding vehicle crashed against a utility pole on Knight Street. Nicholas was arrested as he was about to extricate himself from the driver’s seat, while the car’s owner and Nicholas’s cousin, Rudolph DeVi-to (Rudolph), was found wandering three blocks away on Westminster Street. Coo-gan was taken to the collision scene where he identified the vehicle as the automobile that he had attempted to stop on Washington Street.
We reject Nicholas’s claim that his constitutional guarantee to a speedy trial has been denied him. We, like the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 536, 92 S.Ct. 2182, 2195, 33 L.Ed.2d 101, 120 (1972), are not about to
“rule that * * * defendant was denied * * * [his] constitutional right [to speedy trial] on a record that strongly indicates, as does this one, that * * * [he] did not want a speedy trial.”
There was an almost twenty-nine-month lapse between Nicholas’s arrest and his April 1978 trial. Nicholas did not seek a dismissal of the information on the basis of a denial of a speedy trial until moments before the trial was to begin.
Part of the information packet given to the defense in August of 1976 included a statement by Perry, in which he described the gun-wielding driver as having “curly hair.” Nicholas and Rudolph differ in at least one physical attribute: Nicholas might be described as having a receding hairline, whereas his cousin Rudolph has a full head of hair. When the state sought discovery, the defense in its October 1976 reply listed Perry as one of its witnesses but made absolutely no attempt to contact him until March or April of 1978.
The only effort .made to contact Perry occurred when a private detective went to the home of Perry’s parents and interviewed his father. The information packet had listed Perry’s address as his parents’ home. The father told the detective that although Perry had not lived at home for the past two years, he did see his son on an off-and-on basis. Pursuant to the father’s suggestion that he check the city’s hotels, the detective investigated the YMCA, the Gemini Hotel, the Abbott Park, and the Civic View Inn.
The trial justice, in rejecting Nicholas’s speedy-trial claim, described Nicholas’s efforts in this area as “halfhearted.” He also referred to the attempts to locate Perry as lacking “any great exertion or any great amount of diligence.” The docket also discloses that on February 3, 1977, the defense received the so-called twenty-one-day notice, which signifies that the case could be reached any time thereafter. The trial justice commented adversely on the complete lack of effort to secure any kind of statement from Perry and the absence of any attempt to dispose of the case during the summer of 1977. It is obvious from his remarks that the trial justice believed that a speedy trial was the thought furthermost from Nicholas’s mind. The filing of the motion was merely a perfunctory gesture since Nicholas preferred to bank on the lapse of time, hoping that witnesses would disappear or memories would become dim. On the record presented here, we see no reason to fault this conclusion.
An additional oral motion which also immediately preceded the beginning of the trial sought suppression of Coogan’s in-court identification. At the hearing on this motion, Coogan testified that his in-court identification was based upon his observation of the automobile which sped by him on Washington Street. In his description of the driver, Coogan testified that “[h]is hair seemed to be a little bit bald.” The defense sought to suppress the in-court identification by claiming that this description was a complete surprise. The state had furnished the defense with a copy of a report made by Coogan shortly after he returned to the police station following the arrest of Nicholas and his cousin. The defense argues that the state violated its duty of disclosure because the report contained no reference to Nicholas’s hairline. We disagree.
In its motion to produce, the defense sought “all written or recorded verbatim statements” of “those persons whom the State expects to call as witnesses at the trial.” At 1 a. m. on December 1, 1975, Coogan was acting as a police officer, not as a journalist. Not everyone can lay claim to the unique experience of having a 1975 maroon two-door Oldsmobile sedan bear down on him on Washington Street in Providence during the early morning hours. Coogan’s omission in the report is understandable, but Nicholas cannot complain for he received exactly what he asked for. The denial of the suppression motion was amply justified.
The defendant’s appeal is denied and dismissed, the judgment of conviction appealed from is affirmed, and the case is remanded to the Superior Court for further proceedings.
. Perry’s contribution to the defense is extremely speculative. Immediately after the arrest, Nicholas and Rudolph were placed in a lineup. Neither Perry nor his companion could identify either DeVito as being the driver-gunman.
. The information packet reveals that among the items seized following Nicholas’s arrest was a 1975 Oldsmobile two-door maroon sedan. | |
11292648 | STATE v. Vincent POPE | State v. Pope | 1980-05-09 | No. 77-449-C.A. | 781 | 788 | 414 A.2d 781 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. Vincent POPE. | STATE v. Vincent POPE.
No. 77-449-C.A.
Supreme Court of Rhode Island.
May 9, 1980.
Dennis J. Roberts II, Atty. Gen., Kenneth P. Madden, Sp. Asst. Atty. Gen., for plaintiff.
Mann & Roney, Robert B. Mann, Providence, for defendant. | 3381 | 19913 | OPINION
KELLEHER, Justice.
The defendant, Vincent Pope (Pope), was charged in a multicount information with committing the crimes of assault with intent to rob, assault with a dangerous weap on, extortion, and carrying a gun without a license. A Superior Court jury returned guilty verdicts with respect to all four counts. Pope’s motion for a new trial was denied. Thereafter, the trial justice imposed a series of concurrent prison sentences. Pope is before us on an appeal in which he raises a multitude of issues, most of which merit little consideration.
At about 5 a. m. on September 5, 1976, a Providence obstetrician, Dr. John Barrall, while dressed in his “scrub suit,” had left his East Side home and was driving in a westerly direction on Douglas Avenue, headed toward Women & Infants Hospital where he was to minister to the needs of a patient in labor. As the physician neared an entrance ramp that begins at the easterly curb and leads to the southbound lanes of U.S. Interstate Route 95, he struck the rear of a station wagon that had just turned onto the ramp. When the obstetrician alighted from his vehicle to meet with the occupants of the wagon, he was met by the wagon’s driver, who grabbed Dr. Barrall by the throat, demanded $300 as the cost of repairing his car, and repeatedly struck the physician about the side of his head.
Approximately ten minutes later the wagon’s passenger, whom the police later identified as Pope, appeared at the doctor’s side, put a .22 caliber pistol to the physician’s throat, and ordered him to “get the money up.” Pope gave additional emphasis to his demand by discharging the firearm into the air. Doctor Barrall then attempted to search the glove compartment of the car but came up with no cash.
The first officer to arrive at the collision scene observed one man running down the entrance ramp and two others, Pope and Dr. Barrall, at the physician’s vehicle. This officer testified that he found the pistol stuffed between a seat cushion and the “wall of the rear seat.” An examination of the weapon disclosed that it contained five live rounds of ammunition and one empty shell.
Pope conceded that he had carried the pistol on the day in question but denied threatening the obstetrician in any fashion whatsoever. He explained to the jury that in order to avoid being found in possession of the pistol, he had drawn the weapon from his belt; somewhere in the withdrawal process, the gun’s hammer was accidentally pulled back. He thereupon fired the weapon and secreted it inside the vehicle. Pope insisted that he had employed this unorthodox method of securing the gun’s trigger because his right hand was so badly injured in the collision that it was impossible for him to restore the hammer manually to a closed position.
During its cross-examination of Pope, the state sought to impeach his credibility by having him admit to two prior convictions. One conviction occurred in 1958 and involved an assault with a dangerous weapon. The other conviction occurred in 1968, and it concerned a charge of illegal possession of a pistol. Pope now claims that the trial justice erred in allowing this evidence because not only were the two convictions remote in time, but they were also of the same nature as the offenses for which he was being tried in the winter of 1977.
In this jurisdiction, remoteness is the sole crucial factor to be considered by a trial court when an effort is made to impeach a witness’s credibility by evidence of his prior involvement with the law. State v. O'Brien, 412 A.2d 231 (R.I.1980); State v. Bennett, R.I., 405 A.2d 1181 (1979); State v. Lombardi, 113 R.I. 206, 319 A.2d 346 (1974). Remoteness is not, however, measured solely by the passage of time, since a trial court, in the exercise of its discretion, can take into account convictions intervening between the past conviction and the crime for which the defendant is being tried. The factfinder has a right to consider whether one who repeatedly refuses to comply with the law is more likely to ignore the obligation of truthfulness than a law-abiding citizen. See State v. Sands, 76 N.J. 127, 144-145, 386 A.2d 378, 387 (1978).
Here, the assault-with-a-dangerous-weapon charge arose nineteen years before the trial. Pope’s illegal possession of the gun occurred about nine years before the trial and about ten years subsequent to the assault conviction. The trial justice reminded the jury that they were to consider the convictions solely for the purpose of impeachment; in light of what we have just said, we cannot fault the trial justice in his refusal to exclude the assault-with-a-dangerous-weapon conviction.
Pope operated a South Providence nightclub. He attempted to excuse his license-less possession of the pistol by claiming that the weapon provided an extra measure of protection from anyone who might want to rob him of the nightclub’s receipts. According to Pope, at the time of the collision he was headed homeward carrying with him some $370 in cash. The cash represented the night’s receipts at the club.
In rebuttal the prosecution presented a Providence police officer who worked in the detention area at police headquarters. This officer explained that any new “prisoner” entering the detention area is searched, after which all his belongings are taken from him and placed in a bag containing his name; the bag is then placed in a locker. The witness identified a document as a “lockup sheet.” The sheet is dated September 5 and lists the names of eight prisoners. It indicates that Pope occupied “Cell 3,” being on “Hold” for the “C Squad,” and that his “Traps” consisted of “,71<p.” Pope now claims that the trial justice erred when he ruled that the sheet qualified as a business record. The officer testified that he made the entries listed on the sheet as part of his duties, and he also observed that the sheet was kept in the regular course of police business and that the notations occurred simultaneously with the search and seizure.
In State v. Jamgochian, 109 R.I. 46, 49, 280 A.2d 320, 322 (1971), we once again pointed out that although our business-record legislation, G.L.1956 (1969 Reenactment) § 9-19-13, refers only to “civil proceedings,” a record may be admitted into evidence under the common-law exception to the hearsay rule as being an entry made in the regular course of business. In Jamgochian we referred to the holding in State v. Guaraneri, 59 R.I. 173, 177, 194 A. 589, 591 (1937), which laid down the following common-law requirements: (1) it must appear that there was a duty to keep the record in the regular course of business; (2) the person whose duty it was to keep such a record must, if alive, competent, and within the jurisdiction, testify that the entry was made in the regular course of business in his handwriting or under his immediate supervision. The officer touched all the necessary common-law bases.
In essence, Pope’s objections go to the weight to be given to such a document because he points out such factors as the records’ being in pencil rather than in ink, and the officer’s coming to work at 8 a. m., three hours after Pope’s arrest.
Pope also argues that the trial justice should have permitted certain defense witnesses to testify as to why he was carrying a pistol on the morning he encountered Dr. Barrall. The trial justice rejected offers of proof indicating that two defense witnesses were prepared to testify that at one time Pope had testified for the prosecution at a murder trial and since that time had been subject to threats, shootings at his nightclub, and other acts of violence against him and his family. These reprisals, according to Pope, would justify his being armed.
The trial justice’s rejection of the offers of proof is well warranted. The reasons for the pistol’s presence were totally irrelevant. The sole issue on the gun-carrying charge was whether Pope had a license to carry the weapon. His reasons for carrying the pistol were of no concern to the jury. As an aside, the transcript clearly indicates that soon after Pope began his testimony, the jury was made well aware of why he had the gun. He told the jury that his friend had been shot, that a fire bomb had been thrown into his basement, that his guard had been executed, and that various other acts of violence had been committed. Pope claimed that all of these acts were in retribution for his witness-stand appearance. The jury, consequently, was well aware of Pope’s reasons for being armed, but it obviously thought that these events were no excuse for his not having a license.
As the trial was about to begin, Pope’s appointed trial counsel informed the trial justice that Pope had written to the Superior Court’s Presiding Justice, asking that he be afforded the services of a new attorney, for he no longer wanted his present counsel “to represent me in this matter or any other matter.” ■ Pope addressed the court and faulted his counsel because “there was [sic] things that should have been said that hadn’t been said during the bail hearing * * *The trial justice, in rejecting Pope’s request, observed: “Mr. Pope is certainly entitled to effective counsel. He’s not privileged to have counsel of his own choice but merely to have effective counsel and a fair trial.” The trial justice then commented favorably on the quality of service that Pope had received from his present counsel. Pope now claims that the denial of his request amounts to the denial of his right to obtain counsel of his own choice and points to our holding in State v. Dias, 118 R.I. 499, 374 A.2d 1028 (1977), as authority for this proposition.
There is a world of difference between Dias and Pope. Dias was insistent upon retaining private counsel but was forced to accept the services of a member of the Public Defender’s staff, who, incidentally, objected to being an unwilling last-minute substitute for Dias’s private counsel. Pope stands on a different footing. He does not seek the services of private counsel but rather a switch in appointed counsel. His specific choice was a member of the Public Defender’s staff. The Public Defender’s office was representing the driver of the car involved in the collision with Dr. Bar-rail, and in fact Pope’s present counsel was appointed by the Superior Court to avoid any conflict of interest within the Public Defender’s office. We see no validity whatsoever to his claim of denial of his right to counsel of his own choice.
Pope’s appellate counsel has lodged strenuous objection to a portion of the trial justice’s charge wherein he told the jury that it could rely on the pertinent provisions of G.L.1956 (1969 Reenactment) § 11-47-4, which in essence provide that whenever an individual is being tried for committing, or attempting to commit, a crime of violence, the fact that he was armed with a pistol or revolver without a license to carry the same “shall be prima facie evidence of his intention to commit said crime of violence.” The argument is made that this statutory inference is totally irrational and thus deprives Pope of his due-process rights. The simple response to this contention is to point out that at trial no objection was made to this portion of the instruction.
In State v. McGehearty, R.I., 394 A.2d 1348 (1978), we permitted the defendant to raise the constitutional issue for the first time on appeal and, in doing so, might have left the bar with the impression that we had jettisoned our well-established rules which require the raising of a constitutional issue in the first instance at the trial level and which preclude a challenge to the sufficiency of the charge when a defendant has failed to object to the instruction or to request a different one. Nothing could have been further from our minds. In McGehearty it was obvious that at the time the case was tried in the Superior Court, there was some confusion as to the exact impact of the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), on Rhode Island’s long-standing requirement that intoxication was an affirmative defense. Certainly, there was at the time of Pope’s trial no such cloud of uncertainty about what the acceptable procedure was for raising the issue which Pope, at this late date, seeks to bring before us. The constitutional challenge should have been brought by way of an objection to the charge. We see no reason from the record before us to depart from this well-established rule. Thus, he may not challenge the charge at this time. Our refusal to consider this issue is, however, without prejudice to Pope’s attempting to raise the issue in some other appropriate proceeding.
Pope also claims that the trial justice erred when, in connection with the charge of carrying a pistol without a license, he refused to charge the jury that a conviction for the possessory offense could not be sustained if the jury believed that at the time of the collision Pope was carrying the nightclub’s cash receipts. In taking this position, Pope cites a portion of G.L.1956 (1969 Reenactment) § 11-47-9 (1979 Supp.), which provides that the license requirements “shall not apply to * * * moving goods from one place of abode or business to another.” Pope sought to take advantage of the exclusion because, according to him, at the time of the collision he was heading home, carrying “goods,” to wit, his nightclub receipts.
Pope’s request to the trial justice contained a very selective reading of § 11-47-9. Actually, the “goods” exemption afforded by § 11 — 47-9 is applicable to“any person while carrying a pistol unloaded and securely wrapped from the place of purchase to his home or place of business, or in moving goods from one place of abode or business to another.” This exemption means that a license is not required if, while one is moving from one place of residence to another place of residence or transferring his business endeavors from one site to another, there is within the “goods” being transported an unloaded, wrapped firearm. The “goods” referred to in the statute are those items of personal property which will be loaded on the mover’s van once it arrives at one’s front door as a family or individual moves from one address to another address. Here, Pope’s pistol was neither unloaded nor securely wrapped, and the cash he supposedly had does not fall within the meaning of the word “goods” as it is used within the context of § 11-47-9.
The final issue to be considered is Pope’s contention that his constitutional right to be protected from double jeopardy was violated through the convictions on both extortion and assault with intent to rob. In order to determine whether an accused is threatened by being punished twice for the same offense, this court in State ex rel. Scott v. Berberian, 109 R.I. 309, 284 A.2d 590 (1971), adopted the following standard as set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932);
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
The implementation of this test requires a close examination and comparison of the elements of the offenses in question. Extortion is an offense that entails a “verbal threat to place a victim in peril of actual bodily harm, accompanied by an intent to compel that victim to do an act against his will.” State v. Davis, R.I., 384 A.2d 1061, 1064 (1978); G.L.1956 (1969 Re-enactment) § 11-42-2. As we have defined in State v. Baker, 20 R.I. 275, 277, 38 A. 653, 654 (1897), an assault is an “unlawful attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness.” The unsuccessful objective of the assault in this case is robbery, which is defined as the “ ‘felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear.’ ” State v. Reposa, 99 R.I. 147, 149, 206 A.2d 213, 215 (1965), citing 4 Black.Comm. 241.
A compilation of these definitions indicates that in order to prove both extortion and assault with intent to rob in this case, the state had to demonstrate the identical elements of an intentional threat to Dr. Barrall that placed him in fear of actual bodily harm, the purpose of which was to force him to give Pope money. Since proof of no additional fact is required to establish both of these crimes, Pope’s conviction for assault with intent to rob and extortion violated his right to be protected from double jeopardy. State v. Davis, R.I., 384 A.2d 1061 (1978); State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974).
Consequently, as a result of our finding of double jeopardy, the trial justice must make a choice. He imposed a fifteen-year sentence on the assault-with-intent-to-rob count with ten years to be served immediately and the execution of the remaining portion of the sentence to be suspended during a five-year probationary period. Pope received a ten-year sentence on the extortion conviction. On remand, it is the trial justice’s choice which one of these two counts he will dismiss.
The defendant’s appeal is sustained in part and denied in part, the judgment of conviction appealed from is affirmed in part and vacated in part, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
. The trial justice’s admonition as to the purpose of the evidence of prior convictions came during his charge to the jury. In State v. O'Brien, 412 A.2d 231 (R.I. 1980), we once again stressed that at the time the sponsoring party introduces this evidence, the trial court must of its own accord instruct the members of the jury that they must limit their use of this evidence to the assessment of the credibility of the witnesses and that otherwise it has no probative force as proof of any of the elements of the crime charged. Pope now criticizes the trial justice’s failure to so charge the jury at the time his past criminal activity was brought to the jury’s attention. Pope overlooks the fact that nobody, including his trial counsel, reminded the trial justice of this requirement. While the admonition should be given at the time the evidence is received on this record, we perceive no prejudice to Pope even though the trial justice’s comments on the use of Pope’s prior convictions were somewhat belated.
. This confusion was shared by many. Some read the case as a condemnation of all affirmative defenses, while others concluded that Mui-ianey invalidated some, but not all, burden-shifting defenses. Jeffries and Stephan, Defenses, Presumptions, and the Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1340 (1979). The uncertainty was resolved in Patterson v. New York, 432 U.S. 197, 214-15, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281, 294-95 (1977), where the Supreme Court, while specifically discrediting the notion that Muiianey required the state to prove beyond a reasonable doubt any fact affecting the degree of criminal culpability, held that a state could place the burden of proving an affirmative defense on a defendant so long as that burden did not include negating an element of the crime charged. The author of Muiianey, Mr. Justice Powell, in dissenting, characterized the distinction drawn between an “element” and a “defense” as purely “formalistic” and decried the implicit overruling of Muiianey. Id. at 221-25, 97 S.Ct. at 2332-35, 53 L.Ed.2d at 298-301.
. See State v. Duggan, R.I., 414 A.2d 788 (1980). | |
11289801 | CITY OF PROVIDENCE By and Through its WATER SUPPLY BOARD v. PUBLIC UTILITIES COMMISSION et al. | City of Providence ex rel. Water Supply Board v. Public Utilities Commission | 1980-04-29 | No. 78-301-M.P. | 465 | 467 | 414 A.2d 465 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | CITY OF PROVIDENCE By and Through its WATER SUPPLY BOARD v. PUBLIC UTILITIES COMMISSION et al. | CITY OF PROVIDENCE By and Through its WATER SUPPLY BOARD v. PUBLIC UTILITIES COMMISSION et al.
No. 78-301-M.P.
Supreme Court of Rhode Island.
April 29, 1980.
William J. McGair, Providence, for petitioner.
John R. McDermott, Asst. Atty. Gen., Providence, for respondents. | 898 | 5435 | OPINION
DORIS, Justice.
The city of Providence petitioned this court for a writ of certiorari to review a report and order dated August 3, 1978, of the Public Utilities Commission (the commission) regarding an increase in the water rates charged by the Providence Water Supply Board (the board). We issued the writ and heard arguments on two matters:
1. whether the commission has jurisdiction to oversee the rate-making authority of the board, and
2. whether the commission erred in not authorizing a return on the board’s investment in capital facilities.
Because we find that the commission has no jurisdiction over the board’s rate-making determinations, we do not reach the second issue.
This matter arose from a hearing before the commission at which the board sought approval for an increase in its wholesale and retail water rates. Counsel for the board objected to the hearings and moved for a dismissal on the ground that the commission had no jurisdiction to oversee the board’s determination of the water rates. Counsel argued that historically the board had a statutory right to determine its water rates and that the Legislature, by passing a special law in 1967, reaffirmed this right. The commission, relying on two opinions of the attorney general, ruled that the board was a public utility subject to the jurisdiction of the commission and denied the motion to dismiss. In doing so the commission erred.
The uncertainty surrounding the jurisdictional issue arises from the conflict between two acts passed by the Legislature in 1967. In one act, P.L.1967, ch. 156, § 2, the Legislature amended the definition of a public utility to include any association that delivered or furnished water, except that the definition did not include “any public waterworks and water service owned and furnished by any city, [or] town, * * * unless any such city, [or] town, * * * sells water, on a wholesale or retail basis, outside the territorial limits of such city or town * * Id. The Legislature also passed P.L.1967, ch. 162, § 1, which amended the act that had established the board by providing “that in case the city of Providence * * * elects to sell water directly to water users or consumers, the water supply board of the city of Providence * * shall have the right to determine the rate at which said water shall be sold.” Id. Chapter 162 further provided that “[a]ll acts and parts of acts inconsistent with section 1 of this act are hereby repealed.” Id., § 3. The House of Representatives passed chapter 162 on May 12,1967, and passed chapter 156 on May 18, 1967. The Senate passed both acts on May 18, 1967. The governor approved chapter 156 on May 24, 1967, and chapter 162 on May 26, 1967. Assuming that the term “public utility,” as defined by chapter 156, included the Providence Water Supply Board, the issue now confronting us is whether chapter 162 reinvested the board with the authority to determine its water rates. We believe that it did.
To the extent that chapter 156 and chapter 162 confer on two government agencies the responsibility for determining the rate at which the city of Providence may sell its water, they are repugnant to each other. Although this court does not favor repeals by implication, Providence Electric Co. v. Donatelli Building Co., 116 R.I. 340, 344, 356 A.2d 483, 486 (1976), when two acts are irreconcilably repugnant, we will imply a repeal and give effect to the more recently passed act. Berthiaume v. School Committee of Woonsocket, R.I., 397 A.2d 889, 893 (1979). This is particularly true when the more recently enacted law is “more comprehensive and specific than” the older law. Opinion to the Governor, 78 R.I. 144, 149-50, 80 A.2d 165, 168 (1951); see also G.L. 1956 (1970 Reenactment) § 43-3-26.
In the present case we find that chapters 156 and 162 are irreconcilably repugnant— the board and the commission cannot both have the final authority to determine the city’s water rates. Because chapter 162 became effective subsequent to chapter 156 and because its provisions are more specific than those of chapter 156, it is our opinion that any inconsistency between the chapters must be resolved by giving preference to chapter 162. Accordingly, we hold that the provisions of chapter 156 that brought within the jurisdiction of the commission those public waterworks that sell water beyond their territorial limits have been implicitly repealed, as they apply to Providence and its Water Supply Board, by chap ter 162. To hold otherwise would require us to construe chapter 162 as having no effect and serving no useful purpose. We will not attribute to the Legislature an intent to pass such an act. Berthiaume v. School Committee of Woonsocket, R.I., 397 A.2d at 892; Berberian v. Berberian, 109 R.I. 273, 276, 284 A.2d 72, 74 (1971).
The petition for certiorari is granted, the report and order of the Public Utilities Commission is quashed, and the papers are remanded to the Public Utilities Commission with our decision endorsed thereon.
. The Providence Water Supply Board was established by Chapter 1278 of the Public Laws of 1915, and has been amended several times prior to 1967. | |
11287678 | Catherine E. SCHWARZ v. COASTAL RESOURCES MANAGEMENT COUNCIL, State of Rhode Island, et al. | Schwarz v. Coastal Resources Management Council | 1980-03-13 | No. 80-10-M.P. | 190 | 190 | 414 A.2d 190 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | Catherine E. SCHWARZ v. COASTAL RESOURCES MANAGEMENT COUNCIL, State of Rhode Island, et al. | Catherine E. SCHWARZ v. COASTAL RESOURCES MANAGEMENT COUNCIL, State of Rhode Island, et al.
No. 80-10-M.P.
Supreme Court of Rhode Island.
March 13, 1980.
Catherine E. Schwarz, pro se.
Goldman & Biafore, Dennis H. Esposito, Providence, for respondents. | 175 | 1133 | ORDER
Certiorari was denied in this case on February 28, 1980. Petitioner has filed a motion requesting that we reconsider our decision. The petitioner seeks review of a Superior Court ruling affirming a decision of the Coastal Resources Management Council. The Superior Court justice, after noting his limited powers of review in administrative appeals, stated:
"As I indicated earlier, there are few avenues open in view of the statute that governs administrative appeals, and I do not find anything in the record that would authorize the court to grant relief as prayed for by the plaintiff.”
We have thoroughly reexamined the petition for certiorari and accompanying exhibits and we find therein no basis for disturbing the conclusion of the Superior Court justice. Therefore, the motion of petitioner requesting that we reconsider our previous denial of certiorari is denied. | |
11287718 | STATE v. Carol Rohelia AMORIN et al. | State v. Amorin | 1980-03-13 | No. 80-71-C.A. | 191 | 192 | 414 A.2d 191 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. Carol Rohelia AMORIN et al. | STATE v. Carol Rohelia AMORIN et al.
No. 80-71-C.A.
Supreme Court of Rhode Island.
March 13, 1980.
Dennis J. Roberts II, Atty. Gen., Stephen Lichatin III, Spec. Asst. Atty. Gen., for plaintiff.
John F. Cicilline, Charles J. Rogers, Jr., Providence, for defendants. | 73 | 455 | ORDER
The defendants’ objection to the certification is denied. The state’s motion for prior ity assignment is granted and this case is assigned to the May, 1980 calendar for oral argument. | |
11287943 | STATE v. Claire STEVENS et al. | State v. Stevens | 1980-03-20 | No. 79-475-C.A. | 195 | 196 | 414 A.2d 195 | 414 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T16:59:16.696520+00:00 | CAP | STATE v. Claire STEVENS et al. | STATE v. Claire STEVENS et al.
No. 79-475-C.A.
Supreme Court of Rhode Island.
March 20, 1980.
Dennis J. Roberts II, Atty. Gen., Stephen Lichatin III, Spec. Asst. Atty. Gen., Chief, Appellate Division, for plaintiff.
Salvatore L. Romano, Providence, for defendants. | 92 | 601 | ORDER
The state has moved to consolidate the appeals of defendants Stevens, LeBlanc, Desmanas and Jorde. However, since these appeals were docketed here together under a single criminal appeal number, the motion to consolidate is unnecessary. One brief and argument will be sufficient in this case. The motion to consolidate is denied. | |
7348520 | Edward NIELSON v. C & N, INC. | Nielson v. C & N, Inc. | 1996-11-21 | No. 95-236-M.P. | 282 | 282 | 685 A.2d 282 | 685 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T17:00:49.681415+00:00 | CAP | Edward NIELSON v. C & N, INC. | Edward NIELSON v. C & N, INC.
No. 95-236-M.P.
Supreme Court of Rhode Island.
Nov. 21, 1996.
John Harnett, Carl Asprinio, Providence.
Michael D. Lynch, Providence. | 530 | 3206 | ORDER
This ease came before the court for oral argument November 12,1996, pursuant to an order which had directed both parties to appear in order to show cause why the issues raised by the petition for certiorari should not be summarily decided. After hearing the arguments of counsel and examining the briefs filed by the parties, we are of the opinion that cause has not been shown and that the issues raised should be summarily decided.
The petitioner, Edward Nielson, was the President and sole employee of C & N, Inc. when he was injured in a motor vehicle accident on April 10, 1992, allegedly in the course of his employment. The sole issue raised by this petition is whether the Workers’ Compensation Court had jurisdiction over petitioner’s claim for compensation benefits. The Appellate Division determined that it had no jurisdiction over petitioner or C & N, Inc. because the corporation had fewer than three employees at the time of this accident. The corporation was exempt pursuant to the provision of G.L.1956 § 28-29-5. It is further undisputed that C & N, Inc. did not elect to become subject to the act in accordance with § 28-29-8, which provides in pertinent part:
“The election on the part of the employer shall be made by filing with the director a written statement to the effect that he or she accepts the provisions of those chapters, the filing of which statement shall operate to subject the employer to the provisions of those chapters * *
No such written statement was filed by C & N, Inc. with the director. However, C & N, Inc. did purchase a policy purporting to cover workers’ compensation liability through Employers Insurance of Wausau (Wausau). The insurance company does not dispute that it filed a certificate of insurance with the Department of Labor in accordance with § 28-36-12. The petitioner contends that he believed he and the corporation were covered pursuant to the Workers’ Compensation Act.
Both the trial judge and the Appellate Division held that the Workers’ Compensation Court lacked jurisdiction because of the failure of C & N, Inc. to file a written statement electing to submit to the Workers’ Compensation Act pursuant to § 28-29-8. The statute contains mandatory language requiring that “[t]he election shall be made by filing * * * a written statement * *
We have held that the word “shall” connotes an imperative unless the particular context requires a contrary meaning. Brown v. Amaral, 460 A.2d 7, 10 (R.I.1983). Consequently, we are of the opinion that the Appellate Division was correct in holding that it lacked jurisdiction, since the employer had not elected to become subject to the act.
However, in so holding, we wish to point out that we express no opinion in this case concerning remedies that may be available to the petitioner or to C & N, Inc. in another tribunal based upon the policy of insurance issued by Wausau and for which a premium was duly paid.
For the reasons stated, the petition for certiorari is denied. The writ heretofore issued is hereby quashed. | |
9435935 | Pierre DeBOURGKNECHT v. Thomas ROSSI, in his capacity as Tax Assessor for the City of Providence | DeBourgknecht v. Rossi | 2002-06-13 | No. 2001-22-Appeal | 934 | 938 | 798 A.2d 934 | 798 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T17:01:07.217536+00:00 | CAP | Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. | Pierre DeBOURGKNECHT v. Thomas ROSSI, in his capacity as Tax Assessor for the City of Providence. | Pierre DeBOURGKNECHT v. Thomas ROSSI, in his capacity as Tax Assessor for the City of Providence.
No. 2001-22-Appeal.
Supreme Court of Rhode Island.
June 13, 2002.
Timothy T. More, Providence, for Plaintiff.
Richard Riendeau, Providence, for Defendant.
Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. | 1593 | 9820 | OPINION
PER CURIAM.
The plaintiff, Pierre deBourgknecht, appeals from a Superior Court judgment in favor of the defendant, Thomas Rossi, in his capacity as Tax Assessor for the City of Providence. The plaintiff alleges that the 1995 real estate tax assessments on his property were in excess of the property’s full and fair cash value.
The matter came before a single justice of this Court, who ordered the parties to show cause why the appeal should not summarily be decided. After hearing their arguments and considering their legal memoranda, we conclude that cause has not been shown and proceed summarily to decide the appeal.
The plaintiff owns property identified as assessor’s plat 20, lot no. 22, known as the Old Providence Journal Building (lot no. 22), and assessor’s plat 20, lot no. 169, known as the Lapham Building (lot no. 169). In 1987, the revaluation assessments were $3,780,600 for lot no. 22 and $4,449,300 for lot no. 169. In 1992, the assessments were reduced to $2,975,100 for lot no. 22 and $3,728,600 for lot no. 169, and these assessments were carried forward to subsequent years.
In 1994 the plaintiff objected to the 1993 assessments and filed an appeal with the Providence Board of Tax Review. The board reduced the assessment on lot no. 22 from $2,975,100 to $1,032,800 and on lot no. 169 from $3,728,600 to $1,927,000. The reductions were designated for “1 year only.”
In 1995 the parcels were revalued to reflect the 1992 valuations, which were $2,975,100 for lot no. 22 (the Old Providence Journal Building) and $3,728,600 for lot no. 169 (the Lapham Building). The plaintiff objected to these valuations and appealed to the board. The board reduced the valuations to $2,509,000 for lot no. 22 and $3,296,200 for lot no. 169. Thereafter, pursuant to G.L.1956 § 44-5-26, the plaintiff filed the instant complaint in the Superior Court, claiming that the assessments made upon his real estate exceeded the full and fair cash value of each of his two properties.
At a hearing on the taxpayer’s complaint before a Superior Court trial justice sitting without a jury on August 31, 2000 and September 1, 2000, the plaintiff testified that there were substantial changes in the rental income from the Lapham Building from 1994 through 1996. He testified that the building was almost entirely occupied when he purchased it, but that a tenant, Mutual Benefit Life Insurance Company, which had occupied eighty percent of the building, moved out in 1994, and he was not able to find a replacement tenant. The plaintiff also testified that when he purchased the Old Providence Journal Building that it too was almost completely occupied, but that the building occupancy became a “small fraction of full occupancy” as tenants began leaving in 1993 and continued to leave through 1997. The plaintiff testified that he had not made any major physical alterations to the building.
On September 29, 2000, the trial justice issued a written decision concluding that the plaintiff had failed to establish that the assessor had set a value on the subject property that exceeded its full and fair cash value. A judgment was entered in favor of the defendant tax assessor on October 18, 2000, and the plaintiff timely appealed.
On appeal, the plaintiff asserts that the trial justice erred in concluding from the trial evidence that the tax assessments placed upon the plaintiffs two properties by the city tax assessor did not exceed their full and fair cash value. The plaintiff further contends that the doctrine of res judicata precluded the city tax assessor from retrying the fairness of the 1994 valuations litigated and determined by the Providence Board of Tax Review. The plaintiff additionally avers that the 1995 assessments were excessive because the valuations for prior and subsequent years were substantially lower, and there were no value-enhancing changes made to the property. Finally, he contends that the doctrine of administrative finality required that the board grant the same reduction in 1995 that it granted in 1994 because the requested relief was the same and there was no material change in circumstances to the property.
“This Court has consistently held that ‘the findings of fact of a trial justice, sitting without a jury, will be given great weight and will not be disturbed absent a showing that the trial justice overlooked or misconceived material evidence or was otherwise clearly wrong.’ ” Associated Builders & Contractors of Rhode Island, Inc. v. Department of Administration, 787 A.2d 1179, 1184 (R.I.2002) (quoting Technology Investors v. Town of Westerly, 689 A.2d 1060, 1062 (R.I.1997)).
In Nos Limited Partnership v. Booth, 654 A.2d 308, 310 (R.I.1995), this Court outlined the appropriate procedure for challenging a tax assessment:
“In any tax assessment challenge, the assessor must first present his or her conclusion as to fair market value and the procedure used to arrive at such fair market value of the subject property. If the taxpayer challenges either the legality of the assessment or claims that the assessor used an inappropriate fair market value of the subject property, the burden will be on the taxpayer to present evidence of fair market value.”
In the instant case, the defendant tax assessor presented evidence in the form of revaluation cards disclosing that pursuant to the 1987 revaluation, lot no. 22 was assessed at $3,780,600 and lot no. 169 was assessed at $4,449,300. These valuations were reduced in 1992 to $2,975,100 and $3,728,600 respectively. The valuations again were reduced in 1994, but there was no evidence to substantiate that the reduction in value of the property had been attributed to an increase in depreciation of twenty-five percent for one year. The plaintiff failed in this proceeding to provide any appraisals or expert testimony about the value of the property other than the fact that the occupancy rate of the buddings had declined. The trial justice concluded that the 1994 reductions, valuing lot no. 22 at $1,032,800 and lot no. 169 at $1,927,000, were erroneous and were “an act of grace by the board, expressly limited to a single year.” The trial justice found that the depreciation amount was arbitrary and that there was no justification for reducing the valuation. He properly concluded that the board erred in reducing the valuations of the property and that the error should not have been perpetuated.
The plaintiff next contends that because tax appeals were taken in two successive years-1994 and 1995-that the doctrine of res judicata precluded retrying the fairness of the 1994 assessments when that issue had been litigated in the previous year and “there was no evidence indicating that there had been a change of value for the years in question.” Pitney v. State Board of Tax Appeals, 136 N.J.L. 157, 55 A.2d 6, 7 (1947). In the instant case, there had been no previous litigation regarding the assessment, and thus res judicata is not applicable. Although tax assessment history may be relevant, “each annual assessment of property for taxation is a separate act and independent of the assessment of the same property for other years.” Delaware, L & W R. Co. v. City of Hoboken, 16 N.J.Super. 543, 85 A.2d 200, 204 (1951), rev’d on other grounds, 10 N.J. 418, 91 A.2d 739 (1952).
Finally, the plaintiff asserts that the doctrine of administrative finality required that the city tax review board grant the same reduction in 1995 that it granted in 1994 because the requested relief was the same, and there was no material change in circumstances to the property. In Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 808 (R.I.2000), we held:
“Under this doctrine, when an administrative agency receives an application for relief and denies it, a subsequent application for the same relief may not be granted absent a showing of a change in material circumstances during the time between the two applications. * * * This rule applies as long as the outcome sought in each application is substantially similar, * * * even if the two applications each rely on different legal theories. * * * Administrative action is not final, however, if the first decision was invalid.”
The doctrine of administrative finality does not apply to the instant proceeding. The doctrine requires that the initial application for tax relief be denied. In this case, the plaintiffs request for tax relief initially had been granted. Also, the doctrine does not permit action that is invalid to be perpetuated. In this case, the trial justice found that the 1994 reduction in valuation was erroneous and concluded that the error should not have been perpetuated.
In addition to challenging the plaintiffs arguments, the defendant tax assessor asserts that the trial justice erred in denying his motion to amend his answer to include the affirmative defense that the plaintiff had failed to file an account in accordance with § 44r-5-15. The city assessor contends that filing such an account is a condition precedent to maintaining an action in the Superior Court. However, the defendant failed to appeal from the trial justice’s ruling denying his motion, and therefore this issue was not now properly reserved for our consideration and review.
For the reasons above stated, the plaintiffs appeal is denied and dismissed, and the judgment entered in favor of the defendant city tax assessor is affirmed. The papers in this ease are remanded to the Superior Court. |
9411969 | 731 AIRPORT ASSOCIATES, LP et al. v. H & M REALTY ASSOCIATES, LLC by and through its Member, Donald N. LEEF | 731 Airport Associates, LP v. H & M Realty Associates, LLC | 2002-06-18 | No. 2001-83-Appeal | 279 | 284 | 799 A.2d 279 | 799 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T17:00:56.221383+00:00 | CAP | Present: WILLIAMS, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. | 731 AIRPORT ASSOCIATES, LP et al. v. H & M REALTY ASSOCIATES, LLC by and through its Member, Donald N. LEEF. | 731 AIRPORT ASSOCIATES, LP et al. v. H & M REALTY ASSOCIATES, LLC by and through its Member, Donald N. LEEF.
No. 2001-83-Appeal.
Supreme Court of Rhode Island.
June 18, 2002.
Robert D. Wieck/Denean M. Russo, Providence, for Plaintiff.
Rajaram Suryanarayan, Providence, for Defendant.
Present: WILLIAMS, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. | 2161 | 13335 | OPINION
PER CURIAM.
This case came before the Supreme Court for oral argument on May 8, 2002, pursuant to an order directing all parties to appear and show cause why the issues raised by this appeal should not be summarily decided. After hearing the arguments of counsel and considering the memoranda of the parties, we conclude that cause has not been shown. Accordingly, we shall decide the appeal at this time.
Facts and Travel
The plaintiff, 731 Airport Associates, LP, and 747 Airport Associates, LP, through their general partner, Jason’s Realty Corp. (collectively referred to as plaintiff or buyer), filed an action against the defendant, H & M Realty Associates, LLC by and through its Member, Donald N. Leef (defendant or seller), asserting a claim for specific performance and breach of contract arising from an aborted sale of property owned by seller and located on Airport Road and Roseland Avenue (property) in the City of Warwick. This dispute arose from negotiations between the parties that commenced in March 2000 and terminated several months later by the sale of the property to a third party. In May 2000, buyer submitted an offer to purchase the property for $1,060,000 and defendant, through Donald N. Leef, submitted a counteroffer of $1,100,000, both of which were rejected. The trial justice found that further negotiations between the parties resulted in an oral agreement to sell the property. However, this agreement was not confirmed by a writing sufficient to bind the parties. The defendant’s counsel, Nadeau & Simmons (Nadeau), through attorney James L. Truslow (Trus-low), undertook the preparation of a complex purchase and sale agreement that underwent several amendments, culminating in two duplicate originals of a “final agreement” in October 2000. Although characterized as final, buyer has conceded further changes were necessary. The agreement was forwarded to buyer by Truslow and included instructions for buyer to sign and return the documents at plaintiffs earliest convenience. However, the cover letter did not contain reservation language declaring that the agreement was subject to approval by seller, a limitation that had been included in the previous drafts. At some point between October 6 and October 10, 2000, buyer submitted a check to Nadeau in the amount of $5,000 that was accepted by seller, but was neither deposited nor cashed. On October 13, 2000, buyer appeared at Nadeau’s offices ready and willing to close the transaction, but seller refused to sign any of the' transactional documents claiming that he was not bound to perform and, in the event that a better offer was made, he intended to accept the higher offer. Negotiations continued between buyer and seller through October, although the deposit check in the amount of $5,000 was returned to buyer on October 20, 2000. ' The seller entered into a purchase and sale agreement with the Rhode Island Airport Corporation for the sale price of $1,100,000 on November 29, 2000.
On November 8, 2000, buyer commenced this action for specific performance and recorded a notice of lis pendens in the land evidence records of the City of Warwick. The seller filed a motion to quash the lis pendens and asserted a counterclaim for slander of title. At the conclusion of the plaintiffs case in a nonjury trial, the trial justice granted seller’s motion to dismiss pursuant to Rule 52 of the Superior Court Rules of Civil Procedure. The judgment and order quashing the Us pendens was entered in the Superior Court on January 18, 2001. The buyer appealed and declared in the notice of appeal that a copy of the transcript would be ordered. However, an amended notice of appeal indicating that the transcript would not be ordered subsequently was filed.
On appeal, buyer assigns as error the findings of the trial justice that no binding contract existed between the parties and that Truslow lacked apparent authority to contract on behalf of seller. The seller maintains that the trial justice did not err and further argues that buyer’s failure to comply with the Supreme Court Rules of Appellate Procedure by failing to provide the trial transcript is fatal to buyer’s appeal.
Failure to Order Transcript
The seller argues that plaintiffs failure to order the trial transcript precludes a meaningful review of the testimony upon which the trial justice based her decision. The plaintiff maintains that it was not required to provide a transcript because this appeal is limited to questions of law. The plaintiff has indicated in its filings with this Court that buyer “is not challenging the trial court’s discretionary factual findings.” Rather, this appeal is limited to “the trial court’s application of the pertinent law to those facts.” The defendant suggests that in the absence of a transcript it is impossible for this Court to determine whether the trial justice overlooked or misconceived the evidence or whether she applied the correct rule of law to the facts as she found them.
The deliberate decision to prosecute an appeal without providing the Court with a transcript of the proceedings in the trial court is risky business. Unless the appeal is limited to a challenge to rulings of law that appear sufficiently on the record and the party accepts the findings of the trial justice as correct, the appeal must fail. DePetrillo v. Coffey, 118 R.I. 519, 521 n. 1, 376 A.2d 317, 318 n. 1 (1977) (citing Sormanti v. Deacutis, 77 R.I. 507, 511, 77 A.2d 919, 922 (1951)). In this case, the trial justice found that no enforceable contract existed between the parties and that Truslow did not have apparent authority to bind the seller to a transaction with plaintiff. She also found that the parties specifically waived executing a letter of intent that included the terms of the sale. Although several draft agreements containing the essential terms of the sale were prepared, the trial justice concluded that seller intended only to be bound by an executed purchase and sales agreement and never agreed to the transaction in writing. On appeal, buyer challenges these conclusions and alleges the trial justice misapplied the law to the facts as she found them. The bench decision in this case is detailed and lengthy and encompasses twenty-five transcript pages. In light of plaintiffs representation that it accepts the findings of fact by the trial justice, we are satisfied that the appeal may go forward.
Apparent Authority
The buyer argues that Truslow possessed the apparent authority to bind the seller to a contract that buyer claims existed between the parties. Apparent authority to contract on behalf of a principal “arises from the principal’s manifestation of such authority to the [third party].” Menard & Co. Masonry Building Contractors v. Marshall Building Systems, Inc., 539 A.2d 523, 526 (R.I.1988). Such apparent authority can come from “indicia of authority given by the principal to the agent” and does not have to be direct communication to the third person. Id. Additionally, the third party with whom the agent is dealing must “believe that the agent has the authority to bind its principal to the contract.” Id. We are satisfied that based upon the findings of the trial justice, seller did not vest his attorney with apparent authority sufficient to bind him to an agreement that seller never signed. The trial justice specifically noted that buyer and seller were represented by experienced and sophisticated businessmen who were continually engaged in negotiations relative to the sale of this parcel, notwithstanding the oral agreement, and, further, that the parties specifically waived the execution of a letter of intent. Additionally, from the language of Truslow’s cover letters to buyer, the trial justice found that the agreement was subject to seller’s approval. The plaintiff has failed to demonstrate that buyer’s subjective belief that Truslow was vested with authority to bind his client to the purchase and sales agreement was reasonable. The trial justice found that Truslow’s role was merely to draft the agreement and not to engage in negotiations with the parties. Further, the fact that buyer’s representative directly communicated to seller by e-mail and engaged in further negotiations after the so-called final agreement was delivered to buyer demonstrates, as the trial justice found, that seller’s approval was necessary for execution of the agreement. Accordingly, we are satisfied that the trial justice did not err in concluding that Truslow lacked apparent authority to bind the seller and that seller did not intend to be bound absent an executed contract.
Statute of Frauds
The plaintiff submits to this Court that the trial justice erred when she found that no enforceable agreement existed between the parties and that writings prepared by defendant and defendant’s counsel did not satisfy the statute of frauds. The plaintiff alleges that defendant’s oral agreement to the essential terms of the transaction followed by communications from defendant’s attorney and defendant’s own e-mail transmission to a representative of plaintiff satisfies the statute of frauds.
General Laws 1956 § 9-1-4, Rhode Island’s statute of frauds, provides in relevant part:
“No action shall be brought:
(1) Whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year;
(6) * * * unless the promise or agreement upon which the action shall be brought, or some note or memo- raridum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him or her thereunto lawfully authorized.”
The buyer argues that the duplicate originals of the so-called “final agreement” forwarded to plaintiff from Truslow and the cover letters that accompanied Truslow’s communications signify the seller’s intent to be bound by the agreement. The trial justice found that no writing from Truslow suggested that seller agreed to the terms of the sale or intended to be bound absent seller’s signature. She further found that the amendments to the draft agreements, although relatively minor, “reveal the complexity of the transaction and explain why the terms needed to be reduced to writing.” A contract exists sufficient to satisfy the statute of frauds “when each party has manifested an objective intent to promise or be bound.” UXB Sand & Gravel, Inc. v. Rosenfeld Concrete Corp., 641 A.2d 76, 79 (R.I.1994). Significantly, the trial justice concluded that buyer did not forward an executed agreement to Truslow, that the purchase and sales agreement was not signed by either party, that a deposit of $5,000 was delivered to seller but never deposited, that no closing date was ever agreed upon by the parties and certain items that would have been required before the closing never were provided to buyer. Accordingly, the trial justice concluded that the parties reached a preliminary oral agreement but that certain terms remained disputed and the agreement was not memorialized by a writing sufficient to overcome the statute of frauds. We discern no error in this holding.
It is well settled that a contract for the sale of land need not be in writing to satisfy the statute of frauds as long as there is a memorandum that contains “the substance of the contract or agreement,” but need not include all of the particulars. Greensleeves, Inc. v. Smiley, 694 A.2d 714, 716 (R.I.1997) (quoting Durepo v. May, 73 R.I. 71, 76, 54 A.2d 15, 18-19 (1947)). The trial justice found that seller never agreed to the terms of the contract and, in fact, refused to do so apparently aware that “a third party might offer him a more attractive deal.” Thus, accepting these findings as true, as we must, we are satisfied that this transaction remained in the negotiation stage. Accordingly, we conclude that the trial justice did not err in finding that there was no meeting of the minds in this case and that plaintiff failed to prove that seller manifested an objective intent to be bound in the absencé of an executed written agreement.
Finally, the plaintiff alleges that an email message from seller to buyer’s representative, apparently in response to further negotiations by the parties in which seller declares that buyer is “changing the deal your dad and I had * * does not amount to a writing sufficient to satisfy the statute of frauds. Indeed, the trial justice determined that this e-mail was evidence that the parties did not have a binding ■ agreement, but rather a transaction “that evolved and evolved and changed and changed, and was never finalized * * *.” We agree with this finding and discern no error on the part of the trial justice in reaching this conclusion.
Conclusion
For the reasons stated herein, the buyer’s appeal is denied and dismissed and the Superior Court’s judgment is affirmed. The papers in this case may be remanded to the Superior Court. |
7348002 | STATE v. Thomas J. McDOWELL | State v. McDowell | 1996-10-29 | No. 94-688-CA | 252 | 258 | 685 A.2d 252 | 685 | West's Atlantic Reporter, Second Series | Supreme Court of Rhode Island | Rhode Island | 2021-08-10T17:00:49.681415+00:00 | CAP | MURRAY, J., did not participate. | STATE v. Thomas J. McDOWELL. | STATE v. Thomas J. McDOWELL.
No. 94-688-CA.
Supreme Court of Rhode Island.
Oct. 29, 1996.
Jane McSoley, Asst. Attorney General, Terrence Donnelly and Aaron Weisman, Providence, for Plaintiff.
Catherine Gibran, Asst. Public Defender and Paula Rosin, Asst. Public Defender, for Defendant. | 3706 | 23439 | OPINION
LEDERBERG, Justice.
This case came before the Supreme Court on the appeal of the defendant, Thomas J. McDowell, from a judgment of conviction of nine counts of second-degree child molestation. The defendant was sentenced to concurrent terms of thirty years on each count, ten years to serve and twenty years suspended with probation. On appeal, the defendant argued that he was denied his right to present a full and fair defense because the trial justice erroneously excluded the testimony of three witnesses and abused her discretion by removing a juror for cause and by exempting the mother of a complaining witness from the court’s sequestration order. For the reasons stated below, we deny and dismiss the appeal. A summary follows with additional facts presented as necessary in the analysis of the legal issues.
Facts and Procedural History
In February 1989, defendant lived in West Greenwich, Rhode Island, with his wife, Elizabeth McDowell, and their two children, ten-year-old Mandy and one-year-old Joshua. The defendant and his wife worked weekend evenings and often hired babysitters, whom we shall refer to as HM, CM, RM, and KS. Over time, HM, CM, and RM became frequent visitors to the McDowell home even at times when their babysitting services were not required.
On the morning of February 12, 1989, RM told her stepmother, Cheryl Morgan, that she had slept at the McDowell house the previous night where she had been awakened by defendant, who was reaching under her clothing to touch her breasts and buttocks. Later that day, RM related the same account to her mother, Alice Morgan, who then accompanied her daughter to the Hope Valley State Police Barracks, where RM gave a statement detailing defendant’s alleged sexual contact with her.
Meanwhile, Cheryl Morgan questioned her then-six-year-old-daughter HL, who also spent considerable time at the McDowell home, about whether defendant had ever touched her improperly. When HL indicated that defendant had engaged in such behavior, Cheryl Morgan took her daughter to the State Police Barracks, where HL recounted incidents of sexual contact by defendant. Shortly afterward, CM, HM, and KS came forward with their own allegations. All three girls gave statements to the State Police in which they claimed that defendant had in the past touched their breasts and/or buttocks.
On May 12, 1989, August 4, 1989, and September 14, 1989, defendant was charged in two informations and one indictment with nine counts of second-degree child molestation and one count of first-degree child molestation, in violation of G.L.1956 §§ 11-37-8.1 through 11-37-8.4. On November 1,1989, the trial justice ordered the cases consolidated for trial. During the trial, the trial justice granted defendant’s motion for a judgment of acquittal on one count of second-degree child molestation and on the first-degree count, amending the latter charge to the lesser included offense of second-degree child molestation.
A jury found defendant guilty of nine counts of second-degree child molestation, following which verdict defendant was sentenced to thirty years on each count, twelve years to serve and eighteen years suspended with probation. On February 17, 1993, however, this Court reversed the judgment of conviction and remanded the case for a new trial because testimony by an alleged victim of an uncharged sexual assault by defendant was erroneously admitted into evidence and testimony by defendant’s son was erroneously excluded. State v. McDowell, 620 A.2d 94 (R.I.1993).
The case was heard by a second jury over several days in February 1994. At trial HM, CM, and RM acknowledged that with the exception of the conduct with which he was charged, defendant was “nice” to them. Each of the three girls testified, however, that over time defendant’s behavior took on increasingly sexual overtones and eventually culminated in sexual contact. Babysitter KS testified that when she babysat at the McDo-wells one evening, upon his return home, defendant touched her breasts while telling her she was “beautiful and sexy,” and HL testified that defendant had touched her genital area on several occasions and that defendant had placed her hand on his own genitalia. The defendant’s wife, several other relatives, and a former babysitter, Jennifer Vucci (Vucci), presented testimony on defendant’s behalf.
On February 25, 1994, the jury returned guilty verdicts on all nine counts of second-degree child molestation. On March 8,1994, the trial justice denied defendant’s motion for a new trial. Following his sentencing on April 21, 1994, defendant filed this appeal pursuant to G.L.1956 § 9-24-32.
Trial Justice’s Removal of a Juror for Cause
On February 22,1994, after both parties declared themselves satisfied with the composition of the jury, a thirteen-member panel was sworn in and the trial proceeded. On February 23, 1994, at the conclusion of testimony by KS, the state rested its case. At that point, juror No. 106, Mark Ferri (Ferri), informed the court that dining KS’s testimony, he recognized for the first time the name of defense witness Vucci and suspected that he may have worked with Vucci’s father approximately five or six years previously. The prosecutor questioned Ferri concerning whether he would have a problem evaluating Vucci’s testimony fairly and impartially if Vucci were called to testify by the defense. At the conclusion of his examination, the prosecutor advised the court that he saw insufficient reason to excuse Ferri for cause, and Ferri remained on the jury.
Following closing arguments but before the jury was instructed, the state moved to strike Ferri for cause, pursuant to Rule 24(c) of the Superior Court Rules of Criminal Procedure. The prosecutor argued that circumstances had changed since Ferri first came forward. Specifically, the state contended that Vucci had given testimony not provided by the defense in discovery, that defense counsel had made Vucci the focal point of his closing argument, that Vucci had aligned herself in an obvious manner with the defense (sitting with defendant’s family at trial), and that Vucci had “stormed out” of the courtroom during the state’s closing argument. The prosecutor asserted that, given the unanticipated importance of Vucci’s testimony and the equivocation expressed by Ferri when the trial justice inquired whether he could evaluate Vucci’s testimony impartially, it would be unfair to allow the risk that Ferri would be prejudiced against the state. The defendant objected to the state’s request and argued that granting the motion would effectively allow the state to choose a jury after the close of evidence. The trial justice granted the state’s motion and excused Ferri for cause, observing that “defendant’s constitutional right to have twelve jurors deliberate this case will be retained and preserved.” On appeal, defendant argued that the trial justice abused her discretion by removing Ferri because no legitimate cause for removal existed.
In respect to jurors, Rule 24(c) provides that “the court for cause may excuse any of them from service provided the number of jurors is not reduced to less than twelve.” Rule 24(a), which governs the examination of prospective jurors, suggests that grounds for removal for cause exist when a “juror is related to a party, or has any interest in the case, or has expressed or formed an opinion or is sensible of any bias or prejudice therein.” Accord G.L.1956 § 9-10-14. “[I]t is well-settled in this jurisdiction that the issue of whether a juror is disqualified due to bias, prejudice or interest is left to the discretion of the trial justice.” State v. Berberian, 118 R.I. 413, 419, 374 A.2d 778, 781 (1977).
In the instant case, the trial justice correctly noted that Ferri was, at best, ambivalent about his ability to consider Vucci’s testimony without bias. Our own review of the record revealed substantial uncertainty in Fern’s answers to questions concerning his impartiality. For example, when asked whether he would have any problem evaluating Vucci’s credibility fairly, Ferri responded:
“It might if, you know, ‘cuz I know Mike so I don’t know, you know, being his daughter, it might, you know, I don’t know. You know. To be — * * * — to be fair, it would be hard to listen to her up here and knowing her father, you know, I have known him, it’s not like I don’t know him. I know him. But to make a decision, it might — I don’t know. I don’t know. I hate to get through here — if she did come here, I don’t know if she would — to hear it, and then in my mind, change while I’m over there — You know what I’m trying to say?”
Such equivocation by Ferri clearly supported a finding of bias and thereby provided a legitimate cause for removal, pursuant to Rule 24(c). Moreover, our review of the record revealed that in the course of the trial Vucci’s testimony became more critical as defense counsel made repeated references to Vucci. In fact, the defense concluded by asking the jury to “look at [defendant] partially through the eyes of Jennifer Vucci.” Thus, given the significance of Vueci’s testimony and Ferri’s dubious ability to assess Vucci’s testimony impartially, the trial justice did not abuse her discretion in excusing Fer-ri for cause.
The defendant clearly had the indisputable right to be tried by twelve impartial jurors, but he did not have the right to be tried by any particular juror. Because defendant’s case was ultimately deliberated by a panel of twelve jurors, defendant was afforded the right to trial by an impartial jury.
Trial Justice’s Exclusion of Testimony by Defense Witnesses
The theory pursued by the defense at trial was that a group of troubled girls from dysfunctional homes had conspired to fabricate the charges against defendant in order to garner support and sympathy from their own families. On appeal, defendant argued that the trial justice improperly excluded or restricted the testimony of three defense witnesses who would have presented evidence probative of the complainants’ motivation for making false allegations against him. The defendant contended that he was thus denied his constitutional right to present a full and fair defense. We address the admissibility of the testimony of each of the witnesses separately.
Joan Harris
In pretrial discovery defendant submitted that Joan Harris (Harris), defendant’s next-door neighbor, would testify to the “dysfunctional family situations” of the complaining witnesses, relying on her “observations as a neighbor,” her “involvement in the community,” and her “numerous conversations” with Cheryl Morgan. The state objected to the admission of Harris’s testimony, contending that her opinions on the dysfunction of the victims’ home lives were irrelevant and were not based on personal knowledge. The trial justice found that defendant had failed to establish that Harris had personal knowledge of the complainants’ family situations and excluded Harris’s testimony.
Rule 602 of the Rhode Island Rules of Evidence provides that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” The trial justice has considerable discretion in determining whether a witness possesses the requisite personal knowledge, and this Court will not disturb a trial justice’s ruling on such a question absent a clear abuse of that discretion. State v. Ranieri, 686 A.2d 1094, 1098-99 (R.I.1991).
Our review of the record revealed an acknowledgment by defendant that Harris could not detail the times and the substance of specific conversations with Cheryl Morgan but would testify on the basis of a “general ongoing experience, an exchange of information” between herself and Cheryl Morgan. At a pretrial hearing, defendant further conceded that with one exception Harris could not testify to any specific incidents involving the complainants and their families but rather to “incidents of basic dysfunction.” Moreover, the one specific incident that Harris allegedly witnessed was itself an observation based on hearsay. Thus, the trial justice did not abuse her discretion by excluding Harris’s testimony on the basis of Harris’s lack of personal knowledge.
Jennifer Vucci
The trial justice restricted Vucei’s comments on the complainants in this case to statements “based on personal observation or experience.” Because of that restriction defendant was unable to explore conversations that Vucci had had with RM and CM about problems in their respective homes. On appeal, defendant argued that he had been thereby precluded from eliciting information probative of the complainants’ motivation for making false accusations against him.
It is our conclusion that the trial justice properly excluded evidence that was based on “unfounded opinion or hearsay statements.” Moreover, our review of the record revealed that the trial justice granted defendant extensive latitude in his examination of Vucci, allowing testimony about her relationship with the complainants, her observations of defendant’s treatment of the complainants, and CM’s home life. We are persuaded that Vucci’s testimony regarding CM’s family life, as well as evidence elicited from RM on cross-examination concerning RM’s own difficulties at home, negates any claim that defendant was prejudiced by the restriction of Vucci’s testimony.
Ira Gross, PhD.
The defendant argued that his strategy entailed an attempt to establish, through the expert psychological testimony of Ira Gross, Ph.D. (Gross), a nexus between the instability in the complainants’ families and their motivation to fabricate false accusations against defendant. Prior to trial, however, the state filed a motion in limine in respect to Gross’s proposed testimony, and the matter was heard on voir dire by the trial justice.
At the voir dire hearing, Gross acknowledged that he had never spoken with defendant or with any of the complaining witnesses, family members, police officers, or counselors. Gross testified that his preparation for trial consisted solely of reading witness statements and the trial transcript of defendant’s first trial. Relying solely on his review of those materials, Gross hypothesized that the complainants’ allegations were the product of peer pressure and difficulty on the complainants’ part in distinguishing their own experiences from those of their peers. He further posited that the accusations were rooted in the unstable home lives of the complainants, who looked to defendant for the emotional support lacking in their own families and then made false allegations against him in order to win attention and support in their own homes.
In a comprehensive bench decision, the trial justice granted the state’s motion in limine and barred Gross from testifying. The trial justice ruled that Gross’s testimony constituted “inappropriate subject matter for opinion testimony” under Rule 702 of the Rhode Island Rules of Evidence. Rule 702 provides that:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.”
In determining the admissibility of expert testimony pursuant to Rule 702, the trial justice considers “whether the subject matter is one for which expert testimony is appropriate.” State v. Morel, 676 A.2d 1347, 1355 (R.I.1996) (citing State v. Wheeler, 496 A.2d 1382 (R.I.1985)).
This Court has held that testimony assessing the trustworthiness of witnesses constitutes inappropriate subject matter for expert testimony because jurors are “perfectly capable of assessing the witness’ credibility by weighing the inconsistencies and deficiencies elicited in cross-examination.” State v. Porraro, 121 R.I. 882, 404 A.2d 465, 471 (1979). Because the assessment of a witness’s credibility is not beyond the ken of the jury, the trial justice acts within his or her discretion in excluding expert testimony on this subject. Id. We have also noted that “there is a fine line between offering a witness to impeach a second witness’ credibility, and offering a witness to opine that a second witness is not credible.” State v. Tavares, 590 A.2d 867, 870 (R.I.1991). Expert testimony that falls into the latter category is inadmissible. Id. The trial justice concluded that “[s]trip[ped] to its core, Dr. Gross’ testimony is pure opinion as to the credibility of the victims in this ease” and, as such, “fits squarely within this forbidden territory.” Moreover, the trial justice was
“not convinced that opinions that [Gross] seems to profer [sic] in this case have a reliable basis in the knowledge and experience of his discipline or in fact. * * * I find no evidence that this methodology has been employed or accepted in the psychological community. Dr. Gross has never employed this approach before or written about it ever. He has never testified as an expert in a Court of law before a jury, about [a] sexual assault victim’s credibility or the reliability of their statements of abuse, based on their prior-recorded statements alone and without benefit of the personal interview or observations. * * * In addition, [Gross] had the [sic ] difficult time articulating the record facts and statements on which he based his opinions and when pressed, on many occasions, conceded that the underlying facts and data could be inaccurate.”
It is well settled that the determination of the admissibility of expert testimony rests within the discretion of the trial justice, and this Court will not disturb a trial justice’s finding on the admissibility of expert testimony absent an abuse of that discretion. State v. Collins, 679 A.2d 862, 867 (R.I.1996). We are of the opinion that on the facts of this case the trial justice clearly acted within her discretion in excluding Gross’s testimony as improper subject matter for expert testimony-
Exemption of Cheryl Morgan from the Court’s Sequestration Order
Prior to trial, the trial justice granted defendant’s motion to sequester the state’s witnesses, with the exception of allowing Cheryl Morgan, the mother of eleven-year-old HL, to remain in the courtroom during HL’s testimony. Because Cheryl Morgan was herself a witness for the state, defendant requested that she be required to testify before HL, in order to avoid “a witness who has not yet testified listening to the testimony of another witness.” The trial justice was “not inclined to dictate the order of testimony” and instead ordered that Cheryl Morgan be excluded from the courtroom, unless the state was willing to call her to the stand before calling her daughter.
The state protested that defendant had failed to demonstrate that he would suffer any prejudice should Cheryl Morgan remain in the courtroom and testify after her daughter. The state contended that the testimony of the two witnesses would be less effective if Cheryl Morgan’s testimony were presented first and argued that defendant could suffer harm only if Cheryl Morgan were to tailor her testimony to that of her daughter. The state asserted that defendant was protected against this “remote” possibility by the existence of Cheryl Morgan’s police statement and her testimony from defendant’s first trial, both of which could be used for impeachment purposes. The trial justice agreed that there was no significant risk of prejudice to defendant if Cheryl Morgan remained in the courtroom during HL’s testimony and before her own.
Several days later, the trial justice, citing G.L.1956 § 12-28-9, ruled that Cheryl Morgan would be allowed to remain in the courtroom while HL testified. Section 12-28-9 is intended to provide child victims and witnesses “with additional rights and protection during their involvement with the criminal justice system.” The relevant portion of the statute provides that child victims of felony offenses shall have the right:
“(2) To be accompanied at all investigative and judicial proceedings by a relative, guardian, or other person who will contribute to the child’s sense of well being; unless it is determined by the party conducting the proceeding that the presence of the particular person would substantially impede the investigation or prosecution of the ease;
“(3) To have all investigative and judicial proceedings in which the child’s participation is required arranged so as to minimize the time when the child must be present;
“(4) To be permitted to testify at all judicial proceedings in the manner which will be least traumatic to the child, consistent with the rights of the defendant.” Section 12-28-9.
The trial justice found that the statute created a presumption that HL had the right to be accompanied by her mother at trial, unless the court determined that the mother’s presence would substantially impede the prosecution of the case or infringe upon defendant’s rights. The trial justice determined that it was unlikely that Cheryl Morgan would tailor her testimony to that of her daughter and that, in any event, Cheryl Morgan’s prior testimony was available for impeachment purposes. The trial justice further concluded that defendant had failed to demonstrate that allowing Cheryl Morgan to remain in the courtroom during HL’s testimony would prejudice defendant, regardless of which of the two witnesses testified first. Consequently, the trial justice ruled that Cheryl Morgan could remain in the courtroom while HL testified, with the proviso that she could not visibly vouch for her daughter’s credibility while in the courtroom or discuss HL’s testimony with anyone else. In light of the statute’s mandate that the court minimize the time that a child’s presence may be required, the trial justice declined to hold an in-camera examination of HL. On appeal, defendant argued that the trial justice abused her discretion and prejudiced defendant by allowing Cheryl Morgan to remain in the courtroom during her daughter’s testimony.
It is well settled that the decision to exclude witnesses from a courtroom during testimony at a trial lies within the sound discretion of the trial justice. On review, this Court will not disturb the trial justice’s ruling on this matter, absent a clear abuse of discretion. State v. Lassor, 555 A.2d 339, 351 (R.I.1989); State v. Rudacevsky, 446 A.2d 738, 740 (R.I.1982); State v. Mathias, 423 A.2d 484, 486 (R.I.1980).
Our thorough review of the record revealed that the trial justice complied with the statutory provisions properly and considered the statutory rights of the child victim, the potential impact on the prosecution of the case, and the likelihood of prejudice to the defendant before exempting Cheryl Morgan from the court’s sequestration order. Because there was no abuse of discretion, the trial justice’s ruling will not be disturbed.
In summary, then, we deny and dismiss the defendant’s appeal and affirm the judgment of the Superior Court, to which we return the papers in the case.
MURRAY, J., did not participate. |
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