State v. Mancini

• Decision Date: 10 March 1971
• Docket Number: No. 802-E,802-E
• Citation: 108 R.I. 261,274 A.2d 742
• Court: Rhode Island Supreme Court
• Parties: STATE v. Alexander MANCINI. x. &c.

Page 742

274 A.2d 742

108 R.I. 261

STATE v. Alexander MANCINI.

No. 802-Ex. &c.

Supreme Court of Rhode Island.

March 10, 1971.

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for plaintiff

Bevilacqua & Cicilline, Providence, for defendant.

OPINION

JOSLIN, Justice.

Alexander Mancini was tried and convicted by a jury in the Superior Court on an indictment which charged that on February 18, 1968, by verbal communication he maliciously threatened injury to the property of Harold Anderson and Michael Muksian with intent to extort money in violation of the laws of this state. ¹ The case is here on Mancini's bill of exceptions.

The testimony adduced at the trial discloses that in November 1967 the El Rio, a nightclub located in Providence, began to be plagued by disturbances. Persons were assaulted, Fights occurred, tables were tipped over, and chairs, were thrown. When the disturbances continued with increasing frequency and business began to fall off, the owners complained to the police. While there was no testimonial evidence that Mancini actively participated in any of the disorders, there is evidence that he knew some of the people involved.

The disturbances culminated on February 18, 1968, with an assault on Ernest Grasso who had been employed at the club as a part-time bartender for almost 17 years. That afternoon Grasso was serving customers at one end of the bar when defendant, ostensibly annoyed because he was not promptly served, threw an ashtray in his direction. The two exchanged words, and then defendant jumped over the bar. In the altercation which followed Grasso's nose was cut, his eyeglasses knocked off, his eye blackened, his shirt ripped, and his wristwatch broken. At one point during the scuffle Mancini broke a bottle of Guggenheimer whiskey on the floor and then, broken bottle in hand, warned Grasso that he would 'get' him if he called the police. Notwithstanding, the police were called and Mancini was arrested and taken to the police station. Shortly thereafter Grasso left the club and went to his own home to clean up and to change his clothes. While there he received a telephone call from Muksian, one of the two owners of the club, as a result of which he accompanied Muksian to the police station. On arrival he told a police captain that he was 'drop-ping the charges' and wanted 'Mancini released.' The police complied. Mancini was released and returned to the club with Grasso and Muksian. The next day Grasso voluntarily, and without explanation, terminated his employment.

The sequel to the Grasso incident occurred at the club that night when Anderson, the other owner of the club, was approached by Mancini and asked whether he had talked to his partner. He answered 'No.' Then Mancini said 'well, for $100 a week you can stop all these fights.' When Anderson replied 'I am not going to' and started to walk away, Mancini said 'Wait a minute, you're getting excited. If you have any trouble you can come to see Alex.' Anderson responded that he 'wasn't going to pay anybody a quarter' whereupon Mancini 'grabbed' him by the shirt. At that point police detectives, who were on the premises, intervened and arrested Mancini. Since his arrest there have been to disturbances at the El Rio.

Mancini's bill of exceptions contains more than fifty separate exceptions. They have been briefed and argued under ten separate issues. The first issue concerns testimony ² that disturbances occurred at the club between November 1967 and February 18, 1968. Mancini considers that testimony as though it were an accusation that he was responsible for those disturbances, and as if it were evidence that he were guilty of having committed crimes independent of and unconnected with the offense of extortion on which he was being tried. Evidence of that kind, he claims, was prejudicially immaterial because it furnished the foundation for an inference that a person who would provoke those kinds of disorders would be likely to commit the offense charged, and he argues that such evidence should not have been allowed to aid in his conviction.

That argument misconceives the purpose for which the evidence of the prior disturbance was proffered. Under our form of statute proof of a threat by means of which money or something of value is to be obtained is the essential element of the offense of extortion. State v. McInnes, (Fla.) 153 So.2d 854; Commonwealth v. Snow, 269 Mass. 598, 602, 169 N.E. 542, 543; 3 Wharton, Criminal Law & Procedure, § 1398 at 796. In determining whether a threat of this kind was made the concern is not so much with the particular words used as it is with whether their natural purport and effect considered contextually was to convey a threat. People v. Thompson, 97 N.Y. 313, 318. And in resolving that issue it is proper to receive, but with caution, evidence of any circumstance even if criminal in nature provided it is connected with the offense charged in such a way that it tends either to establish an intent, motive, plan, design or scheme. See State v. Colangelo,55 R.I. 170, 173-174, 179 A. 147, 149.

When we apply these considerations to the record in this case, we are forced to conclude that the prior disturbances were significant circumstances which were appropriate to explain and to give meaning and relevance to Mancini's alleged statements that 'Well, for $100 a week you can stop all these fights' and that in the event of trouble 'you can come see Alex.' They were available as evidence to assist in ascertaining whether the purport and natural effect of those words conveyed to Anderson that a weekly tribute of $100 would bring an end to the disturbances. In deciding whether that was the meaning of the language, the relations of the parties, as well as the circumstances under which Mancini spoke the words, were relevant to the establishment of a material fact in the chain of proof of the crime in issue. Whether he had the power to curb the disorders was in itself unimportant. What was critical was whether he in effect told Anderson 'Unless you pay me $100 a week the disturbances will continue.' To allow the testimony was not error. People v. Dioguardi, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 168 N.E.2d 683.

Mancini next claims that the trial justice erred in permitting leading questions. The questions objected to, however, were not leading because they neither suggested the specific tenor of the desired replies nor contemplated responses that would be given irrespective of an actual memory; or, even if leading, because so framed as to invite a 'yes' or 'no' answer, were not improper because the desired answers in the desired form were not on points material to a disposition of the case, and, in any event, could not reasonably be said to have influenced the verdict. ³ Urbani v. Razza, 103 R.I. 445, 238 A.2d 383.

The defendant also argues that objectionable hearsay testimony was allowed. An example of the kind of evidence he challenges is found in the testimony of the police officer who said that he went to the accident room of the Rhode Island Hospital at 1:45 on the morning of January 6, 1968 to investigate a complaint of a 'visibly shaken' and 'very excited' person who told him that he had been assaulted about three quarters of an hour earlier in front the El Rio. ⁴

Clearly the officer's characterization of the declarant's apparent emotional state was admissible under the principle which permits a lay witness to give his opinion on such matters as the appearance and physical condition of another person if that opinion is based upon observations of composite facts which he could not otherwise convey to a jury. The underlying rationale is that there is no better way to portray another's emotional state than to characterize him as 'visibly shaken' and 'very excited.' Those characterizations could be testified to in this case as observable conditions. Fillman v. State, 41 Ala.App. 175, 177-78, 127 So.2d 628, 629-30; People v. Deacon, 117 Cal.App.2d 206, 210, 255 P.2d 98, 101; Commonwealth v. Bonomi, 335 Mass. 327, 339, 140 N.E.2d 140, 151; 7 Wigmore Evidence, § 1974 at 113 et seq. (3d ed.)

It is just as clear that the trial justice did not abuse his discretion when he ruled that testimony by the officer of the victim's extrajudicial utterances qualified for admission under the spontaneous exclamation exception to the hearsay rule. Under that exception out-of-court statements are admissible, even if not strictly contemporaneous with the exciting cause, if from a consideration of all of the facts in the case it appears that the declarant when he spoke was still laboring under the stress of the nervous excitement engendered by the event he describes. State v. Nordstrom, 104 R.I. 471, 476, 244 A.2d 837, 840. Given the circumstances described by the officer in this case, the trial justice was warranted in assuming that the victim's utterances were '* * * made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection * * *.' 6 Wigmore Evidence, § 1747 at 135. Such utterances, Wigmore continues,

'* * * may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts.'

The defendant also argues that the trial justice abused his discretion in limiting the scope of his cross-examination of Harold Anderson. Certainly it was not error to foreclose so much of that cross-examination as was not directed either to the witness' credibility or to any valid matter that had been raised on direct examination, and all but one of the inquiries which Mancini includes in this issue fit into this classification. ⁵ Atlantic Refining Co. v. Director of Public Works, 102...