State v. Palmigiano

• Decision Date: 10 October 1973
• Docket Number: No. 1575-E,1575-E
• Citation: 112 R.I. 348,309 A.2d 855
• Court: Rhode Island Supreme Court
• Parties: STATE v. Nicholas A. PALMIGIANO. x. &c.

Page 855

309 A.2d 855

112 R.I. 348

STATE v. Nicholas A. PALMIGIANO.

No. 1575-Ex. &c.

Supreme Court of Rhode Island.

Oct. 10, 1973.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for petitioner.

Breslin, Sweeney, Reilly & McDonald, Stephen J. Fortunato, Jr., Warwick, Ronald J. Chisholm, Boston, Mass., for defendant.

OPINION

KELLEHER, Justice.

These are two indictments. One charges Nicholas A. Palmigiano and Gelardo Mastracchio with robbery. The other charges Palmigiano and Mastracchio with a felony murder. The indictments were consolidated for trial in the Superior Court. The jury returned guilty verdicts on both indictments. The exceptions presently being considered are Palmigiano's.

On Thursday, April 10, 1969, at approximately 8 a.m. in Providence a Brink's armored truck left its terminal and headed for the Harris Avenue plant of the H. P. Hood & Sons, hereinafter referred to as 'Hood's'. The vehicle's crew consisted of a driver, Joseph P. Bova, and two armed messengers, James A. Sullivan and John Glendinning. Part of the truck's cargo was a suitcase containing $10,000 in cash. Thursday is payday at Hood's. The truck was to stop at Hood's where Glendinning would go to a second floor office with the $10,000 and cash employees' paychecks. The day's schedule called for the truck, after leaving Glendinning at Hood's, to proceed to an optical manufacturer where Sullivan would perform the same task Glendinning would be doing at Hood's.

The truck made its way to Dean Street where it proceeded in a northerly direction to a ramp which permitted entrance onto Harris Avenue. Just prior to arriving at the ramp, Bova noticed to his front a Honda motorcycle. The cycle's operator wore a white helmet and a dark jacket. The truck turned right and proceeded down the ramp to Harris Avenue. Once it reached Harris Avenue, the truck made a U-turn so that it could park at Hood's front door. Bova observed that the cycle came down the ramp and cut across Harris Avenue towards a driveway which ran along the westerly portion of the premises owned by Brownell & Field Company. Brownell & Field is Hood's next-door neighbor. It markets and distributes a line of coffee and tea products under the trade name 'Autocrat.'

Once the truck stopped at Hood's, Sullivan left the truck, entered the Hood plant and inspected the stairway leading to the second floor. He returned to the sidewalk and indicated to Glendinning that everything was in order. Glendinning, suitcase in hand, left the truck and entered the building. Sullivan returned to the vehicle, prepared to go to the next job when a woman came out of the doorway and shouted, 'They're holding him up.'

A volley of shots was heard and within a matter of seconds a person carrying a gun and a Brink's suitcase charged through the entranceway onto the sidewalk. The person wore a wig and sunglasses and the Brink's men were in doubt as to the robber's sex. The robber started running easterly along the sidewalk toward Brownell & Field. Sullivan fired two shots. He and Bova started to chase the robber. Bova ordered Sullivan to return to the truck and secure its contents. Sullivan secured the truck and went into Hood's premises to check on his co-worker. He found Glendinning mortally wounded, sprawled on a landing midway between the first and second floors.

In the meantime, Bova had pursued the robber into the Brownell & Field property. The felon ran down the alleyway, jumped up onto a loading platform, and disappeared into the warehouse portion of Brownell & Field. During the chase, the robber lost or discarded a pocketbook, the suitcase, the wig, the sunglasses, a glove, and a pair of women's flat-heeled shoes. Sometime during the pursuit, the thief turned and pointed at Bova. As Bova retrieved the suitcase and its $10,000, he saw his quarry run out a side door, jump into a station wagon, and drive out the alleyway onto Harris Avenue. Bova also testified that the motorcycle he had seen near Brownell & Field's driveway had disappeared once the gunman had made good his getaway. The 'Autocrat' station wagon was found abandoned in the Eagle Park section of the city at approximately 8:40 a.m. One of its door panels was stained with blood. Thanks to the assistance of a concerned citizen, a search of the underbrush on a lot located near Palmigiano's house uncovered a pistol.

Sometime later in the morning, Palmigiano was arrested at a relative's house. He had been wounded on the left arm.

At the trial, a Hood's salesman testified that at 8:10 a.m. as he went up the stairway to the office, he passed an individual who he thought was a lady wearing a gray pant-suit, a pair of black shoes, and a red ribbon in her hair. Shortly after he entered the office, the salesman heard shots. A member of the office staff told of how when she entered the stairwell, she saw Glendinning standing on a landing. She observed a person whom she thought to be a woman pointing a gun at the Brink's employee. Once she heard the 'woman' talk, the employee was sure the 'she' was a 'he.' Experts from the Federal Bureau of Investigation informed the jury that (1) fingerprints found on the station wagon's steering wheel matched those of Palmigiano; and (2) that the gun found in the lot was the murder weapon. Bova identified Palmigiano as the person he chased in, around, and about Brownell & Field. Two witnesses, who were standing near the entrance of Brownell & Field's alleyway as the station wagon went by them onto Harris Avenue, identified Palmigiano as the driver. A driver-salesman for Brownell & Field identified Palmigiano as the person he noticed standing in the main entrance of Brownell & Field shortly before the holdup. The salesman at first thought the standee was a woman but when he had taken a third look, he noticed the 'woman's' five o'clock shadow was showing through a white powdery substance that covered 'his' face.

Palmigiano's defense was an alibi. Testimony was offered to show that at the time the Hood's holdup was taking place, Palmigiano was drinking coffee in a restaurant located many miles away from the shooting. Palmigiano explained the bullet would by telling the jury that after coffee, he drove to the bus terminal on Sabin Street, Providence, where he met an individual who owed him money. They proceeded to Roger Williams Park. When they arrived at the park, Palmigiano and the debtor argued over the payment of interest. The borrower eventually refused to pay back the entire loan, pulled a gun, and then shot Palmigiano in the wrist.

In his bill of exceptions, Palmigiano alleges a denial of his constitutional rights. We do not agree.

I The Right to a Speedy Trial

The robbery and murder occurred on April 10, 1969. The indictments were returned on April 28. Palmigiano was arraigned on May 21. He filed his motion for a speedy trial on July 14. His trial began on June 9, 1970, some 11 months after the filing of his motion.

Within the past few months, we have stressed that since the right to a speedy trial is a relative one, a determination of whether that right has been violated must be determined on a case-by-case basis. State v. Palmigiano, R.I., 306 A.2d 830 (1973). In making such a determination, consideration is to be given to several factors such as the length of delay, the reason for the delay, the demand or lack of demand for a speedy trial, and the prejudicial effect of the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Tate v. Howard, 110 R.I. 641, 296 A.2d 19 (1972).

The length of delay in this case, 11 months, is shorter than the 16-month period in Tate, and much briefer than the 22-month interval in Palmigiano.

The docket entries give a good insight into the cause for the delay. Initially Palmigiano asked that he be admitted to bail. On July 30, 1969, his then attorney filed a motion to withdraw. This motion was granted on August 7, 1969. Three months later, a series of motions was filed asking all sorts of discovery. At that point, Palmigiano had no counsel of record. His present counsel, a member of the Massachusetts bar, filed an entry of appearance on November 12. However, no local counsel entered an appearance until December 8.

This court is aware that during the months of February and March, 1970, Palmigiano's present counsel was engaged in a lengthy trial in Superior Court. State v. Lerner, R.I., 308 A.2d 324 (1973). We are acutely conscious of the accused's right to a speedy trial but where the delay is attributable to the accused's pretrial maneuverings, we must look upon the claim of constitutional infringement with a somewhat jaundiced eye. Marzilli v. Howard, 108 R.I. 309, 274 A.2d 902 (1971).

It is interesting to note that Palmigiano made no assertion of his sixth amendment right until his effort to be released on bail had fallen on deaf ears.

The defense made a belated effort to show the requisite prejudice. After both sides had rested, Palmigiano, renewed his motion for dismissal, ¹ made some oblique reference to a question posed by 'Prosecutor Pettine' to 'Dr. Harrison.' There was no attempt to pinpoint the time and setting of the inquiry.

'Prosecutor Pettine' is now Raymond J. Pettine, Chief Judge of the United States District Court for the District of Rhode Island. While he once was an assistant Attorney General, he left this office many years ago. ² 'Dr. Harrison' was Dr. Harold C. Harrison, the assistant director of the University of Rhode Island laboratories of scientific criminal investigation. See State v. Andrews, 86 R.I. 341, 134 A.2d 425 (1957). He died on April 26, 1970, about a month and a half prior to the commencement of Palmigiano's trial.

The quoted reply of Dr. Harrison apparently indicated that he would differ with the prosecution's expert who told the trial justice and the jury that in modern fingerprint identification procedures, there is no set number of identity points which are required for a...