State v. Giordano

• Decision Date: 03 February 1982
• Docket Number: No. 79-265-C,79-265-C
• Citation: 440 A.2d 742
• Parties: STATE v. Vincent J. GIORDANO. A.
• Court: Rhode Island Supreme Court

Page 742

440 A.2d 742

STATE v. Vincent J. GIORDANO.

No. 79-265-C.A.

Supreme Court of Rhode Island.

Feb. 3, 1982.

Dennis J. Roberts, II, Atty. Gen., Alan R. Tate, Asst. Atty. Gen., for plaintiff.

Mark L. Smith, Woonsocket, for defendant.

OPINION

SHEA, Justice.

The defendant, Vincent J. Giordano (Giordano), appeals from his conviction for the crime of breaking and entering with the intent to commit larceny, in violation of G.L. 1956 (1969 Reenactment) § 11-8-5. Giordano claims that the trial justice committed prejudicial error in three instances, each of which would justify reversal of the conviction. He contends first that a search warrant was invalidly issued because the trial justice who signed the order was not a neutral and detached magistrate, second that the trial justice exhibited bias before the jury in favor of the prosecutor, and finally that the trial justice erred in denying Giordano's motion for a judgment of acquittal. We affirm the conviction.

The scene of the crime in question is a multistoried building located at 274 Orms Street in Providence. The owner, Donald F. King, testified that on the morning of June 29, 1976, he entered his office on the building's first floor to find that it had been broken into sometime after he had left it the previous day. The room was in complete disarray. One window had been smashed, apparently to allow the criminal ingress. King had locked all of the windows and the door before he had left the day before. King's savings passbook, checkwriter, adding machine, personal checks, and refrigerator were gone. The perpetrator had also attempted to remove a room air conditioner but had been unsuccessful. It was found sitting askew in the window.

King testified that he and his wife had the only keys to the office. He said that his wife was in the office occasionally but, had not been there the day before the break-in. King also said that neither he nor his wife ever gave their keys to anyone else. ¹ Aside from the Kings no others had permission to be in the office.

King knew Giordano in 1973 when Giordano, as a short-term tenant, lived in rooms located above King's office. King saw Giordano once near the building after 1973 but never met him in the office after the time of his tenancy.

Officer Wayne P. Gill of the Providence police department came to the scene in response to King's report of the crime. He was then a member of the Bureau of Criminal Investigation. He examined several items for fingerprints, including the air conditioner. King had purchased the air conditioner at a fire sale and installed it himself in 1975. While restoring it to working condition, King had wiped it down completely with a household cleaning liquid.

Officer Gill testified that he had found two identifiable fingerprints on the air conditioner. He was able to match these prints to Giordano's fingerprints. As part of the identification process, Officer Gill used fingerprints that he had taken from Giordano just before giving his testimony on the second day of the trial. King and Gill were the only witnesses who testified during the trial.

Giordano's first claim of error involves the taking of his fingerprints on the same day that Gill testified. This fingerprinting was the subject of a search warrant issued by the trial justice on the morning of the trial's second day. Giordano claims that the timing of the order tainted the search warrant. Specifically, the taint arose because the trial justice, having heard a full day's testimony the previous day, was not a neutral and detached magistrate as required by the United States Constitution. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The record shows that on the day that the trial commenced and prior to the taking of testimony, the state orally requested that it be allowed to fingerprint Giordano forthwith. The state explained its request in this way: a gap existed in its proof linking Giordano and the prints found on King's air conditioner because of the unavailability of a witness. The Providence police did have fingerprint cards with Giordano's name on them both from the 1960's and from Giordano's arrest for this offense. Officer Gill had made a positive identification when he had compared the fingerprint cards on file with the prints he took at the crime scene. However, the state lacked a witness to testify that the Vincent Giordano whose fingerprints appeared in police records was the same individual as the Vincent Giordano on trial. The state's purpose in taking Giordano's prints at the time of trial was to match them to the prints that were already on file and not merely to assemble cumulative proof against Giordano. At the time of the request the trial justice reserved his decision.

On the second morning of the trial before testimony resumed, the trial justice requested and received the affidavits of Officer Gill and his superior, Captain Phillip Barthgate, which affidavits reiterated in detail the state's request. The trial justice then issued the warrant that Giordano now challenges. We think the procedure did not run counter to constitutional requirements.

Giordano challenges the neutrality and detachment of the trial justice. He points out that the trial justice had already heard testimony that referred in part to a search for fingerprints. By virtue of this fact he attempts to identify the trial justice with the prosecutor. Giordano refers us both to cases in which officials having police or prosecutorial functions also engaged in issuing search warrants, and to cases that reiterate the need to divide these functions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971) (warrant invalid if issued by state attorney general acting as justice of the peace); Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (district attorney issuing subpoena duces tecum not a valid basis for search); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (hurried action of law-enforcement officers is inferior to the informed detached judgment of magistrates); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (the "often competitive enterprise of ferreting out crime" requires that probable cause be determined in an environment of neutrality).

None of those cases is helpful to Giordano. Conspicuously absent from the present case is that element of institutional bias to which the courts have addressed themselves in the cited cases. Here, we have the role and function of a strictly judicial officer. The record indicates that the trial justice was fully aware of his responsibility to remain impartial. Nothing in the trial justice's remarks would cause this court to believe that he considered any material other than the affidavits presented to him. Moreover, there was nothing in the previous day's testimony concerning fingerprints that the trial justice was not made aware of by the state in its oral motion. We find nothing in the record that would detract from the trial justice's neutrality regarding the issuance of the warrant.

Giordano next contends that he was denied his right to a fair and impartial trial under the State and Federal Constitutions because the trial justice took it upon himself to interrogate the witnesses King and Gill at various times. Giordano argues that the trial justice's participation was unwarranted and prejudicial to his case because the trial justice's activity endorsed or promoted the prosecution's side of the case.

The record discloses five instances in which the trial justice interjected his own questions to the witnesses. Giordano timely objected in each case. The trial justice asked King whether he had ever permitted Giordano to be on the premises after King had installed the air conditioner and how often King's wife came to the office. He questioned Officer Gill about the method and terminology of fingerprint identification. He asked Gill to express his opinion concerning the similarity or the lack of similarity he found between the recorded...