Broccoli v. Moran

• Citation: 698 A.2d 720
• Decision Date: 29 July 1997
• Docket Number: No. 95-345-C,95-345-C
• Parties: John E. BROCCOLI v. John MORAN. A..
• Court: United States State Supreme Court of Rhode Island

Page 720

698 A.2d 720

John E. BROCCOLI v. John MORAN.

No. 95-345-C.A..

Supreme Court of Rhode Island.

July 29, 1997.

Constance H. Pannone, for Plaintiff.

Annie Goldberg, Aaron Weisman, Asst. Attorneys General, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER and FLANDERS, JJ.

OPINION

BOURCIER, Justice.

John E. Broccoli (Broccoli), a convicted conspirator and robber, appeals from the denial of his application for postconviction relief following a hearing thereon by a trial justice in the Superior Court. We deny his appeal and affirm the judgment denying his application.

I Case Travel

On February 6, 1985, Gasbarro's liquor store (Gasbarro's) on Atwells Avenue in Providence was robbed by armed and masked gunmen. Broccoli, along with Lawrence Mastrofine (Mastrofine), was later arrested for and charged with conspiring to commit as well as committing that robbery. Both were later tried before a jury in the Superior Court and found guilty. On appeal to this Court their convictions were affirmed and their appeals denied. State v. Mastrofine, 551 A.2d 1174 (R.I.1988).

Some months thereafter, Peter Gilbert (Gilbert), who had been a participant along with Broccoli and Mastrofine in the Gasbarro robbery and who had testified as a state's prosecution witness against them at their Superior Court jury trial, died unexpectedly in Connecticut while en route to a skydiving lesson at an airport in that state. The Connecticut police, in the course of examining the vehicle in which Gilbert had died, found a quantity of cocaine. Gilbert's death in Connecticut, along with the cocaine found in his vehicle, served to trigger extensive news-media attention and publicity as well as investigations by public and police officials in the City of Providence. The reason for all that interest was that Gilbert, at the time of his death and for some many months prior, had been living in protected-witness custody of the Providence police department. Several investigations undertaken both by the local news media and by local city officials revealed and exposed instances of certain detention practices of Gilbert by his police custodians that could justifiably be described as both sloppy and careless and liberties that could be interpreted as favorable and in fact generously preferential. Broccoli, upon learning what Gilbert's unexpected death had unearthed, convinced himself that if his trial jury had known of the preferential treatment given to Gilbert by his police custodians, it would not have found him guilty of the Gasbarro robbery.

This Court has twice recently, in appeals involving a different defendant, considered what probable effect the posttrial disclosures and revelations concerning the nature and substance of Gilbert's police-custody amenities might have had upon a trial jury's determination of Gilbert's credibility as a state prosecution witness. Mastracchio v. Moran, 698 A.2d 706 (R.I.1997); State v. Mastracchio, 605 A.2d 489 (R.I.1992). We determined in those instances that it was highly unlikely that such later discovered facts that came to light after Gilbert's death would have had any effect upon the trial jury's credibility assessment of his trial testimony and most certainly would not have in any manner undermined confidence in the trial jury's verdict. Notwithstanding those previous holdings, because the assertion before us is that the state's failure to inform Broccoli's counsel of all the details concerning Gilbert's police-custody confinement violated Broccoli's due process rights, our review of the Superior Court's judgment denying his application for postconviction relief involves mixed questions of law and fact that have an impact upon constitutional matters and consequently require our de novo review of his post-conviction-hearing record in this case.

II Case Facts

In late January 1985, Broccoli approached a longtime friend, Steven DiPaolo (DiPaolo) with a plan to rob Gasbarro's liquor store where DiPaolo, a cousin of the store owner, Lombard Gasbarro (Lombard), was employed as a clerk. Broccoli at that time was in need of money as was DiPaolo, who was finding it difficult to support his cocaine habit on a store clerk's salary. DiPaolo was initially reluctant to participate in the robbery, but because he was heavily indebted to his cocaine suppliers, he agreed to do so. DiPaolo's role in the robbery was to serve as the inside man and advise the others when it would be most advantageous to implement the robbery and to provide details of the store's operation and the place the store receipts would be kept.

Soon after DiPaolo agreed to participate in the robbery, Gilbert, Broccoli, DiPaolo, and Mastrofine, the four primary robbery participants, met at Squire Auto Body in Providence, where Broccoli was employed, in order to plan out the details of the robbery. DiPaolo told the others present at that meeting that Wednesday mornings were generally slow for business at the liquor store and would therefore be the best time to rob it. DiPaolo knew that on Wednesday mornings chances were good that no one else would be in the store other than himself and his cousin Lombard, the owner of the store. DiPaolo also suggested that committing the robbery on a Wednesday would reduce the chances of having customers present in the store who might be injured or become witnesses. DiPaolo described to his confederates the location in the liquor store where Lombard kept the store sale proceeds and also told them that they could expect to find between $5,000 and $20,000 there. ¹ The robbery was initially scheduled for the last Wednesday in January ² but was suddenly postponed at the last moment to February 6, 1985, because on the day before the originally scheduled robbery date, DiPaolo told Broccoli that he had made a large bank deposit of store money, leaving little to be taken in the store. Broccoli, after learning this fact from DiPaolo, rescheduled the robbery for February 6.

During the early cold and snowy morning hours of February 6, 1985, Gilbert met with Kenneth Silva (Silva) and Silva's girlfriend. The three of them then drove to East Providence where they were to meet with Mastrofine and a girl with whom Mastrofine had shared a hotel room the previous night. When they arrived, Gilbert became upset upon learning that Mastrofine and Broccoli had not, as planned, stolen a car to be used in the robbery. Gilbert was also upset because he, in addition, learned that a Cadillac car that he had planned on driving back to Providence from East Providence that morning had been stopped the previous day by the East Providence police while Mastrofine was driving it. Because Mastrofine, when the car was stopped, had identified himself as Silva and Silva's driver's license was found to have expired, the police told Mastrofine that he could not drive the Cadillac and must leave it where parked. The police then offered to and did drive Mastrofine and his female companion from the location where the Cadillac was left parked to the hotel where Mastrofine and his companion were staying.

After an extensive search at Mastrofine's hotel for the keys to the parked Cadillac proved successful, Gilbert then left Mastrofine's hotel room in East Providence along with Silva and his girlfriend and drove to the place where the Cadillac had been left by Mastrofine. When they arrived there, Gilbert left Silva's car, got into the Cadillac, and drove it back to the hotel where Mastrofine was staying to pick up Mastrofine and his female friend, and they then drove to Providence to meet with Broccoli. Meanwhile, Silva and his girlfriend returned to their home where their assigned task was to monitor a police radio in preparation for the liquor-store robbery.

Gilbert, Mastrofine, and Mastrofine's companion all drove in the Cadillac to a Dunkin Donuts store in Olneyville Square where they met Broccoli, as per prearranged plan. Broccoli was at first upset because Gilbert was late, and Broccoli thought Mastrofine and Gilbert had canceled the robbery without telling him. After Gilbert and Mastrofine assured Broccoli that the reason they were late was the problem concerning the Cadillac, Broccoli settled down and was pleased that the robbery was still scheduled. Mastrofine then asked Broccoli to drive his female friend to her home on nearby Atwells Avenue in Providence. Broccoli agreed and did so. Mastrofine and Gilbert then left together in the Cadillac, with Mastrofine driving. They went to Gilbert's house where they picked up weapons and other assorted robbery paraphernalia. After putting those items into the Cadillac, Mastrofine and Gilbert then drove to Squire Auto Body to pick up Broccoli, who had returned there after driving Mastrofine's female friend to her home.

When they arrived at Squire Auto Body, Broccoli took over the driving of the Cadillac, Mastrofine sat in the front passenger seat, and Gilbert sat in the rear passenger seat. The trio then set out for Gasbarro's liquor store to do there what would eventually bring them here.

When they arrived at Gasbarro's liquor store, a liquor delivery truck making a delivery happened to be parked in front of the store. Concluding that it was not then a good time to commit the planned robbery, Mastrofine, Broccoli, and Gilbert decided to park and wait on a side street across from the liquor store's parking lot, from which location they could continuously reconnoiter the situation. Over the course of an hour, the group continued to observe the activities outside the store. They then moved from their surveillance location and drove around the immediate area a few times. Finally, Gilbert exited the Cadillac and stood on the corner opposite the liquor store. At that point, DiPaolo, who had come out of the store to help unload items from the parked delivery truck, saw Gilbert and signaled Gilbert away by shaking his head from side to side. Gilbert, despite DiPaolo's warning signal, remained...