State v. Flori

• Decision Date: 06 February 2009
• Docket Number: No. 2007-167-C.A.,2007-167-C.A.
• Parties: STATE v. Thomas FLORI.
• Court: Rhode Island Supreme Court

963 A.2d 932

STATE v. Thomas FLORI.

No. 2007-167-C.A.

Supreme Court of Rhode Island.

February 6, 2009.

Aaron L. Weisman, Providence, for Plaintiff.

Paula Rosin, Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

Thomas Flori, the defendant, was acquitted by a Superior Court jury of stealing money exceeding $500, but he was convicted of conspiracy to commit larceny. Mr. Flori now appeals, advancing three arguments in support of his claim that the trial justice committed reversible error. The defendant's primary contention is that the trial justice erred in denying his motion for a new trial based upon improper jury instructions. He alternatively submits that either his conviction should be vacated or his sentence reduced to conform to a misdemeanor conviction. Secondly, the defendant argues that the trial court improperly granted the state's motion to amend the criminal information before trial began. Thirdly, he contends that the trial justice improperly admitted into evidence irrelevant and prejudicial testimony at trial. We issued an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After examining the written and oral submissions of the parties, we are of the opinion that the appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

I Facts and Procedural History

This case stems from an allegation that defendant and David Romano (David) repeatedly stole money from David's uncle, Pio Romano III (Pio). At the time of the alleged larceny, Pio was living in Cranston, Rhode Island, in the basement apartment of his parents' home. There, he stored a large sum of money — approximately $47,000 — in a safe that was located in the bottom of his closet. According to Pio's testimony, he occasionally removed or added cash to the safe. The safe was secured by a lock and key. Pio kept the key to the safe on his keychain, which he occasionally left on the kitchen counter in his apartment. Pio's mother had the only other copy of the key, which she kept in the nightstand in her bedroom.

During the summer of 2004, David, Pio's thirteen-year-old nephew, who lived in the same house, discovered a key on the kitchen counter in Pio's apartment. David testified that he believed the key belonged to a safe. After a lengthy search, he found a safe in the closet of Pio's apartment. Upon locating the safe, he inserted the key to see whether it fit, but asserted that he did not open the safe. He then returned the key to where he found it. David testified that he later told defendant about the key and the safe that he had found; he claims that he did not tell anyone else.¹ According to David, when he told defendant about the key, defendant inquired about what the safe contained, and David informed him that he had not opened the safe. David testified that defendant later asked him about the key and safe on at least three or four occasions. Eventually, David showed defendant where the key and safe were located. David testified that he waited in another room while defendant opened the safe. The defendant told David that there was a large amount of money in the safe.

According to David, over the next few months, defendant opened the safe several times and removed money. The second time defendant opened the safe, he took $3,000, of which he gave $1,000 to David later that same day. David claimed that defendant gave him the money to keep quiet. Over the course of that summer, David witnessed defendant removing money from the safe twice; defendant also informed David that he had taken money from the safe three or four more times. David testified that defendant gave him "a lot" of money over the course of the summer, totaling approximately $10,000. Throughout his testimony, David recounted purchases defendant made during this period — including various dirt bikes, automobiles, clothes and shoes — even though defendant did not have steady employment at the time. David's sister, who at one time was defendant's girlfriend, also testified about these purchases, describing them as outside his normal budget.

Pio testified that in August or September 2004 he noticed that most of the money he had stored in his safe was missing. Although he originally told the police that all the money was missing, he testified at trial that $8,000 to $11,000 remained in the safe when he noticed the theft. Pio stated that the last time he had counted the money was around March 2004 and that, at that time, there had been about $47,000 in the safe.

According to Pio, because he believed that someone within the family or who had access to the house had taken the money, he did not report the theft to the police at the time he discovered that most of his money was missing. Instead, he began questioning family and household members. David testified that he repeatedly denied any knowledge about the money missing from the safe. Several months later, however, David confessed to his grandfather that he had stolen money from the safe and that defendant was involved.

Pio went to the police and reported the money stolen in June 2005. On June 6, 2005, defendant was arrested. He was charged on August 2, 2005, with larceny over $500 and conspiracy to commit larceny. Trial by jury commenced on July 17, 2006. On July 20, 2006, the jury returned a verdict of not guilty on the charge of larceny over $500, but it convicted defendant of conspiracy to commit larceny. The trial justice heard and denied defendant's motion for a new trial on October 10, 2006, and on October 27, 2006² he sentenced defendant to ten years imprisonment, with seven years to serve and three years suspended, with probation. The defendant filed a timely notice of appeal on November 1, 2006.³

We discuss additional facts, as needed, in the context of the legal issues raised on appeal.

II Discussion

A Motion for a New Trial

Mr. Flori's first contention on appeal is that the trial justice erroneously denied his motion for a new trial based upon improper jury instructions. In instructing the jury on the charge for conspiracy to commit larceny, the trial justice did not specifically state that a guilty verdict required a finding that defendant conspired to commit larceny for a monetary amount exceeding $500. The defendant's only objection, however, concerned the length of the conspiracy instruction. Subsequently, defendant filed a motion for a new trial based upon the omission in the conspiracy charge that the amount of money conspired to be stolen must exceed $500. He argued that this error necessitated a new trial or, alternatively, that his sentence should reflect the maximum penalty allowed for larceny of less than $500.⁴ The trial justice denied the motion on the ground that the instructions, viewed holistically, were sufficient to put the jury on notice that the conspiracy charge required an agreement to steal over $500. Noting that the jury had been provided with a written copy of his instructions, the trial justice observed that the instruction he had given on larceny over $500 specifically included the element that the money taken had to exceed the value of $500. Immediately thereafter, he instructed the jury on the crime of conspiracy to commit larceny, stating to the jurors that he had "just given [them] a definition of the crime of larceny." Reasoning that the only definition of larceny the jurors had received encompassed the requirement that the amount stolen exceed $500, he concluded, "I don't think there is any question in that regard that the definition of conspiracy to commit larceny included the felony aspect of it."

The defendant acknowledges that he failed to properly object to the jury instructions before the case was submitted to the jury, but he argues that his challenge to the jury instructions in a motion for a new trial is sufficient to preserve the issue for appellate review. Specifically, he contends that Rule 33 of the Superior Court Rules of Criminal Procedure provides that a new trial may be granted "if required in the interest of justice" and that, in this case, the interests of justice clearly require such relief. The defendant asserts that the error here is of constitutional proportions, in that (1) the failure to instruct on the monetary amount violated his Sixth Amendment right to have a jury determine his guilt on every element of the crime charged, and (2) absent a jury finding on the amount of money involved in the conspiracy charge, the statutory maximum penalty could not exceed that for a misdemeanor.⁵ Specifically, defendant contends that the error "implicates the Apprendi-line of decisions from the United States Supreme Court, holding that any fact that permits a trial court to exceed the statutory maximum penalty must be found by the jury." See Cunningham v. California, 549 U.S. 270, 281, 288-89, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); United States v. Booker, 543 U.S. 220, 230-31, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Without a specific jury finding that the amount of money defendant conspired to steal exceeded $500, he argues, the trial court could not authorize a harsher felony sentence without violating his Sixth Amendment right to a jury trial.

The state argues, in opposition, that Rule 30 of the Superior Court Rules of Criminal Procedure requires a defendant to object to a jury charge before the jury retires and that failure to do so constitutes a waiver of any objection to the jury instructions. The state contends that raising the issue in a motion for a new trial is...