990 A.2d 1229 (R.I. 2010), 2002-655-C.A., State v. McManus

Docket Nº:2002-655-C.A.
Citation:990 A.2d 1229
Opinion Judge:GOLDBERG, Justice
Party Name:STATE v. Joseph McMANUS.
Attorney:Christopher R. Bush, Department of Attorney General, for Plaintiff. Susan B. Iannitelli, Esq., for Defendant.
Judge Panel:Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.
Case Date:April 02, 2010
Court:Supreme Court of Rhode Island
 
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990 A.2d 1229 (R.I. 2010)

STATE

v.

Joseph McMANUS.

No. 2002-655-C.A.

Supreme Court of Rhode Island.

April 2, 2010

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[Copyrighted Material Omitted]

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Christopher R. Bush, Department of Attorney General, for Plaintiff.

Susan B. Iannitelli, Esq., for Defendant.

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

OPINION

GOLDBERG, Justice

The defendant, Joseph McManus (defendant or McManus), is before the Supreme Court on appeal from Superior Court judgments of conviction for criminal solicitation. The defendant was found guilty after a jury trial of soliciting Vincent Arruda (Arruda) to murder Attorney General Jeffrey Pine (Attorney General) and soliciting Robert Smith (Smith) to murder the Attorney General and to feloniously assault Assistant Attorney General Margaret Lynch (Lynch). We affirm.

Facts and Travel

This case arose in the aftermath of defendant's horrific murder of his wife on June 29, 1996, in the presence of their children. This Court affirmed his conviction and the sentence of life imprisonment without the possibility of parole that was imposed by the trial justice. See State v. McManus, 941 A.2d 222 (R.I.2008). While defendant was being held without bail at the Adult Correctional Institutions (ACI) awaiting trial on the murder charge at the Intake Service Center (Intake), his interaction with four of his fellow inmates are of consequence in this case. The record discloses that Arthur Pine, Mark Pine,1 Robert Smith, and Vincent Arruda, were approached individually by defendant, who wanted to hire a person or people to commit murder and felony assault against the Attorney General and the prosecutor assigned to the case. The defendant was charged, by way of grand jury indictment, with three counts: 2 criminal solicitation of Arthur Pine to commit murder in violation of G.L.1956 § 11-1-9; criminal solicitation of Vincent Arruda to commit murder in violation of § 11-1-9; criminal solicitation of Robert Smith to commit murder and/or assault with a dangerous weapon in violation

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of § 11-1-9.3 In its case in chief, the state called the four men, all of whom were alleged to have engaged in these conversations with defendant.

Arthur testified about meeting defendant at Intake; he explained that the two developed a relationship such that defendant asked Arthur, " how much to take care of [the Attorney General]?" When Arthur inquired of defendant how the murder of the Attorney General would help his case, defendant replied, " It's going to do me a lot of good * * * [he] is using my kids to testify against me." The defendant went on to describe in detail how the murder should take place. Specifically, defendant wanted the Attorney General to be shot two times-one bullet for each of defendant's children-because the prosecution intended to call them as trial witnesses in the underlying murder case. Arthur testified that he took copious notes of his various conversations with defendant and eventually went to his correctional officers with this information. An investigation by the state police and the Office of the Attorney General ensued. However, the jury rejected Arthur's testimony.

Mark Pine, Arthur's brother and fellow inmate, was the second witness to testify about the solicitation. He testified that he met defendant through his brother, while both were at Intake. According to Mark, defendant was aware of the state police investigation and repeatedly asked Mark to tell his attorney that Arthur was lying. Mark testified that defendant, yet again, described in detail how he wanted the Attorney General killed and that he wanted someone to break Lynch's legs.

The crux of this case, however, turns on the testimony, or lack of testimony, of Robert Smith, another jailhouse informant. When Smith was called to testify, he claimed to have suffered an unfortunate and total failure of memory about everything he previously had disclosed to law enforcement, including his police statement and grand jury testimony. The record discloses that Smith was at Intake during the period when defendant actively was recruiting others to carry out his criminal enterprise. During a long discussion with investigators, Smith described his relationship with defendant and disclosed that defendant sought Smith's help in murdering the Attorney General and assaulting Lynch. According to Smith, defendant offered him $5,000 for his services. Smith also gave detailed testimony before the grand jury.

However, when testifying at trial, Smith professed a total failure of memory about everything concerning the incident, including his discussions with the state police. After some initial examination, the prosecutor treated Smith as an adverse witness and began to use leading questions. The trial justice allowed the state's use of leading questions, over defense counsel's continuing objection. The prosecutor continued to pose leading questions-an effort that spanned fifty-one pages of trial transcript. Defense counsel objected and argued that continuing this line of inquiry was not only fruitless, but was having a prejudicial effect on the jury. The trial justice responded: " [The prosecutor] hasn't been through the whole thing yet. I'm prepared to stay here all day while

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[Smith] either answers ‘ yes' or ‘ no’ that he doesn't remember." The trial justice allowed the questioning to continue but noted counsel's objection. Additionally, in yet another attempt to refresh the witness's recollection, a tape recording of Smith's testimony before the grand jury was played to the jury.

After Smith's turn on the witness stand, the state called Arruda, another of defendant's fellow inmates. Arruda testified that while at Intake defendant approached him to murder the Attorney General and offered him $25,000 in exchange " to make a hit on the Attorney General."

The state next called John P. A'Vant (Det. A'Vant) from the state police, the detective who investigated this case. Detective A'Vant testified that he tape-recorded the interview with Smith and that the transcript of that interview consisted of 367 questions and fifty pages of transcript. The state sought to have the transcript of the interview introduced as a prior recorded recollection, under Rule 803(5) of the Rhode Island Rules of Evidence. Although defendant objected, he did so on the ground that the document had not been authenticated and was neither signed nor witnessed. Defense counsel further argued that the prosecutor essentially had read the entire statement into the record through his use of leading questions to Smith. The trial justice allowed it and...

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