Infantolino v. State

• Decision Date: 12 May 1980
• Docket Number: No. 79-437-C,79-437-C
• Citation: 414 A.2d 793
• Parties: John A. INFANTOLINO v. STATE. A.
• Court: Rhode Island Supreme Court

Page 793

414 A.2d 793

John A. INFANTOLINO v. STATE.

No. 79-437-C.A.

Supreme Court of Rhode Island.

May 12, 1980.

Joseph A. Bevilacqua, Jr., Providence, for petitioner.

Dennis J. Roberts, II, Atty. Gen., Maureen E. McKenna, Sp. Asst. Atty. Gen., for respondent.

OPINION

MURRAY, Justice.

The applicant John Infantolino appeals pursuant to G.L.1956 (1969 Reenactment) § 10-9.1-9, as enacted by P.L.1974, ch. 220, § 3, from a Superior Court justice's denial of his application for postconviction relief from his conviction in January 1975 of second-degree murder. ¹ In light of our subsequent ruling in In re John Doe, R.I., 390 A.2d 920 (1978), Infantolino contends that at his trial the judge instructed the jury incorrectly because the instructions placed the burden of proof on the issue of self-defense upon him. The applicant argues that our ruling in Doe must be given retroactive effect and claims, therefore, that the denial of his postconviction relief application should be reversed. The record on this appeal consists essentially of the trial transcript transmitted to this court on the applicant's unsuccessful appeal reported in State v. Infantolino, 116 R.I. 303, 355 A.2d 722 (1976). We restate the facts digested in that opinion insofar as they are pertinent to this appeal.

On April 13, 1974, Charles Neves and his friend William Mammone went to a nightclub to celebrate Neves's change of jobs. During the evening they each took a seat at the bar adjacent to Doris Bajakian. Doris's sister Diane, who was Infantolino's girlfriend, was seated at a table to the rear of the three chairs. Shortly after midnight, Infantolino entered and took Doris's seat; she sat on his lap. The applicant engaged in a conversation that involved both sisters and, intermittently, Neves and Mammone.

Just before 2 a. m. Neves apparently said something offensive to applicant because Infantolino hit Neves with a punch that sent him to the floor. A wrestling match ensued, causing the club's bouncers to move in and separate the combatants. The management directed Neves and Mammone to leave the club by the front door, while a bouncer escorted applicant to a side exit. Once Infantolino appeared to regain his composure, he was ordered to leave by the side exit.

Concern about the possibility of the renewal of the fist fight prompted Neves and Mammone to ask Infantolino's girlfriend to accompany them outside. Neves, the first down the front stairs, was waiting on the sidewalk for Mammone and Diane Bajakian to join him when Infantolino came around the corner from the side exit. Mammone testified that he was standing on the front steps when Infantolino asked, "Where is he?" and Mammone pointed to the bottom of the stairs and said, "There he is." According to Mammone, Infantolino strode toward Neves, who immediately assumed a boxer's stance. Infantolino, however, pulled a pistol from his waistband and shot Neves twice. Neves stumbled and ran down the street to the next block, where he turned and continued for fifty feet before collapsing onto the sidewalk. Infantolino and Mammone ran along the street after him. Two police officers quickly arrived on the scene, and one captured Infantolino after a short chase on foot.

Neves died following emergency surgery. The medical examiner who performed an autopsy on the victim testified that the entry point of both bullets indicated that he was turning toward his right when he was shot. No one who testified denied that Infantolino struck the first blow or that he shot and killed Neves. Infantolino pleaded not guilty to the murder charge, however, alleging that the killing occurred as he was attempting to defend himself.

Infantolino's entire trial strategy revolved around the doctrine of self-defense. The applicant testified that immediately after their fight, Neves had threatened to kill him. Infantolino insisted that he drew his pistol only after he allegedly saw Neves standing on the sidewalk pointing a gun at him. He claimed that he had fired the two shots to "protect himself." Diane testified that she also saw the deceased point a "square object" at her boyfriend and that it appeared to be a gun.

Although applicant's trial counsel did not object to the trial justice's jury instructions concerning the issue of self-defense, applicant poses such an objection in this proceeding. ² The applicant contends that the instructions to the jury which placed the burden upon him to establish by a preponderance of the evidence that he acted in self-defense deprived him of his right to due process, as enunciated in In re John Doe, R.I., 390 A.2d 920 (1978).

Preliminarily, we must determine whether our review of the trial justice's charge regarding self-defense is appropriate when trial counsel did not object to the charge. "Under our established procedure, (applicant's) failure to object to the instruction given or to request a different one precludes, at least in ordinary circumstances, a challenge to the correctness or sufficiency of the charge given." State v. McGehearty, R.I., 394 A.2d 1348, 1351 (1978). We have ruled, however, that review of an alleged deprivation of a basic constitutional right "should be available if the failure to comply with the procedural requirement is not a 'deliberate bypass,' if it does not constitute 'sandbagging' by a defense lawyer, and if the record discloses that the breach complained of will constitute something more than harmless error." (footnote omitted) Id. 394 A.2d at 1352; see State v. Roderick, R.I., 403 A.2d 1090, 1092 (1979).

There is no question that applicant claims deprivation of a basic constitutional right. The due-process clause protects criminal defendants by requiring that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Until our ruling in In re John Doe, a defendant in this state who sought to justify a killing by a plea of self-defense had to prove that defense by a preponderance of the evidence. See State v. Ballou, 20 R.I. 607, 40 A. 861 (1898). In In re John Doe we ruled in light of Mullaney v. Wilbur, supra, that that burden violated the due-process clause of the Fourteenth Amendment to the United States Constitution because the defense of self-defense necessarily negates an element of the crime of murder, as defined by G.L.1956 (1969 Reenactment) § 11-23-1. ³ We therefore held that once a homicide defendant introduces some evidence of self-defense, the burden of persuasion is on the prosecution to disprove that defense beyond a reasonable doubt. In re John Doe, 390 A.2d at 926. It is that basic right protected by the due-process clause which applicant asserts in this proceeding.

The applicant's challenge does not raise an issue of trial strategy. Infantolino's trial antedated both the Supreme Court's ruling in Mullaney v. Wilbur, supra, and our ruling in reliance on Mullaney of In re John Doe, supra. Compare State v. Duggan, 414 A.2d 788, (R.I., 1980). The instructions at applicant's trial concerning the burden and quantum of proof of self-defense were in full accord with the law then prevailing. See State v. Ballou, supra (overruled by In re John Doe, supra ). In such a situation, a trial strategist would have to have been exceptionally clairvoyant.

Under the assumption that the rule enunciated in In re John Doe, supra, applies retroactively, the state argues that even if the trial justice failed to give proper instructions, it is harmless error beyond a reasonable doubt. Our review of the record causes us to disagree; the evidence demanded a charge of self-defense. The trial justice's error is the type that " ' "substantially impairs its (criminal trial's) truth-finding function and so raises serious questions about the accuracy of (the guilty verdict) * * *. " ' " Hankerson v. North Carolina, 432 U.S. 233, 243, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306, 316 (1977). We cannot say beyond a reasonable doubt that an error regarding the burden and quantum of proof of self-defense did not affect the jury's verdict. See Connolly v. Commonwealth, --- Mass. ---, ---, 387 N.E.2d 519, 526 (1979); Palmigiano v. Houle, 618 F.2d 877, 883, (1st Cir. 1980).

For these reasons we conclude that our review of applicant's contentions in this case is appropriate. In so concluding, we are not...