Jefferson v. State

• Decision Date: 02 March 1984
• Docket Number: No. 81-238-C,81-238-C
• Citation: 472 A.2d 1200
• Parties: Leonard C. JEFFERSON v. STATE. A.
• Court: Rhode Island Supreme Court

Page 1200

472 A.2d 1200

Leonard C. JEFFERSON v. STATE.

No. 81-238-C.A.

Supreme Court of Rhode Island.

March 2, 1984.

Leonard C. Jefferson, pro se.

Dennis J. Roberts II, Atty. Gen., Sharon P. O'Keefe, Sp. Asst. Atty. Gen., Chief, Appellate Div., for respondent.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal from a judgment denying postconviction relief sought on the basis of the petitioner's claim that the trial justice, in his rulings, committed errors that were prejudicial and deprived him of his right to a fair trial.

After due consideration and deliberation, the trial justice denied petitioner relief. He is now before us on appeal. In addition, petitioner seeks review of the trial justice's March 28, 1980 denial of his motion to assign for further oral testimony. We affirm.

The petitioner was convicted by a Superior Court jury of the murder of Virginio DeFusco, his seventy-nine year old landlord. He was sentenced to life imprisonment. The indictment returned charged petitioner with murder and robbery. However, the trial justice granted petitioner's motion for judgment of acquittal on the robbery charge. The petitioner's murder conviction was affirmed by this court in State v. Jefferson, 116 R.I. 124, 353 A.2d 190 (1976).

Evidence disclosed that on the evening of the murder, petitioner had been drinking with David Jones, a neighbor of petitioner's in the building in which he was living. During the course of the day they had consumed several pints of whiskey. Jones testified that while drinking together petitioner told him he was "going to rip the landlord off." The petitioner left Jones's apartment sometime after conveying this information to Jones. Jones testified that he then fell asleep but was awakened by the sound of scuffling or stomping in the hallway. Jones left his apartment and went into the hallway where he saw petitioner kicking DeFusco at the bottom of the stairs. Jones returned to his apartment but shortly thereafter went back out into the hallway. The second time, he saw petitioner standing over DeFusco's body rummaging through some papers. The petitioner then ordered Jones downstairs where petitioner gave Jones $20 and told him to keep his mouth shut. Subsequently, petitioner and Jones left the house and went to an Elmwood Avenue liquor store where they purchased more liquor. An autopsy revealed that DeFusco's death resulted from a brain hemorrhage caused by a blunt trauma. The Medical Examiner testified that DeFusco's head injuries were consistent with those caused by kicks or punches. The petitioner complained of a swollen right hand shortly after his arrest. X-rays revealed a fracture. The petitioner told police he sustained the injury at work.

At trial, Pearl, Jones's common-law wife, testified that when she went out into the hallway that evening to bring in her cat, she saw DeFusco lying in a pool of blood at the foot of the stairs. She also testified that petitioner was standing only a few steps away. Pearl's brother Hawkins, also a tenant in the building, testified that when he went into the hallway, roughly an hour before DeFusco was murdered, he turned on a light switch near the stairway. The petitioner then appeared and shut off the lights, telling Hawkins he wanted things quiet because he had "something going."

We will now proceed to consider each of the issues raised by petitioner in his appeal of the Superior Court justice's denial of postconviction relief.

On appeal petitioner raises several questions: (1) whether his conviction for felony murder was a violation of double jeopardy or collateral estoppel; (2) whether the trial justice's supplemental charge to the jury was a violation of due process, prejudicing petitioner; (3) whether his conviction was in violation of the United States and Rhode Island Constitutions since it was allegedly based on testimony the prosecutor should have known to be false when presented; (4) whether he was denied his right to a fair trial by the failure of the Attorney General to look into the alleged perjury of three state witnesses pursuant to the trial justice's order in ruling upon petitioner's motion for a new trial; (5) whether there was sufficient evidence offered at trial to sustain the jury's verdict of guilty beyond a reasonable doubt; and (6) whether the racial composition of the grand jury that indicted petitioner violated his equal-protection rights under the United States Constitution. In addition, we will consider the trial justice's denial of petitioner's motion to assign for further oral testimony.

I

The petitioner claims that the Superior Court justice erred when ruling that the principles of double jeopardy and collateral estoppel were not pertinent to petitioner's conviction for felony murder. The petitioner was indicted for both robbery and murder. At trial, the trial justice granted petitioner's motion for judgment of acquittal on the robbery count. He then proceeded, however, to instruct the jury on felony murder. Specifically, he informed the jury that the unlawful killing of another in the course of an attempted robbery constitutes felony murder. He further instructed the jury on the elements of attempted robbery. The jury then found petitioner guilty of first-degree murder. The petitioner's claim is that having been acquitted on the robbery charge, he could not then have been found guilty of felony murder based upon the underlying felony of attempted robbery. The finding, petitioner claims, was in violation of double jeopardy and collateral-estoppel principles.

The trial justice's instruction was proper. Murder in the first degree is statutorily defined in G.L.1956 (1981 Reenactment) § 11-23-1 to include murder "committed in the perpetration of, or attempt to perpetrate any arson, * * * rape, burglary or robbery * * *." It is clear from a reading of the statute that the attempt to commit any of the enumerated felonies may serve as a distinct underlying felony for invoking the felony-murder rule. Moreover, the fact that the prosecution failed to prove a case of robbery against petitioner did not preclude the state from making out a prima facie case of attempted robbery. Pursuant to G.L.1956 (1981 Reenactment) § 12-17-14,

"[W]henever any person is tried upon an indictment, information, or complaint and the court or jury, as the case may be, shall not be satisfied that he is guilty of the whole offense but shall be satisfied that he is guilty of so much thereof as shall substantially amount to an offense, of a lower nature, or that the defendant did not complete the offense charged, but that he was guilty only of an attempt to commit the same, the court or jury may find him guilty of such lower offense or guilty of an attempt to commit the same * * *."

It is clear that under § 12-17-14 attempted robbery is a lesser-included offense within the crime of robbery. State v. Saccoccio, 50 R.I. 356, 361, 147 A. 878, 880 (1929); State v. Shapiro, 29 R.I. 133, 137, 69 A. 340, 342 (1908). Having shown this, it was not necessary for the state to prove every charge contained in the indictment but only to prove that the accused was guilty of a crime contained in the indictment even if it was the lesser-included offense of attempted robbery. The evidence was sufficient to support the jury instruction on attempted robbery.

The instant case is distinguishable from State v. Innis, 120 R.I. 641, 391 A.2d 1158 (1978), rev'd on other grounds, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), on remand, 433 A.2d 646 (1981). In Innis, this court held that it was a violation of double jeopardy to sentence the defendant for the underlying felony of robbery where that felony also served as the predicate for his felony-murder conviction. 120 R.I. at 658, 391 A.2d at 1167. In the present case, petitioner is not being punished separately on the guilty finding of attempted robbery. Rather, it serves as the underlying felony for his felony-murder conviction.

II

The petitioner next argues that the trial justice's supplemental charge to the jury constituted reversible error. During jury deliberations, the jury foreman submitted two questions to the trial justice. The questions concerned the scope of the felony-murder rule. It is apparent from a reading of the questions that the jury was confused over the application of the felony-murder rule. Addressing the matters raised in the two questions, the trial justice gave his supplemental charge to the jury. The petitioner did not object to the charge at trial. The petitioner claims that despite his failure to object, the trial justice committed error in failing to inform the jury that they could find petitioner guilty of any lesser-included homicide offenses if they were to find that the homicide did not occur during an attempted robbery.

General Laws 1956 (1969 Reenactment) § 8-2-38 requires a trial justice in every case, civil or criminal, that is "tried in the [S]uperior [C]ourt with a jury, [to] * * * instruct the jury in the law relating to the same * * *." It is a fundamental proposition that a defendant is only entitled to a charge on a lesser degree of homicide when the evidence would support a finding on a lesser degree of the offense. State v. Goff, 107 R.I. 331, 336, 267 A.2d 686, 688 (1970); State v. Hathaway, 52 R.I. 492, 502, 161 A. 366, 370 (1932). After reviewing the evidence adduced at trial, it must be concluded that the trial justice did not err in giving his supplemental charge by failing to charge on the lesser-included homicide offenses. There was no evidence offered to support a second-degree-murder or manslaughter charge. If the jury had not found petitioner guilty of first-degree murder, they would have had to find him not guilty.

Moreover, petitioner's failure to object to the charge at trial constitutes a waiver and it thus precludes him from claiming error for the first time on appeal. Review is available, only when it can be shown that the alleged...