State v. Ahmadjian, s. 77-129-C

• Decision Date: 24 December 1981
• Docket Number: Nos. 77-129-C,s. 77-129-C
• Citation: 438 A.2d 1070
• Parties: STATE v. Gloria Z. AHMADJIAN, David Carlin, Jerry Pugh. A., 77-70-C.A., 77-69-C.A.
• Court: Rhode Island Supreme Court

Page 1070

438 A.2d 1070

STATE v. Gloria Z. AHMADJIAN, David Carlin, Jerry Pugh.

Nos. 77-129-C.A., 77-70-C.A., 77-69-C.A.

Supreme Court of Rhode Island.

Dec. 24, 1981.

Dennis J. Roberts, II, Atty. Gen., Kathryn A. Salmanson, Sp. Asst. Atty. Gen., for plaintiff.

John J. Bevilacqua, Providence, for defendants.

OPINION

SHEA, Justice.

In this case we consider the consolidated appeals of three defendants convicted by Superior Court jury of conspiracy and of various drug law violations. ¹

Jerry Pugh (Pugh) was convicted of conspiring to traffic in controlled substances, stolen firearms and explosives, and to enforce payments through extortion. Pugh was sentenced to five years with thirty months suspended, and five years' probation.

David Carlin (Carlin) was convicted of the same conspiracy charge as Pugh. Additionally, Carlin was convicted of unlawful possession of opium, unlawful sale of opium to James O'Connell, and unlawful delivery of hashish to James O'Connell. Carlin received a ten-year suspended sentence, a two-year sentence with a $1,000 fine, and two five-year sentences with three years suspended for each charge, respectively, two years to serve for each. All sentences were to run concurrently.

Gloria Z. Ahmadjian (Ahmadjian) was convicted of the same conspiracy charge as defendants Pugh and Carlin. Additionally, Ahmadjian was convicted of unlawful sale of marijuana to David Ormiston. Ahmadjian received a ten-year suspended sentence with ten years probation and a four-year sentence, respectively.

The defendants have raised several issues for our consideration. Initially, all three defendants contend that they were deprived of their right to confrontation guaranteed by the Sixth Amendment to the United States Constitution, and art. I, sec. 10, of the Rhode Island Constitution; defendants Pugh and Carlin claim that the trial justice erred in denying their motion to suppress tapes that were the product of participant monitoring; Pugh and Carlin claim that the trial justice erred in not suppressing the tapes that were the product of a wiretap on codefendant James E. O'Connell's telephone; Pugh and Carlin contend that the trial justice erred in denying their motions for judgment of acquittal and new trial based on alleged insufficiencies in the evidence to sustain a conspiracy conviction. Pugh and Carlin also claim that the trial justice gave erroneous instructions to the jury.

Pugh individually contends that he was denied his right of cross-examination by not being allowed to inquire into the alleged use of drugs at certain times by the state's principal witness. Pugh also argues that he was indicted by an unconstitutionally constituted grand jury. Finally, Carlin contends that he cannot be convicted for possession of a controlled substance when he has also been convicted of delivery of the same substance.

We shall consider each of these issues after first reviewing the facts. The evidence in this case came largely from the testimony of the state's principal witness, David E. Ormiston (Ormiston). An unindicted coconspirator, he testified at length regarding a large-scale drug, weapons and extortion conspiracy in which he had become involved. He identified the ringleaders of this conspiracy as James E. O'Connell and, to a lesser extent, Ahmadjian whom he had first met socially in November 1974. According to Ormiston, he met socially with O'Connell and Ahmadjian approximately fifteen times between November, 1974 and January 8, 1975. During one five-day period they stayed at his apartment. He testified that he did not become aware of the existence of Whitebird Corporation (Whitebird), a corporation established to effectuate the illegal designs of the conspiracy, until January 8. Ormiston claimed it was not until that date that he became aware that O'Connell and Ahmadjian were involved in the trafficking of drugs and other commodities, and that Whitebird was incorporated to "launder" illegally obtained money.

O'Connell's reason for telling Ormiston about the illegal activities was that O'Connell wished to bring Ormiston into the corporation as a "vice president." The president of the Whitebird Corporation at the time was O'Connell. Ormiston said he was chosen for vice president because he was told that he possessed the necessary criteria to be a Whitebird executive, that is, "no criminal record; (he) would not attract attention; he was respected in the community; he was dependable-not flaky."

Approximately one week after Ormiston had been asked to join Whitebird, he contacted a friend in the State Police, Trooper Gordon Allison (Allison), and told him about his situation. Allison did not contact his superiors immediately because he said he had no proof to substantiate Ormiston's story. On February 22, 1975, Ormiston gave Allison a small quantity of opium which he said was given to him by O'Connell. Three days later, Ormiston and Allison met with Sergeant Sullivan and Detectives Osediacz and Reali of the State Police and turned the opium over to them. From this point on, Ormiston became an informant for the State Police as they investigated the Whitebird conspiracy. His activities and telephone conversations were monitored with his knowledge and consent. He was instructed by the State Police to obtain samples of any narcotic substances available. Ormiston's role as an informant continued until May 14, 1975, when a grand jury handed down indictments against twenty-nine alleged conspirators, including the three defendants.

Regarding defendant Pugh, Ormiston said that they first met on February 6, 1975, at O'Connell's home. At this meeting, Ormiston, O'Connell, and Pugh discussed a prospective marijuana deal and the possibility of Pugh obtaining weapons from a friend of his in the Boston area. A subsequent meeting on the proposed marijuana sale was held on February 26. Next, on April 30, Ormiston and O'Connell went to Pugh's apartment in Brighton, Massachusetts, for the purpose of picking up 200,000 amphetamine tablets. Ormiston and O'Connell left with the tablets, and Ormiston eventually delivered a sample of the tablets to the State Police. ²

Ormiston testified that on February 27, 1975, defendant Carlin came to O'Connell's house and met with O'Connell and him. In the rear bedroom of the house, in Ormiston's presence, Carlin paid O'Connell $1,200 for a drug-related debt and told O'Connell that he had access to more opium if there was a market for it. Ormiston assured Carlin that there was such a market. Carlin left the house and returned within a short time with three more ounces of opium. A sample of the opium was turned over to the State Police by Ormiston.

Next, on May 8, 1975, Carlin once again went to O'Connell's house and met with O'Connell, Ahmadjian, and Ormiston. This time, according to Ormiston, Carlin handed O'Connell two ounces of hashish which were passed to Ahmadjian for inspection and then back to O'Connell. O'Connell then gave Carlin a sum of money. Ormiston procured two grams of the substance from O'Connell and later turned it over to the State Police.

David Ormiston's testimony was crucial to the prosecution in presenting its case. Ormiston had initially made the State Police aware of the existence of the conspiracy, he allowed his conversations with defendants to be monitored, he obtained numerous samples of illegal narcotics, and through his testimony he tied together the various strands of the conspiracy. Under cross-examination by defense counsel, however, there came a time when Ormiston invoked the Fifth Amendment. He refused to answer any questions concerning his own involvement in the illegal conspiracy from the time when he first met O'Connell and Ahmadjian in November 1974 to the time when he became an informant for the State Police near the end of February 1975. The trial justice sustained each objection to such questions and accepted each of Ormiston's invocations of the privilege against self-incrimination.

I

The defendants argue that exposing any participation by Ormiston in the conspiracy prior to his role as an informant would enable them to show bias on his part. It is their position that Ormiston was so deeply involved in the Whitebird conspiracy that he would fabricate testimony implicating others in order to exonerate himself. Their inability to cross-examine Ormiston on this point is the basis of their contention that as defendants they were deprived of their right to confrontation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Let us consider first the propriety of Ormiston's claim of the privilege against self-incrimination and then whether he waived the privilege by testifying on direct.

When Ormiston was asked on cross-examination about his own involvement in the Whitebird conspiracy, he could properly refuse to answer if such answer would incriminate him. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). The trial justice made no inquiry into Ormiston's reasons for invoking the privilege. Such inquiry was unnecessary in this case because it was evident from the nature of the questions that an answer would probably be incriminating. The questions asked Ormiston directly whether or not he participated in any illegal activities prior to his becoming an informant. ³

Once it is clear from the implications of the question in the setting in which it is asked that a responsive answer to the question or an explanation why it cannot be answered might be dangerous because an injurious disclosure could result, it is "the duty of the court to refrain from placing upon the witness the burden of establishing the incriminatory nature of responses to the question by making disclosures that in themselves would be incriminatory." State v. Hasney, 115 R.I. 210, 213, 341 A.2d 729, 731 (1975).

We conclude also that Ormiston did not waive his Fifth Amendment privilege when he testified on direct examination. To effect a...