State v. Ambrosino
| Decision Date | 10 December 1974 |
| Docket Number | No. 147-E,147-E |
| Citation | 329 A.2d 398,114 R.I. 99 |
| Parties | STATE v. Louis AMBROSINO. x. |
| Court | Rhode Island Supreme Court |
This is a criminal complaint, charging the defendant, Louis Ambrosino, with assault and battery. The matter was tried to a justice of the Superior Court sitting with a jury on January 19, 1961, and the defendant was found guilty. The defendant's subsequent motion for a new trial was denied, and he is now prosecuting a bill of exceptions in this court.
It appears from the evidence that on November 18, 1959, defendant engaged in a scuffle with Arthur Votolato, Sr., a member of the Rhode Island Bar, on Dyer Street in the city of Providence. According to the testimony, defendant had called Votolato a thief and struck him with his fists, knocking him to the ground. The defendant, on the other hand, denied that he had struck Votolato and asserted that Votolato had repeatedly struck him on the chest and stomach.
The defendant contends, first, that the trial justice erred in denying his motion for a new trial on the ground that the jury did not complete its deliberations and reach a verdict in the secrecy of the jury room. The record discloses that after the jury had retired, it was brought back to the courtroom to permit it to address two questions to the trial justice. After the questions had been answered, the court informed the jury that it could return to the jury room for further deliberations. Apparently, some representation was made that the jury had already reached a verdict, as is indicated by the trial justice's question:
The clerk then proceeded to inquire of the jury's foreman if the jorors had agreed upon a verdict, which inquiry was answered in the affirmative. Upon further inquiry as to whether the verdict was guilty or not guilty, the foreman of the jury answered, 'Guilty.' At that point, as the trial justice states in his decision denying the motion for a new trial, defendant made no request to poll the jury, nor was there any dissenting voice heard from the jury, nor did defendant or his counsel object in any manner to the return of the verdict. The trial justice then proceeded to excuse the jury. The statements of the trial justice in the decision are corroborated by the record.
The thrust of defendant's argument is that, the jury being in the custody of the court, it was the obligation of the trial justice acting on his own initiative to order the jury to return to the jury room to complete its deliberations and to reach a verdict. It is clear from this argument that the issues defendant was raising on his motion for a new trial involved an error or errors of law occurring during the trial. However, under our statute 1 a new trial after verdict may not be granted by a justice of the Superior Court for errors of law occurring at the trial. Guarantee Food Co. v. Burke, 43 R.I. 535, 113 A. 789 (1921); State v. Papa, 32 R.I. 453, 80 A. 12 (1911).
However, errors of law occurring during trial will be reviewed by this court when brought before it by an exception on the record. In the peculiar circumstances, here, it was incumbent upon defendant to request the court to rule upon the propriety of the action of the jury in returning the verdict in the manner that it did. If such ruling were adverse, defendant could then bring it before this court by way of an exception. It is only in this manner that a legal objection to a ruling relating to a specific issue may be brought here for review by this court. Nothing in the record discloses that defendant sought a ruling or in any manner took an exception to such a ruling. Absent such an exception taken from a specific ruling, there is nothing for us to review. State v. Quattrocchi, 103 R.I. 115, 235 A.2d 99 (1967); State v. Ruggiero, 93 R.I. 241, 147 A.2d 555 (1961); see Manekofsky v. Baker, 92 R.I. 377, 169 A.2d 376 (1961).
The defendant also contends that the trial justice erred in failing to accept and act on an affidavit of a juror, who stated therein: '* * * the verdict of Guilty was not my vote.' This affidavit, dated February 1, 1962, was presented to the trial justice at the hearing on defendant's motion for a new trial on February 2, 1962. Although the affidavit is included with the papers of the case, it is conceded by defendant that the court refused to consider it and ordered it placed in the file for the benefit of this court.
Again, the record discloses that there is no exception before us challenging any ruling made by the trial justice concerning the affidavit. The defendant should then have taken an exception on the record and opened the way for a review of the trial justice's action in this court. Nothing in the record discloses that any appropriate action was taken, and no exception was reserved for review in this court. Therefore, there is nothing before us to review here. State v. Quattrocchi, supra.
The defendant further contends that his sixth amendment right to the assistance of counsel was violated by the trial court. One of his sixth amendment arguments arises from his belief that at the time the decision on his motion for a new trial was handed down he was without the assistance of counsel. The record discloses that he was represented during the trial by counsel, who filed a motion for a new trial and argued that motion on February 2, 1962. Thereafter, at some unspecified time trial counsel died, but on October 24, 1963, on defendant's motion, the trial justice designated the Public Defender to serve as his counsel. The defendant, in pressing this contention, concedes that he reserved no exception to any ruling of the court relating to his right to the assistance of counsel. However, he argues correctly that this court in State v. Quattrocchi, supra, indicated that the procedural rule laid down in Quattrocchi concerning the necessity for the reservation of an exception to a specific ruling in order to obtain a review thereof in this court would not be enforced if it would serve to deprive a defendant of a constitutionally protected right. 2
At this point it becomes important to note that the relaxation of the procedural requirement suggested in Quattrocchi should be given a narrow application. The exception applies only where a defendant failed to reserve an exception to some specific challenged ruling of the court. In other words, this court will review a specific ruling or decision of the trial court which the defendant claims infringed upon his constitutional rights even though he failed to make such a ruling eligible for review here by...
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State v. Levitt
...and in the past we have occasionally entertained a claim of lack of effective counsel on direct review. State v. Ambrosino, 114 R.I. 99, 105-06, 329 A.2d 398, 401-02 (1974); State v. Desroches, 110 R.I. 497, 502-06, 293 A.2d 913, 916-18 (1972); State v. Correia, 106 R.I. 655, 664-66, 262 A.......
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State v. Tillery
...thereto at the trial court level. See State v. Ruggiero, 93 R.I. 241, 247, 174 A.2d 555, 558 (1961); see also State v. Ambrosino, 114 R.I. 99, 102, 329 A.2d 398, 400 (1974). In the instant case, upon defense counsel's objection, the trial justice gave the above-quoted supplemental instructi......
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State v. Dunn
...ineffective assistance of counsel would have been upon the defendant. State v. D'Alo, 477 A.2d 89, 91 (R.I.1984); State v. Ambrosino, 114 R.I. 99, 106, 329 A.2d 398, 402 (1974); State v. Desroches, 110 R.I. 497, 501, 293 A.2d 913, 916 (1972). That issue, serving as the basis for the trial j......
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Delahunt v. State, 81-100-C
...State and Federal Constitutions entitle an indigent defendant to effective assistance of counsel and a fair trial. See State v. Ambrosino, 114 R.I. 99, 329 A.2d 398 (1974). Our standard focuses on the record to determine whether the defense counsel failed to render "reasonably effective ass......