State v. Andriotto

• Citation: 167 W.Va. 501,280 S.E.2d 131
• Decision Date: 13 July 1981
• Docket Number: No. 14330,14330
• Parties: STATE of West Virginia v. Ronald J. ANDRIOTTO.
• Court: Supreme Court of West Virginia

Page 131

280 S.E.2d 131

167 W.Va. 501

STATE of West Virginia v. Ronald J. ANDRIOTTO.

No. 14330.

Supreme Court of Appeals of West Virginia.

July 13, 1981.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where

the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. pt. 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).

2. The obligation of police to warn a suspect of both his right to counsel and his right against self-incrimination applies only to custodial or other settings where there is a possibility of coercion.

3. Where appellant neither alleges nor demonstrates any actual prejudice as a result of the trial court's refusal to grant a continuance, that refusal will not constitute reversible error.

4. "A new trial on the basis of newly-discovered evidence will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side. However, when the newly-discovered impeachment evidence comes within the following rules, a new trial will be granted: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) The facts must appear in his affidavit that the party was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) The evidence must be new and material, and not merely cumulative. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits." Syl. pt. 2, State v. Stewart, W.Va., 239 S.E.2d 777 (1977).

Sterl F. Shinaberry, Hostler & Shinaberry, Charleston, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.

NEELY, Justice:

This is an appeal from a conviction of being an accessory before the fact to kidnapping in the Circuit Court of Monongalia County. While there are a few technical errors which we will need to address, this case was very competently tried in the circuit court and the primary question is whether there is sufficient evidence to convict the appellant, Ronald J. Andriotto. While the primary witness for the State of West Virginia was himself a convicted felon, an indicted co-conspirator, and generally a person of bad character, nonetheless, upon a thorough reading of the entire transcript the Court is convinced that there is sufficient, persuasive, corroborating circumstantial evidence to justify a jury verdict of guilty. Consequently, we affirm.

On 1 July 1976, Martin Piribek, Executive Vice-President of the First National Bank of Morgantown, left for work at approximately 9:00 o'clock. His wife, Rachael, went down to the laundry, did some work, and then went up to the bedroom. Shortly after 9:00 o'clock the doorbell rang and when Mrs. Piribek answered the door she found a man standing on the porch who said he was an insurance investigator and needed to come in to get some information. Mrs. Piribek asked for identification but at the same time released the door latch. The man immediately forced the door open, clamped his hand over Mrs. Piribek's face, and another man stepped forward and followed him through the door.

The men pushed Mrs. Piribek to the floor and informed her that if she failed to remain silent they would blow her brains out. They took Mrs. Piribek back to the bedroom at gunpoint and made a telephone call to Mr. Piribek's bank. The substance of the telephone call was that Mr. Piribek should take the sum of $300,000 to a telephone booth located at a specific place in an area in Morgantown known as the "mileground" and that if he failed to follow their directions, they would kill Mrs. Piribek. One of the men then ripped all of the telephones out of the wall, handcuffed Mrs. Piribek's hands behind her back, and then linked a second set of handcuffs through the first set and attached the second set to her ankles. The men then departed the Piribek residence leaving Mrs. Piribek on a bed in the bedroom. Hours later the police released Mrs. Piribek and the ransom was never paid.

The police had known that some effort to rob a Morgantown bank was being planned for at least two weeks. An inmate of the Kennedy Youth Center (a federal correction facility) named Gary Fields had informed Unit Manager Alex Komons, who informed West Virginia authorities that a bank robbery was being planned. Almost immediately after the crime occurred, West Virginia State Police officers knew that James Wallace Smith, 23, a former Kennedy Center inmate then in the Atlanta area, knew about the kidnapping. The State Police immediately dispatched one of its troopers to Atlanta where Smith was interrogated by federal, Georgia, and West Virginia law enforcement officials.

Smith said that he had met the appellant 3 June 1976 when he started to work at Andriotto's car wash, the Jet Car Wash located in Morgantown. According to Smith, Andriotto took a liking to Smith and began to confide in him. Andriotto related that he was in a difficult financial position, that his business was going downhill, and that he was in trouble with the Internal Revenue Service over his taxes. Smith told the police at his interrogation in Atlanta that Andriotto had conceived the scheme of kidnapping Mrs. Piribek and that he had requested that Smith participate in the crime with him and two other associates. Furthermore, Smith related to the police an elaborate story, including names and places which if true, would conclusively demonstrate that Andriotto was the instigator, procurer, and chief executive officer of the kidnapping enterprise.

In order to corroborate Smith's story, the Georgia Bureau of Investigation requested that Smith telephone Andriotto on the official Georgia police telephone and attempt to elicit incriminating statements from him. Smith agreed to cooperate, the telephone conversation occurred, and the Georgia police recorded the entire conversation on tape. This tape was later introduced at trial and played for the benefit of the jury. While Andriotto did not actually admit his involvement in the crime on the tape, it is obvious that Andriotto had had a relationship with Smith well above and beyond the normal relationship that would exist between an employer and a low-wage, itinerant, work-release laborer. The evidence at trial indicated that Smith could not possibly have worked more than twelve working days for Andriotto, and the tape demonstrates that Andriotto was seriously concerned about Smith's testifying against him.

Andriotto's reaction to Smith's suggestion on the tape that Smith might be compelled to implicate Andriotto if the police put pressure on him is not the reaction of an innocent man. The impression which one gets from reading a transcript of the tape is that Andriotto was torn between two conflicting concerns: first, he was obviously aware of the possibility that the conversation was being taped since the police had already questioned him about the crime; second, he felt an urgent need to communicate to Smith his conclusion that if Smith would keep quiet there would be no trouble from the authorities. Most importantly, Andriotto's statements and assurances to Smith were not those of an innocent man to a blackmailer, though Andriotto later claimed Smith had tried to blackmail him.

At trial the State's star witness was James Smith who was given immunity from prosecution for his testimony. He testified that Andriotto planned the crime, and solicited the help of a man known as "Big John" Galayda who lived across the West Virginia border in Pennsylvania. According to Smith, Andriotto and Galayda met on a number of occasions and on one occasion Andriotto, Galayda, Smith, and two of Galayda's associates, one Roger Brooks and one Carl Salvcci went to Andriotto's apartment for the purpose of planning the crime. The State introduced evidence that around the time of the crime Andriotto placed sixteen long distance, paid telephone calls to Galayda's residence; however, Andriotto explained those calls by alleging that he was trying to sell his car wash to Galayda. The men who actually perpetrated the kidnapping were never prosecuted and Galayda was not called as a witness at trial. Furthermore, Mrs. Piribek was unable to give a sufficiently...