State v. Andujar

• Citation: 899 A.2d 1209
• Decision Date: 24 May 2006
• Docket Number: No. 2004-343-C.A.,2004-343-C.A.
• Parties: STATE v. Jose A. ANDUJAR.
• Court: United States State Supreme Court of Rhode Island

Page 1209

899 A.2d 1209

STATE v. Jose A. ANDUJAR.

No. 2004-343-C.A.

Supreme Court of Rhode Island.

May 24, 2006.

COPYRIGHT MATERIAL OMITTED

Diane Daigle, for Plaintiff.

Marie T. Roebuck, Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Chief Justice WILLIAMS, for the Court.

The defendant, Jose A. Andujar (defendant), appeals his conviction in the Superior Court for criminal solicitation of murder, in violation of G.L.1956 § 11-1-9. He insists that he cannot be guilty of criminal solicitation because the intended recipient never received the soliciting instrument. Furthermore, the defendant claims he was deprived of due process when he was precluded from presenting at trial the fact of a prior acquittal while the state was permitted to introduce evidence of precisely those charges of which he had been acquitted. Finally, he claims that his legitimate expectation of privacy under both the Rhode Island and Federal Constitutions should have worked to preclude from evidence certain items seized from his prison cell in the course of a warrantless search by prison officials, as well as the fruits of an expanded search of those items. For the reasons stated herein, we vacate the judgment of conviction, order the entry of a judgment of acquittal as to criminal solicitation, and remand the case to the Superior Court for a new trial on attempted criminal solicitation.

I Facts and Travel

In October 2001, defendant was arrested and charged with one count of burglary and three counts of first-degree sexual assault allegedly perpetrated against a female acquaintance, Donna.¹ The defendant was acquitted of these charges. It was while defendant awaited that criminal trial at the Adult Correctional Institutions (ACI) that the events of the present matter unfolded.

Sometime in August 2002, New York City Narcotics Detective Enrico Viola (Det.Viola) happened upon an already opened letter in his personal mailbox, located in a common mail area at his New York City multi-family residence. The letter was addressed to defendant's brother, Miguel Henriquez (Henriquez), a female acquaintance of whom also resided in Det. Viola's building. The disturbing contents of the letter, which included a reference to Westerly, Rhode Island, prompted Det. Viola to contact Det. Edward St. Clair (Det.St.Clair) of the Westerly Police Department.² It is undisputed that Henriquez never received or read the letter from defendant.

Detective St. Clair received a facsimile of both the letter and envelope soon after Det. Viola's call.³ Although the envelope designated Hector Rosario as the return addressee, and despite the fact that the letter itself was signed "Kid Nice," Det. St. Clair suspected defendant was the author. He explained at trial that these suspicions were informed by his involvement in a case that was currently pending against defendant involving Donna. He testified that he feared for her immediate safety.

Acting upon these suspicions, Det. St. Clair telephoned Special Investigator Stephen Mokler (Investigator Mokler) of the Special Investigation Unit at the ACI, whose job it was to investigate illegal activity at the prison. Detective St. Clair informed Investigator Mokler of the events surrounding his receipt of the suspect letter and of his suspicion that defendant was the true author of the letter. In fact, Investigator Mokler confirmed that Hector Rosario, the return addressee on the envelope, had been released from the ACI on March 4, 2002. It is uncontested that defendant was detained in the ACI when the letter was mailed.

This information spurred Investigator Mokler to check defendant's telephone records. He discovered that defendant had placed several calls to Henriquez. Since the ACI records all outgoing telephone calls, Investigator Mokler listened to several conversations between defendant and his brother, discovering nothing especially worrisome. Investigator Mokler then approached his superior and briefed him on the situation; he was told to conduct an investigation into any illegal activity.

Investigator Mokler then conducted a search of defendant's prison cell. He testified that ACI policy allows inmates' cells to be searched at any time, with or without the inmate present. Neither defendant nor Det. St. Clair was present during this search. The search yielded several papers, as well as a yellow lined legal pad. It is undisputed that Investigator Mokler never obtained a warrant either to conduct the search or to seize any item from defendant's prison cell. In September 2002, Investigator Mokler met with Det. St. Clair at the ACI and turned over both the visitors' list and the legal pad to him.

Detective St. Clair obtained a court order to collect handwriting exemplars from defendant. The defendant finally produced these samples in April 2003, under the supervision of Det. St. Clair and with the guidance of Alan Robillard (Robillard), a certified document examiner. Eventually, the exemplars and other documents— including the letter, the visitors' list and the legal pad obtained from defendant's cell, as well as another letter from defendant addressed to Donna given to Det. St. Clair by Susan, Donna's sister⁴ — were turned over to Robillard for further testing. Robillard testified that a handwriting comparison analysis led him to conclude that defendant authored the solicitation letter. Further tests performed on the legal pad seized from defendant's cell, including an indented writing analysis and a torn edge examination, prompted Robillard to testify that the solicitation could only have come from that pad of paper. No warrant was obtained prior to performing these scientific tests.

The defendant was charged by criminal information with one count of criminal solicitation of murder, in violation of § 11-1-9. Before his trial began, the state filed a motion in limine seeking to exclude evidence of defendant's previous acquittal of three counts of first-degree sexual assault. The defendant filed a written objection to this motion pro se, arguing that the trial justice should not allow the state to present evidence of these charges without permitting him to present the jury with evidence of his acquittal. The defendant also filed his own motion in limine to preclude the state from presenting evidence of these prior charges in the first place. The motion justice granted the state's motion and denied defendant's motion, explaining as follows:

"No one, no witness, no counsel, no pro se litigant will offer any witness, evidence, statement or argument that [defendant] was acquitted [of those charges]. I will instruct the jury if there's any reference to that case at all that it is totally irrelevant and immaterial as to whether or not that case has even been resolved, let alone what the result was. * * * You can't mention the outcome. That's the court's order. You can appeal me.

"* * *

"And my decision today, subject to reconsideration, is that I will allow, if the state offers, I will allow the state to provide motive evidence. I find that the motive evidence is prejudicial. However, I have also found that under the circumstances of this case, that prejudice is outweighed by probative value. I happen to weigh the equation differently than [defendant] as he sets forth in his written motion."

The motion justice similarly denied defendant's motion to suppress the products of the search of defendant's prison cell.

In addition to his motion in limine, defendant also filed, pro se, a motion to dismiss the criminal information against him for lack of probable cause pursuant to Rule 9.1 of the Superior Court Rules of Criminal Procedure. This motion was argued on May 16, 2003, at which time defendant maintained that the charges should be dismissed since Henriquez never received the solicitation letter. Despite noting the state's concession that Henriquez never did, in fact, receive the letter, the motion justice denied the motion, but admitted it was a close question.

The defendant's solicitation trial began on June 11, 2003. In its opening statement, the state wasted no time in referring to defendant's prior sexual assault charge. Defense counsel lodged no objection to this reference.

At the trial itself, the state presented numerous witnesses, three of whom testified to the relationship between defendant and Donna. First, in reference to the letter she gave to Det. St. Clair for analysis, Susan testified that she had knowledge of a prior incident between Donna and defendant. She stated that when she told Donna about the holiday greeting card from defendant, Donna "totally freaked. She said, burn it, bury it, I don't care." Susan also said that she knew there was a no-contact order between defendant and Donna. Detective St. Clair gave similar testimony. He stated that he was aware of a pending matter between defendant and Donna, and he confirmed the existence of a no-contact order between the two. Finally, in addition to testifying that he was aware of a no-contact order between defendant and Donna, Investigator Mokler also said that, on the basis of what he had learned from Det. St. Clair, he entered defendant's prison cell at the ACI to uncover any information relating to Donna. Defense counsel did not object to any of this testimony.

After the state rested its case, defense counsel entered a motion for a judgment of acquittal pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure. He leveled an identical argument to the one advanced pretrial in defendant's Rule 9.1 motion to dismiss. The trial justice again denied this motion.

The defense rested without presenting a case. In its closing argument, the state again referenced defendant's prior sexual assault charge. Defense counsel again did not object. In his charge to the jury, the trial justice cautioned the panel that "[r]emarks or statements or personal opinions expressed by counsel...