State v. Anthony, 78-360-C

• Decision Date: 18 November 1980
• Docket Number: No. 78-360-C,78-360-C
• Citation: 422 A.2d 921
• Parties: STATE v. William ANTHONY. A.
• Court: Rhode Island Supreme Court

Page 921

422 A.2d 921

STATE v. William ANTHONY.

No. 78-360-C.A.

Supreme Court of Rhode Island.

Nov. 18, 1980.

Dennis J. Roberts, II, Atty. Gen., Joel D. Landry, Asst. Atty. Gen., for plaintiff.

John A. MacFadyen, III, Chief Appellate Defender, Janice M. Weisfeld, Asst. Public Defender, Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal by the defendant, William Anthony, from the judgments of conviction entered after a jury trial in the Superior Court. The jury returned guilty verdicts on five felony counts under indictment No. 75-249: (1) the murder of Scott Prescott while in the commission of a robbery in violation of G.L. 1956 (1969 Reenactment) § 11-23-1; (2) conspiring to rob Scott Prescott in violation of § 11-1-1 and § 11-39-1; (3) the robbery of Scott Prescott in violation of § 11-39-1; (4) the possession of a firearm during the commission of a crime of violence in violation of § 11-47-3; and (5) the possession of a firearm after having been convicted of a crime of violence in violation of § 11-47-8.

The indictment also named Dennis Martin (Dennis) and Gail Ciampanelli (Gail) with defendant. Additionally, in the conspiracy count of the indictment, one Raymond Mandarelli, Jr., (Raymond) was named as an unindicted coconspirator.

Prior to trial, the trial justice granted the state's motion to sever Gail's trial on the basis that she would testify against defendants Anthony and Dennis. On February 4, 1977, however, Dennis changed his plea to guilty on all counts. With respect to defendant Anthony, trial commenced before a jury on February 1, 1977. The jury returned guilty verdicts on all counts of the indictment. Judgments of conviction were entered, and defendant appeals from these judgments. ¹

On January 8, 1975, after responding to a complaint of a shooting, officers of the Providence police department found the body of an adult male on the floor of a first level apartment on Oak Street. Subsequently the medical examiner at the scene pronounced the victim dead, determining that the death was a homicide caused by a shotgun wound of the chest.

The testimony developed at trial established that the victim, Scott Prescott, had attempted to sell a pound of marijuana to Dennis and Gail at the home of Edward Tevyaw. Also present at the Tevyaw home on the evening of January 8, 1975, were Tevyaw's wife Lori, Yvonne Tevyaw, Doris and Margaret Owens, Steve Wooten, and Lorraine McMahon. These witnesses all testified that at approximately 8:30 p. m., two masked men kicked in the door of the apartment, entered, and ordered everyone to lie on the floor. One of the masked men brandished a gun about two feet eight inches long while the other masked man stood in the doorway empty-handed. It was further established that words were exchanged between the man with the gun and the victim. It was at that point that the gunman shot the victim, Prescott, and then fled out the doorway with his companion. These witnesses, however, were unable to identify defendant as one of the masked men.

Gail and Raymond were called to testify on behalf of the prosecution. Essentially their testimony established that, together with defendant and Dennis, they agreed to set up a purchase of marijuana from the victim at the Tevyaw home. The plan conceived by the group called for Dennis and Gail to signal defendant and Raymond by flipping on the light in the bathroom after negotiating the sale. Then, defendant and Raymond would come to the apartment and steal the marijuana. Gail identified defendant as one of the masked intruders, stating that she had seen him don a ski mask shortly before she entered the Tevyaw home.

During cross-examination of the witness Gail, the facts were disclosed that she was charged with murder, conspiracy to rob and robbery stemming from the January 8 incident. Moreover, her testimony revealed that if she cooperated with the prosecution and testified against defendant, the court would not impose a sentence in excess of five years for all charges. The testimony further revealed that Gail had been charged with harboring for an act unrelated to the present crime and that this charge was still pending. When defendant's attorney attempted to cross-examine her abut whether she received a promise of leniency with respect to the harboring charge, the trial justice, after conducting a voir dire, denied defendant's request. In making this determination, the judge found no relevant nexus between the pending charge of harboring and the witness's appearance for the prosecution which connection would allow "the jury to suppose that the outstanding charge might affect the witness's credibility."

The issues on appeal are these: (1) whether the trial justice violated defendant's right to confrontation as guaranteed by the Sixth Amendment and due process clause of the United States Constitution and similar provisions of the Rhode Island Constitution by not allowing defendant to examine the witness about a previous criminal charge still pending resolution in order to establish bias or prejudice on the part of that witness and (2) whether the trial justice's failure to apply the "rule of lenity" in imposing separate sentences for both the murder and the possession of a firearm after a previous conviction of a crime of violence was error.

I

We shall address initially the issue of whether the trial justice, on cross-examination, should have allowed defendant to question or examine the witness concerning the pending charge of harboring. The defendant argues that according to the rules of evidence, and as a matter of constitutional right, he has a right to cross-examine Gail with regard to the pending charge. Furthermore, defendant contends that he should be allowed to direct this inquiry toward any and all pending criminal charges for the purpose of completely exposing the witness's motive or bias for testifying.

The United States Constitution's Sixth Amendment right of confrontation guarantees an accused the right to an effective cross-examination in all criminal matters. It is the principal means by which the credibility of the witness and the truthfulness of his testimony can be tested. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965). In a state criminal proceeding, this right is secured through the Fourteenth Amendment as well as through the Rhode Island Constitution. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Myers, 115 R.I. 583, 350 A.2d 611 (1976); R.I. Const., art. I, sec. 10.

Most jurisdictions, including our own, however, have recognized that the scope of cross-examination is subject to the exercise of the trial justice's sound discretion. State v. O'Brien, R.I., 412 A.2d 231, 233 (1980); State v. Eckhart, 117 R.I. 431, 436, 367 A.2d 1073, 1075 (1977); State v. Crescenzo, 114 R.I. 242, 252, 332 A.2d 421, 427 (1975). But the exercise of this discretion must not unduly restrict a defendant's right to cross-examine. It is the essence of a fair trial that reasonable latitude be given the cross-examiner. This latitude should include an opportunity for a defendant to establish or reveal possible bias, prejudice, or ulterior motives as they may relate to the case being tried. Davis v. Alaska, supra 415 U.S. at 316, 94 S.Ct. at 1110, 39 L.Ed.2d at 353-54; Alford v. United States, 282 U.S. 687, 692-93, 51 S.Ct. 218, 219-20, 75 L.Ed. 624, 628 (1931); United States v. Alvarez-Lopez, 559 F.2d 1155, 1159 (9th Cir. 1977). Accord, State v. Bennett, R.I., 405 A.2d 1181, 1183 (1979); State v. Chin Ting, R.I., 136 A. 8, 10 (1927). Even though no obligation is imposed upon the court to protect the witness from being discredited by revealing his motivation for testifying, the court does have a duty to protect him from questions that go beyond the proper bounds of cross-examination. Questions exceeding the proper limits of cross-examination are those that harass, annoy, or humiliate the witness, or questions that are irrelevant or offer no probative value. Questions of this nature are subject to the control of the trial justice. State v. Eckhart, supra, 117 R.I. at 436, 367 A.2d at 1075-76. Moreover, this court has determined that the exercise of discretion by the trial justice in limiting the scope of cross-examination will not be disturbed except for clear abuse, and then only when such abuse constitutes prejudicial error. Burns v. Janes, R.I., 398 A.2d 1125, 1128-29 (1979); State v. Sprague, 113 R.I. 351, 364, 322 A.2d 36, 43 (1974); State v. Carraturo, 112 R.I. 179, 189, 308 A.2d 828, 833 (1973).

We do acknowledge that the defense is entitled to show that an accomplice-witness may have good reason to cooperate with the prosecution. This is one reason why it is important that a defendant be allowed to explore the partiality of a witness in order to establish interest, bias, or motive, thereby to discredit the witness and affect the weight of his testimony. See Davis v. Alaska, supra 415 U.S. at 315-16, 94 S.Ct. at 1110, 39 L.Ed.2d at 353 (effective cross-examination for bias of an adverse witness vital constitutional right); State v. Ciulla, 115 R.I. 558, 570, 351 A.2d 580, 587 (1976) (significant body of law holding that bias, interest or motive can be demonstrated on cross-examination). To limit completely the defense, however, from examining the motive for testifying or the possible bias of a witness is clearly an abuse of discretion. The issue in such a case becomes whether defense counsel was afforded an adequate opportunity to bring out considerations relevant to motive or bias. See, e. g., United States v. Crumley, 565 F.2d 945, 949-50 (5th Cir. 1978); Farkas v. United States, 2 F.2d 644, 647 (6th Cir. 1924); United States ex rel. Annunziato v. Manson, 425 F.Supp....