State v. Ashness

• Decision Date: 08 June 1983
• Docket Number: No. 81-332-C,81-332-C
• Citation: 461 A.2d 659
• Parties: STATE v. Richard ASHNESS and Christopher Cole. A.
• Court: Rhode Island Supreme Court

Page 659

461 A.2d 659

STATE v. Richard ASHNESS and Christopher Cole.

No. 81-332-C.A.

Supreme Court of Rhode Island.

June 8, 1983.

Dennis J. Roberts II, Atty. Gen., Margaret R. Levy, Sp. Asst. Atty. Gen., Providence, for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Chief Appellate Counsel, Providence, Bruce G. Pollock, Warwick, for defendants.

OPINION

BEVILACQUA, Chief Justice.

The defendants Richard Ashness and Christopher Cole were charged in a multicount indictment with a series of offenses arising from an armed robbery of a jewelry store. A Superior Court jury found both the defendants guilty of one count of robbery, eight counts of assault with a dangerous weapon, and one count of committing a crime of violence while armed. The trial justice denied the defendants' motions for a new trial, and they appealed.

On the evening of October 25, 1979, two men carrying guns and wearing ski masks robbed Cerel's Jewelry Store in Pawtucket, Rhode Island. Several employees and customers were present at the time. One of the men, described as tall and slender, positioned himself at a counter near the front of the store and ordered Daniel Cerel, co-owner of the store, to put diamonds from the display case into a bag. The man fired one shot through the front of the case but neither Mr. Cerel nor the customers he had been waiting on were injured. Meanwhile, the shorter of the two robbers, brandishing his gun, accosted employees and customers in the rear of the store. He fired in the direction of an employee emerging from the vault and then fired two shots past the head of David Bradley, another employee, after ordering him to turn over the jewelry in the case in front of him. No injuries were sustained either by Mr. Bradley or by the two customers standing nearby, Gerry Jones and his fiancee. As the two men fled with approximately $100,000 in jewelry, an employee activated a silent alarm.

A police officer gave chase to a blue Mercury with two occupants which had run a stop sign with its headlights off approximately one block from Cerel's. The driver of the vehicle began firing his gun out the window in the direction of the pursuing police car. While the Mercury was being pursued, a report of the robbery at Cerel's Jewelry Store came over the police radio. The Mercury entered a municipal parking lot where the two occupants jumped from the Mercury and ran to a silver-gray Malibu parked in the lot. The pursuing police officer fired a shot, and the passenger, wearing a ski mask, fell to the ground. This suspect was later identified as defendant Christopher Cole. The police discovered trays of jewelry in the Mercury and found two guns in the parking lot.

In response to the broadcast by the officer in the parking lot, a second officer moved his vehicle to block the path of the Malibu driving away from the lot. The driver evaded the second police vehicle, but a third police car moved into his path. The police apprehended the driver when he attempted to drive through a gas station. The driver of the Malibu was subsequently identified as defendant Richard Ashness.

On appeal defendants allege several errors in the trial justice's rulings. In order to give proper attention to the issues presented, we will consider each defendant's arguments separately.

I

A

The first issue raised by defendant Ashness is whether the trial justice abused his discretion in denying defendant's motion for a continuance. Ashness sought a continuance to allow him time to secure counsel of his choice to represent him.

The Public Defender originally assigned Ms. Allegra Munson to represent defendant Ashness. Approximately six weeks before the case came to trial, the Public Defender transferred the case to Mr. Marvin Clemons. On the first day of trial, defendant Ashness addressed the court and for the first time expressed his dissatisfaction with his present attorney. He requested either the return of Ms. Munson or time to retain private counsel. ¹

The trial justice denied defendant's motion to continue. He noted that the case was ready to be heard and numerous witnesses had been notified to be present. He also recognized the right of the Public Defender to reassign cases and the adequacy of representation in this case. The defendant contends that this ruling denies him his constitutional right to counsel because the court did not give him the opportunity to obtain counsel of his choice. We disagree.

Due process requires that a defendant be afforded a reasonable opportunity to obtain counsel of his choice. Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4, 10 (1954); United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1213-14 (3d Cir.1969); State v. Dias, 118 R.I. 499, 502, 374 A.2d 1028, 1029 (1977). However, not every denial of a request for a continuance violates due process. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, 931 (1964); State v. Dias, 118 R.I. at 503, 374 A.2d at 1030. The general rule is that the question of a continuance is a matter within the sound discretion of the trial justice. State v. Levitt, 118 R.I. 32, 41, 371 A.2d 596, 601 (1977). In arriving at his decision, the trial justice must weigh the interest of the defendant in securing counsel of his choice against the interest of the public in an efficient and effective judicial system. United States ex rel. Carey v. Rundle, 409 F.2d at 1214. Whether the denial of a continuance is so arbitrary as to constitute a violation of due process depends upon the particular circumstances of each case and the reason asserted for the request. Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 850, 11 L.Ed.2d at 931; State v. Dias, 118 R.I. at 503, 374 A.2d at 1030.

Even assuming that defendant Ashness did not seek to delay the trial by requesting time to obtain private counsel, ² the facts of this case clearly support the denial of the continuance. The defendant had ample time after Mr. Clemons was assigned to his case to secure private counsel and to make the court aware of his dissatisfaction with Mr. Clemons. Instead, defendant Ashness waited until the start of the trial to inform the court and request a continuance. The case was already set for a jury trial to begin within a day or two, and the state had fifteen or sixteen witnesses ready to testify. At this point, the necessity for the efficient and effective administration of criminal justice outweighed defendant's interest in securing counsel of his choice. ³

In light of the facts and circumstances of this case, the trial justice properly exercised his discretion in denying defendant Ashness's motion for a continuance.

B

Ashness's second contention is that the trial justice abused his discretion in refusing to declare police-detective Herbert Collins a hostile witness. Detective Collins was the primary investigating officer of this case. He conducted a tangible-evidence viewing for counsel at which he allegedly identified certain articles of clothing as those seized from defendant Ashness at the time of his arrest. Defense counsel called Detective Collins as a witness to identify the clothing in court as that seized from Ashness. By this testimony, defendant sought to demonstrate that the clothing Ashness was wearing at the time of his arrest did not match the color of the robber's clothing described by certain witnesses. ⁴ Defense counsel was unable to elicit from Detective Collins a statement that the clothes were in fact taken from Ashness, and the trial justice sustained the state's objections to counsel's repeated use of leading questions. Defense counsel then requested that the court declare the detective a hostile witness so that he could be cross-examined. The trial justice denied the request on the basis that the witness's answers had not been evasive.

Ashness contends that the trial justice's ruling on this request was an abuse of discretion because he failed to recognize the rule adopted by some courts that a witness closely associated with an adverse party may be declared hostile regardless of whether or not his answers are evasive. See United States v. Bryant, 461 F.2d 912 (6th Cir.1972); United States v. Freeman, 302 F.2d 347 (2d Cir.1962), cert. denied, 375 U.S. 958, 84 S.Ct. 448, 11 L.Ed.2d 316 (1963). The defendant's claim is misplaced.

Under Rhode Island law, counsel may impeach his own witness in two situations: when he is surprised by the witness's testimony or when the interests of justice so require. State v. Vargas, R.I., 420 A.2d 809, 812 (1980); State v. Robertson, 102 R.I. 623, 626-29, 232 A.2d 781, 784-85 (1967). Defense counsel may have been surprised when Detective Collins initially denied having seen the clothing before that morning in court, but the detective did subsequently recall his presence at the tangible-evidence viewing. ⁵ The identification of the clothing as that taken from Ashness, however, was not information within Detective Collins's personal knowledge. There was no evidence that the detective was present at Ashness's arrest or that he saw him at the police station immediately afterwards. Therefore, Detective Collins's identification of the clothing as belonging to Ashness in order to prove that he was wearing that clothing at the time of the robbery would be objectionable as constituting hearsay. Defense counsel could have elicited this testimony from other witnesses having personal knowledge of the information. Clearly, the interests of justice should not require the impeachment of defendant's witness under these circumstances.

In view of established Rhode Island law, the trial justice did not abuse his discretion in denying defendant Ashness's request to declare Detective Collins a hostile witness.

C

Ashness next argues that the trial justice erred in refusing to dismiss count 5 of the indictment on either his motion for judgment of acquittal or his motion for a new trial. Count 5 charged defendant with assault with...