State v. Barton

• Decision Date: 15 January 1981
• Docket Number: No. 79-429-C,79-429-C
• Citation: 424 A.2d 1033
• Parties: STATE v. Ronald F. BARTON et al. A.
• Court: Rhode Island Supreme Court

Page 1033

424 A.2d 1033

STATE v. Ronald F. BARTON et al.

No. 79-429-C.A.

Supreme Court of Rhode Island.

Jan. 15, 1981.

Dennis J. Roberts II, Atty. Gen., Stephen Lichatin III, Spec. Asst. Atty. Gen., for plaintiff.

John F. Cicilline, Peter A. DiBiase, Richard A. Gonnella, Providence, Oteri & Weinberg, Vincent Savarese III, Judith H. Mizner, Boston, Mass., for defendants.

OPINION

KELLEHER, Justice.

This indictment charged the defendants, Ronald F. Barton (Barton) and James Murphy (Murphy), as well as five other individuals, with conspiring to break into and enter a building in the nighttime with intent to commit larceny therein, the possession of burglary tools, and the malicious destruction of communication lines belonging to the New England Telephone Company. Barton, Murphy, and Arthur M. Barrett (Barrett) went to trial on all three counts before a Superior Court jury. The jury acquitted Barrett and returned guilty verdicts on all counts against Barton and Murphy.

There is little dispute regarding the essential facts of this case. In May 1977 members of the Rhode Island State Police along with agents of the Federal Bureau of Investigation (FBI) conducted a joint investigation of the activities of a Johnston resident by the name of Anthony Fiore (Fiore), one of the conspirators named in the indictment. Their investigation was implemented by an order of the United States District Court for the District of Rhode Island entered on May 13, 1977, which permitted a surreptitious entry into Fiore's home for the purpose of installing listening devices in four designated areas within the premises. The law-enforcement authorities also kept Fiore's house under surveillance through the use of some sophisticated photographic equipment, which took pictures of the goings on at this location.

Armed with the information obtained through the listening devices and the cameras, the investigators were able to observe several meetings between Barton, Murphy, and several of the named conspirators. It soon became apparent that Murphy and Barton were part of a group demonstrating a significant interest in a manufacturing plant located in an industrial park situated in the extreme westerly portion of Lincoln, Rhode Island. The plant was owned by Vennerbeck and Clase, Inc. (Vennerbeck). Vennerbeck specializes in the manufacture of gold-alloy products, which it supplies to the jewelry industry. In late May of 1977, Vennerbeck had on hand over $1 million worth of precious metals.

Nineteen seventy-seven's Memorial Day weekend was something more than a holiday for the troopers and agents who later testified at the trial. On Sunday evening, May 29, several of the State Police and federal agents assigned to this detail were secreted inside the plant. The officers remained in the plant until 3 a.m. on May 30. During their stay, the telephone rang twenty or thirty times and various noises were heard outside the building, but nobody attempted to enter. The jury had been told that the persistent ringing of the phones indicated that an attempt was being made to bypass the alarm system.

At approximately 7:30 p.m. on May 30, the stakeout team returned to the industrial park. Three FBI agents took a position behind a stone wall that ran along an embankment located across the road passing in front of Vennerbeck's plant. Other members of the detail were placed at such strategic places in the surrounding neighborhood as Angell Road near Rolling Woods Drive, Jenckes Hill Road, and the North Central Airport. Sometime close to 11:15 p.m. the agents stationed behind the wall observed four men pass in front of them and stop about fifteen yards away. Three of the new arrivals walked down onto the road and removed the cover from a manhole which was situated in the middle of the road. The glare of a flashlight indicated that the trio was examining the interior of the manhole. The agents heard one of the group conversing on a walkie-talkie; he reported, "Everything looks good. Nobody has discovered our work. It's great. We should have no trouble." The quartet's sense of well-being must have received a shock when its correspondent reported, "Okay, we've got a problem here. Go back." At this point, the quartet began to retrace its steps, but the retreat became a rout when Murphy literally stepped on one of the agents and was arrested, while the other three fled through the nearby wooded area.

At 11:40 p.m. Detective Trooper Brian R. Andrews (Andrews) left his assigned point of surveillance on Angell Road and drove to Vennerbeck's plant. After a ten-minute stay he returned to the Angell Road area. At 12:55 a.m. on May 31, he observed a "subject" turn the corner from Angell Road onto Rolling Woods Drive. The subject walked up a driveway, opened the door of a parked green Pontiac, took out a black bag, and placed that bag in a garage at the end of the driveway. The garage is attached to a home. The subject then went back to the Pontiac and extracted a crowbar, which he also placed in the garage. The subject returned to the Pontiac, and as he started to back down the driveway, he was arrested at gunpoint. The subject was Barton. A search of Barton disclosed that he was carrying a walkie-talkie.

The owner of the Rolling Woods Drive property testified at trial and denied any knowledge of the various and sundry equipment found in his garage, including such items as a large acetylene tank and torch, pinch bars, crowbars, and a sledgehammer.

At approximately 5:30 a.m. on May 31, Barton's walkie-talkie appeared to have come alive. Detective Andrews explained to the jury that he had momentarily returned to the Vennerbeck plant area when he heard the walkie-talkie emit a very weak "squelch break." He then told the jury that if one hears a "squelch," it is an indication that someone is attempting to transmit a message. Andrews and his associates then began to change locations within the area to see if they could increase the strength of the incoming signal. When they reached a point on Jenckes Hill Road, they heard a voice saying, "Three to one. Three to one." The officers made no response because they felt the individual transmitting was using some type of code. Finally, Andrews acknowledged a message in which the voice said, "Come pick me up."

At that point, the police returned to the Lincoln State Police Barracks where they picked up an Oldsmobile Cutlass which, along with the green Pontiac, had been removed to the barracks from the Rolling Woods Drive driveway. With Andrews driving and Lieutenant Edward J. Correia secreted in the back seat, they attempted to follow the instructions that came over the radio. They were looking for a street with a yellow street sign. After going down a road, they were told, "You just went by me. Come back again." Andrews, happy to comply, turned the vehicle around, parked it, and activated the right directional signal lights. A voice then inquired, "Is that you with the directional light on?" Andrews responded in the affirmative. Andrews was then told to leave the vehicle and pretend that he was changing a tire. As Andrews was crouching over the right front tire, an individual jumped over from behind a bush, a smile on his face as he started to run for the car. When he was halfway to his destination, the smile disappeared from the face of Santo M. Diaferio.

Detective Corporal Richard Wheeler, a member of the stakeout detail, testified that at approximately 7 a.m. on May 31, he arrested an individual who was walking westerly on Jenckes Hill Road. The individual was Kenneth Holmes. Holmes's dungarees and shoes were wet. Detective Wheeler attributed Holmes's dampened condition to the fact that Holmes, like Wheeler, had spent much of the early-morning hours traveling through the nearby woods with Holmes being the pursuee and Wheeler the pursuer.

Another witness at the trial was Peter Hunt, a police officer employed by the town of Lincoln. On June 1 at approximately 3:30 a.m. he received a radio message to check out an individual who was seen walking along the Old Louisquissett Pike. Officer Hunt picked up an individual by the name of Spurgeon Cox. ¹ Cox sported a day's growth of beard, his clothes were wet, there were grass and leaves stuck to his clothes, and according to Officer Hunt, he looked like he had been out in the woods.

The sole issue ² presented before this court on appeal is whether the trial justice committed error by instructing the jury on the vicarious liability of coconspirators. The trial justice instructed the jury:

"Beside the offense of conspiracy, a defendant may also be convicted of any crime that was committed by himself or by other coconspirators that was done in furtherance of the object of that unlawful agreement. In short, the act or declaration of one conspirator is evidence against the other coconspirators if such act or declaration was in furtherance of the unlawful agreement."

The trial justice also elaborated on this instruction by giving the following example:

"(I)f you find beyond a reasonable doubt that the offense of possession of burglar tools and/or the offense of injury to communication lines was committed * * * by 'A,' a member of the alleged conspiracy, that 'B,' another defendant, was then a member of the conspiracy, and that (the criminal acts were) * * * done in furtherance of the unlawful agreement * * * and that 'B' might reasonably have foreseen that those acts would be done by 'A,' then you may find defendant 'B' guilty of that offense, even though he did not otherwise, personally, participate in the act complained of or did not have knowledge of said act."

The case most often cited when speaking of vicarious liability in a conspiracy context is Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ³ where the Supreme Court ruled that in conspiracy situations a criminal act by one partner in furtherance of the conspiracy may be attributed to all...