State v. Bertoldi

• Decision Date: 05 July 1985
• Citation: 495 A.2d 247
• Parties: STATE v. Giulio BERTOLDI. 84-316-C.A.
• Court: Rhode Island Supreme Court

Page 247

495 A.2d 247

STATE v. Giulio BERTOLDI.

84-316-C.A.

Supreme Court of Rhode Island.

July 5, 1985.

Arlene Violet, Atty. Gen., Charles M. Nystedt, Sp. Asst. Atty. Gen., for plaintiff.

John A. O'Neill, Jr., Providence, for defendant.

OPINION

MURRAY, Justice.

This is an appeal by the defendant, Giulio Bertoldi, from a jury conviction of first-degree arson. He was sentenced by the trial justice to forty years' imprisonment, thirty years to serve and ten years suspended. Before we consider the defendant's assignments of error, we briefly set forth the factual background of this case.

The state's evidence below showed that defendant had enlisted Kevin Cimino (Cimino), who was then fifteen years old, to set fire to a residential apartment house owned by defendant in order that he could collect the insurance proceeds. The house was occupied at the time, although Cimino apparently was led to believe that it was vacant. The defendant did not seriously contest the fact that a fire had occurred, that it was incendiary in nature, and that in fact Cimino had set the fire. Rather, the defense was predicated on the argument that defendant did not procure Cimino's services in order to accomplish the act. Toward this end, defendant took the stand and denied any involvement with the fire. This statement directly contradicted the earlier testimony of Cimino, who had testified under a grant of transactional immunity that defendant had promised to pay him $2,000 if the building was "totaled" by the fire or $500 if the fire caused less extensive damage. Cimino further testified that defendant had given him specific instructions on how to accomplish the arson most effectively, had placed old newspapers in the attic to ensure that the fire would spread quickly, and had generally attended to all the preliminary matters necessary to carry out this crime, including furnishing Cimino with a mask so that he would not be recognized. Cimino testified, still under transactional immunity, that he set fire to the attic of the house on Halloween night, October 31, 1981. Robin Savitsky, Cimino's sister, corroborated her brother's testimony by testifying that her brother had confessed to her shortly after the fire and that she had urged him to turn himself in to the authorities. She also testified to the substance of a phone conversation that occurred two or three weeks after the fire between her brother and defendant. The conversation involved payment of moneys to Cimino for his part in the crime.

The defendant's first assignment of error concerns a cautionary instruction to the jury given by the trial justice. Following the state's direct examination of Cimino, defense counsel attempted to impeach him by questions regarding Cimino's prior convictions. When impeachment was concluded, the trial judge explained to the jury the statutory means of impeachment by prior convictions. He then instructed the jury with regard to immunity:

"The Presiding Justice then, in his discretion, can either decide to grant or not grant that witness immunity. If the Presiding Justice grants the Petition, filed by the Attorney General, the witness can then be called. He cannot thereafter claim his Fifth Amendment privilege because he has been granted immunity by the state, acting through the Presiding Justice of this court, which means if for anything that he says here, he cannot be prosecuted except, except for any untruthful testimony he may give in this court, which is perjury. For that he can be prosecuted regardless of immunity. So what I'm saying to you is this. In this case the Presiding Justice has seen fit to grant this witness immunity based upon the testimony regarding the incident in question. And in return for his testimony, he cannot be prosecuted by the state of Rhode Island in any way, shape or fashion for anything he has said here regarding the fire at Linwood Avenue that he has testified to. The only thing that he can be prosecuted for, if he is ever prosecuted, it would be for any untruthful answers he gave here during the course of this trial. That's all. So he's been immunized, so to speak, by the Presiding Justice. I think counsel said a justice of this court granted you immunity. I wanted that cleared up, because I didn't want you to think the trial judge heard something you haven't heard. I'm listening to his testimony just like you are listening to his testimony. So much for the admonitions I'm required to pass on to the jury according to the cases." (Emphasis added.)

The defendant now claims that this cautionary instruction unfairly prejudiced him in that the trial judge essentially "vouched" for Cimino's credibility by stating that the only charge he could be held accountable for was perjury. Appellate counsel asserts that credibility was the major factor upon which this trial turned. The defendant's testimony was pitted against the testimony of Cimino and his sister, and through this instruction, defendant asserts, the trial justice improperly tipped the scales against defendant.

We decline to reach the merits of defendant's argument. An examination of the record reveals that defense counsel failed to object to the above-quoted instruction, a condition precedent to appellate review under Rule 30 of the Superior Court Rules of Criminal Procedure. Absent extraordinary circumstances, that failure precludes review of the instruction in this court:

"Under our established procedure, defendant's failure to object to the instruction given or to request a different one precludes, at least in ordinary circumstances, a challenge to the correctness or sufficiency of the charge given. State v. Bowden, 113 R.I. 649, 665, 324 A.2d 631, 641 (1974), cert. denied, 419 U.S. 1109, 95 S.Ct. 782, 42 L.Ed.2d 805 (1975); see Super.R.Crim.P. 30. Where neither the objection nor the request has been made, the charge as given, even if erroneous, becomes the law of the case. State v. Murphy, 113 R.I. 565, 577, 323 A.2d 561, 567 (1974)." State v. McGehearty, 121 R.I. 55, 60, 394 A.2d 1348, 1351 (1978).

From McGehearty can be gleaned a two-part inquiry to be undertaken when a criminal defendant raises the propriety of a jury instruction (or lack thereof) for the first time on appeal. First, does the challenged instruction raise an issue of constitutional import? Only if this question is answered in the affirmative will this court undertake the second inquiry: Did the failure to object to the instruction, and thus the failure to comply with a procedural requirement for review, constitute a "deliberate bypass" or "sandbagging" by defense counsel? The McGehearty court found that the challenged instruction had the effect of shifting the burden of proof from the state to the defendant in a manner which implicated the constitutional principles enunciated by the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). It thus went on to consider the question of "sandbagging," and, finding none, reached the merits of the defendant's argument. ¹

In the present case, we need not inquire as to whether defense counsel's failure to object was the result of trial strategy, for we find that defendant has not raised an issue of constitutional significance. Even assuming, arguendo, that the trial justice's instruction on immunity was in error, such error did not deprive defendant of a "basic constitutional right." State v. Vargas, --- R.I. ---, ---, 420 A.2d 809, 815-16 n. 6 (1980). The challenged instruction was simply a correct statement of the law regarding transactional immunity. While we would not have taken exception to a clarifying instruction to the effect that all witnesses, not just Cimino, are subject to prosecution for perjury in the event that untruthful testimony is given, or an admonishment by the trial justice to the jury that he in no way meant to imply that Cimino was more credible than any other witness, the instruction given was, on the whole, a fair and accurate description of the law regarding transactional immunity. Certainly nothing said by the trial justice could rise to the level of a denial of defendant's due-process rights. Thus, we decline to reach the merits of defendant's argument.

The defendant also takes exception to the fact that the trial justice failed to give the jury a so-called "accomplice instruction." Such an instruction would admonish the jury that the testimony of an accomplice "should be examined by you [the jury] with greater care than the testimony of an ordinary witness" because that testimony "may be colored in such a way as to further the witness's own interest * * *." Federal Jury Practice and Instructions § 17.04 at 529 (3d ed. 1977). Overlooking State v. DeMasi, --- R.I. ---, 413 A.2d 99 (1980), a case that specifically rejected the need for any such instruction, it appears that defense counsel again neither requested an "accomplice instruction" nor objected to the lack of one. For the same reasons as are stated above, we hold that Rule 30 precludes our review of this issue. As a final word on this matter, we concur with the opinion of Mr. Justice Rehnquist, who views

"the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which...