State v. Bertram

• Decision Date: 06 May 1991
• Docket Number: No. 90-128-C,90-128-C
• Citation: 591 A.2d 14
• Parties: STATE v. Frank A. BERTRAM. A.
• Court: Rhode Island Supreme Court

Page 14

591 A.2d 14

STATE v. Frank A. BERTRAM.

No. 90-128-C.A.

Supreme Court of Rhode Island.

May 6, 1991.

James E. O'Neil, Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., Annie Goldberg, Sp. Asst. Atty. Gen., for plaintiff.

David Cicilline, Providence, for defendant.

OPINION

KELLEHER, Justice.

During the 1987 Christmas holidays, Thomas O'Gorman (O'Gorman), the executive housekeeper at the Holiday Inn at the Crossings in Warwick, Rhode Island, made a brief visit to the city of Chicago. Upon his return to the Holiday Inn, he made a special round of the premises to ensure that nothing had been left wanting in his absence. In one particular room he noticed "a faint odor" and asked the individual who had cleaned the room to go back there and clean it again.

On January 2 O'Gorman returned to the room to determine whether the problem had been corrected. Again he detected "the same faint odor," and in the company of an employee he began his own inspection. A search of the area behind the furniture and under the beds failed to reveal the source of the odor. As O'Gorman was walking out of the room, it became apparent that "the last place to look" was a luggage rack, a large, hollow, solid-birch box that was open at the bottom, wrapped in canvas and painted, and estimated to weigh more than one hundred pounds. As O'Gorman tipped the box away from the wall, a very strong odor became evident.

Suffice it to say, the birch box contained a body that was later identified to be that of sixteen-year-old Lori Leone. A pair of brown jeans was tied tightly around her neck. The medical examiner, who gave the cause of death as asphyxia due to strangulation, also estimated that Lori Leone had been dead "a few days to a week."

Hotel records established that in the week before the body was discovered, the room had been occupied by three sets of guests. On December 31, New Year's Eve, it was one of three rooms reserved by Warwick police officers and their wives to celebrate the arrival of a new year. Before that, from December 28 to 30, the room was occupied by a regional representative of a manufacturer of physical-therapy equipment; and before the representative's stay, just before midnight on December 26, the room was rented by an individual using the name Frederick Bricker of 36 Cornell Boulevard in Warwick, telephone number 781-9286, who supposedly drove a 1987 Chrysler with the license number ZX-940.

Further investigation revealed that the Cornell Boulevard address was fictitious and that the telephone number had belonged for many years to a retired man in Cranston who did not know anyone named Bricker. The registration number turned up under a different name and was carried in the Registry of Motor Vehicles files as "inactive, either lost or stolen within a year or so."

Further investigation indicated that "Frederick Bricker" had made one telephone call to an unlisted number belonging to Elaine Watson of 118 Arnold Avenue in Cranston, whose sister, Cheryl Bertram (Mrs. Bertram), had been living with her for a few weeks, along with her husband, Frank Bertram (Bertram).

At that time Bertram had a 1987 Chrysler registered to him but it was inoperative. Instead Bertram and his wife had been driving another vehicle that had been leased in his wife's name in mid-November 1987 from Pride Chrysler-Plymouth, a dealer located in nearby Seekonk, Massachusetts. Of some passing interest is the fact that the Bertrams, along with a Stanley Ostrowski (Ostrowski), were riding in the rented vehicle on the night of December 27 when Ostrowski, their friend and employee, was stopped by the Providence police for speeding. All three were arrested, but the Bertrams were released; Ostrowski, a parolee, had held up a gas station the night before and was later identified from photos by an eyewitness. The rental vehicle was impounded and towed to a lot in Providence, where it remained until early January 1988, when the Warwick police were alerted to a possible link between the car and the Holiday Inn homicide. The car was towed to Warwick, and a fingerprint recovered from the window on the passenger side was matched to prints taken post mortem from the victim.

Cheryl Bertram aroused the suspicion of the police when she informed them that her husband and Ostrowski were with her all evening on December 26, the night of the murder, when, in fact, Ostrowski had already been identified as having been a participant in the gas-station robbery that evening. When this fact was pointed out to her, she changed her story.

Trial began approximately a year later. Mrs. Bertram invoked her Fifth Amendment privilege and refused to testify. Ostrowski became a witness for the prosecution, in exchange for the favorable disposition of his pending cases. He testified that Bertram told him on December 27 that he had "picked up a girl" the night before, that he had "end[ed] up taking her to the motel" in Warwick, and that when "something went wrong," he had strangled her. Ostrowski did testify that Bertram had ordered him to remove from the car articles belonging to the deceased, such as "clothes and shoes and a pocketbook and a pillow case." These articles were "dumped * * * in a garbage can [located] in Roger Williams Park." A handwriting expert also informed the jury that, in his opinion, the individual who printed entries on four lines on the Holiday Inn's registration card was Bertram.

On appeal Bertram first challenges the denial of a motion to suppress evidence allegedly obtained without a warrant from the automobile leased by Mrs. Bertram after the vehicle had been impounded by the Providence police. As noted earlier, the driver, Ostrowski, was arrested for speeding on December 27, the night after the murder, and guns were found in the car. The Bertrams, who were with Ostrowski in the car, were also arrested but later released.

At the suppression hearing an employee at the impoundment lot testified that Mrs. Bertram had come to the premises to retrieve certain personal items from the impounded vehicle. Mrs. Bertram testified that she made no attempt to take the car at that point, even though, according to later testimony, she could have obtained a release to do so if she had paid the towing bill and presented the lease agreement.

Detective Mark Brandreth (Brandreth) of the Warwick police department testified that on January 4 Warwick police were notified by Providence police that Ostrowski and the Bertrams had been arrested in Providence on December 27 and that the vehicle had been impounded. Apparently the Warwick police were interested in the car because the occupant of the room in which the body was found had listed a late-model Chrysler on his registration card. Brandreth further testified that he and another officer went to the lot and asked the manager where the vehicle was located. After the manager identified the vehicle, Brandreth stated: "We went out and looked at the vehicle [and we] looked in the windows. The vehicle was secured. We looked in the windows and on the back floor observed a pair of ladies shoes, a towel or bath mat similar to what they use in hotels."

These observations further piqued the officers' curiosity because they knew the victim found at the hotel was a female and that no shoes had been found with her body. At that point, Brandreth testified, they contacted the registered owner of the automobile, Pride Chrysler-Plymouth. Upon questioning by the officers, Raymond Monast (Monast), the dealership's manager, revealed that the car was currently being rented to Mrs. Bertram and was listed as "overdue." Monast further stated that he last heard from Mrs. Bertram in mid-December when she asked to keep the car "one more week" and that he had "not seen or heard from her since." Brandreth then asked Monast if it could be possible to remove the car to Warwick police headquarters and to have Monast meet officers there with a copy of the rental agreement. According to Brandreth, Monast "said absolutely; that he was looking for the car himself for lack of payment and we had all the right to take the vehicle as far as he was concerned."

That afternoon the car was towed to the Warwick police garage, and Monast brought a copy of the lease agreement with him to the station. A warrant to search the car was then prepared and signed that night, and the search was executed the following morning. The only evidence introduced from the search of the car was a fingerprint recovered from the passenger section of the vehicle. The print matched one of the victim's.

Bertram now asserts that the officers' peering through the windows of the leased auto at the lot constituted an illegal search, that the subsequent towing of the vehicle to the Warwick police department was an unreasonable seizure, and that the subsequently obtained warrant was invalid because it relied on an affidavit containing illegally gathered information. Bertram therefore requests that this court engage in a full-blown analysis of whether the fingerprint obtained from the vehicle should be excluded under the existing law of search and seizure.

Before such a request will be entertained by this court, however, a defendant must first demonstrate that he or she has an appropriate interest on which to base this request. In other words defendants must first prove that they have standing to object to the validity of a search or seizure. Fourth Amendment rights are personal rights not to be asserted vicariously by a defendant merely because he or she may be aggrieved by the introduction of damaging evidence. State v. Porter, 437 A.2d 1368, 1371 (R.I.1981); see also Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, 394 (1978). Furthermore it is well settled that defendants assume the burden of establishing their standing to challenge the admissibility of the seized evidence. Porter, 437 A.2d at 1371; State v. Cortellesso, 417 A.2d 299, 301 (R.I.1980); see also Rak...