State v. Bowden
| Decision Date | 16 August 1974 |
| Docket Number | No. 73-70-C,73-70-C |
| Citation | 113 R.I. 649,324 A.2d 631 |
| Parties | STATE v. Elbert V. BOWDEN, Jr., and Donald James Picard. A. |
| Court | Rhode Island Supreme Court |
Elbert V. Bowden, Jr., and Donald James Picard were jointly tried before a Superior Court justice and jury on indictments charging them with the kidnaping and murder of Dennis Joseph Mulhern. Each defendant was convicted of kidnaping and manslaughter and, following denial of their motions for new trials, both were sentenced to the Adult Correctional Institutions. The cases are now here on their appeals. 1
At the trial, which took place over more than six weeks, the state's key witness was Richard Rose. As Rose related, he and another member of the East Coast Motorcycle Federation (ECMF) were in Denny's Tap in Bristol on the evening of July 6, 1970. They had gone there to locate Dennis Joseph Mulhern in order to make him available to members of the Hell's Angels who were coming from Lowell, Massachusetts, to question him about his claimed membership in their motorcycle club. Sometime after 8 o'clock, 'Doc' Bergeron, a friend of Rose's, arrived on his motorcycle with Mulhern, known to Rose as 'Lucifer,' and they joined the other two in the tap. Mulhern was wearing a Hell's Angel patch on his jacket. Soon thereafter, two automobiles pulled into a parking lot across the street from the tap. In Richard ('Moose') Harris' blue Cadillac convertible vertible were Harris and two other ECMF members; in a maroon Ford were three members of the Hell's Angels from Lowell, known to Rose as 'Skeets' (Picard), 'Spooky' (Bowden), and 'Mule.' Both defendants had long hair and beards, they were attired in riding clothes and Hell's Angels-type jackets, and 'Spooky' had a Hell's Angels emblem tattooed on his forehead. They were joined in the parking lot by those in the bar.
Mulhern was introduced to the three Hell's Angels, who then questioned him in order to ascertain whether he was falsely claiming membership in their club. When he was unable to explain to their satisfaction why he didn't have a Hell's Angels tattoo and why he hadn't contacted anyone in Lowell, Picard and Harris left the group and crossed the street to the tap, where a telephone call was made in a further attempt to learn whether or not he was a mumber. On their return, Picard told Mulhern that he was not a member of the Hell's Angels. He then struck Mulhern and knocked him down, whereupon the three Hell's Angels started beating, kicking, and stomping him. An ECMF member then '* * * asked permission of the Angels if he could get a piece of the action.' Permission was granted, and the ECMF members joined in the beating.
When a neighbor apparently noticed what was happening, Picard said, 'We can't leave him here, take him with us.' Thereupon, mulhern, alive but bleeding profusely, was placed in the back seat of the Cadillac. Picard, Bowden, and 'Mule' then left in the Ford, followed by Mulhern, Harris, and the two others in the Cadillac, and by 'Doc' Bergeron and Rose on their motorcycles. Both Rose and another witness observed that some of the three persons in the Cadillac made 'punching motions' where Mulhern was sitting, but did not see where the blows were landing. En route to Providence, Bowden stopped the Ford and talked to Rose, who returned with 'Doc' to the parking lot to search for certain missing items. When this mission was accomplished, Rose and 'Doc' proceeded to the ECMF clubhouse on Eddy Street in Providence, but defendants were not there when they arrived, nor did Rose see them in Providence that night.
About four days later, a body was found floating in the Providence River. Although by then it appeared to be one of a much older and heavier person, the body was identified as Mulhern's. Medical examination showed that death was due to blunt forces applied to various parts of the body and not to drowning.
The defendants argue eleven issues, which for convenience may be grouped into three categories: (1) comments by the prosecutor which defendants assert required the trial justice to pass the cases, (2) rulings permitting the introduction of evidence whose potential for prejudicing and inflaming the jurors allegedly outweighed its probative force, and (3) miscellaneous matters consisting of evidentiary rulings, instructions to the jury, and a denial of their motions for directed verdicts.
The defendants argue that the prosecutor in some of his comments to the jury went beyond the limits of his assigned role and became a heated partisan more interested in obtaining convictions than in seeing that justice was done; that those comments so exceeded permissible bounds that they could not be cured by cautionary instructions; and that in those circumstances it was error for the trial justice not to grant their resulting motions to pass the cases.
Whether there is any merit to those contentions depends upon whether the allegedly offensive remarks were so flagrantly impermissible that even the cautionary instructions which were given were insufficient to assure defendants the fair and impartial trial which was their due. State v. Costa, 111 R.I. 602, 306 A.2d 36 (1973); State v. Kozukonis, 100 R.I. 298, 303, 214 A.2d 893, 897 (1965). No precise formula is available for making that determination. What is required instead is that each of the challenged comments be viewed in the context in which it appears and in the light of the attendant circumstances. State v. Peters, 82 R.I. 292, 296, 107 A.2d 428, 430 (1954).
The first of those comments occurred during the prosecutor's opining statement, when he several times said to the jury, 'You will learn' and then referred to the matters he intended to prove. 2 While defendants agree that these statements would have been within permissible bounds had the verb 'hear' been substituted for 'learn,' they argue that the use of the latter carried with it the connotation that the facts had already been proved, and that the prosecutor's opining, instead of serving to prepare the jurors' minds for the evidence to be presented, conveyed the impression that he believed defendants were guilty.
In our judgment, defendants pick at semantic straws when they argue in this manner. one need not be a lexicographer to comprehend that the prosecutor, in effect, used the word 'learn' as a synonym for the word 'hear,' which even defendants agree would have been a permissible substitute. Moreover, an expression by a prosecutor of his belief in defendants' guilt is not improper so long as it appears that the belief is premised upon evidence to be presented, rather than upon knowledge of facts which will not be offered as evidence. State v. Kozukonis, supra 100 R.I. at 304, 214 A.2d at 897. And there is no representation in these cases that the facts which the prosecutor told the jury they would 'learn' would not be offered as evidence.
Further motions to pass the cases were made when the prosecutor included in his opening statement a reading of the indictments, which referred to each defendant at 'alias, John Doe.' While defendants argue that his was reason for passing the cases, they do not indicate either by argument, analysis, or citation of authority how those references contributed to their convictions. That omission would ordinarily be fatal to their claim. State v. Carufel, 106 R.I. 739, 742, 263 A.2d 686, 687-688 (1970). In addition, we are unable to perceive how advising the jury of the presence of aliases in the indictments was prejudicial, particularly inasmuch as defendants and most of the other participants in these offenses were known by such aliases as 'Skeets,' 'Spooky,' 'Mule,' 'Moose,' and the like. In a comparable situation, the Supreme Judicial Court of Massachusetts held that absent a request for a limiting instruction, it was not error to read to the jury an indictment containing ten aliases, only one of which was subsequently proved. Commonwealth v. Torrealba, 316 Mass. 24, 25-26, 54 N.E.2d 939, 940-941 (1944). Nothing in the facts of these cases persuades us that we should hold otherwise.
Finally, there is the prosecutor's closing argument, during which he made allegedly abusive remarks concerning defendants and their attorneys. These remarks came at the end of a long and heated trial marked by frequent clashes between counsel and repeated admonitions by the trial justice. The defendants, nevertheless, claim that the prosecutor's remarks were totally extraneous to the issues in the cases, tended to inflame and arouse the passions of the jury against them, and hence were cause for passing the cases under the rule announced in State v. Mancini, 108 R.I. 261, 273-274, 274 A.2d 742, 748 (1971), and State v. Werner, 87 R.I. 314, 318, 140 A.2d 502, 504 (1958).
Two of the four comments upon which defendants grounded their motions to pass, when viewed contextually, relate directly to Rose's credibility. One of those comments was merely the prosecutor's explanation of why he did not offer to introduce into evidence a sworn statement which Rose made shortly after the murder. 3 While the language used in that explanation perhaps was not as restrained as it might have been, who can say that the prosecutor's assessment of how defense counsel would have reacted is unrealistic? Certainly, what was said does not fairly imply that defense counsel hindered the production of evidence. Moreover, any possible undue prejudice arising from the comment was cured when, on the following day, the trial justice told the jury that the comment was inappropriate and should be disregarded.
The other of those comments was the prosecutor's response to defense counsel's argument that Rose should not be believed...
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