State v. Brash
| Decision Date | 28 July 1986 |
| Docket Number | No. 85-23-C,85-23-C |
| Citation | 512 A.2d 1375 |
| Parties | STATE v. Allen M. BRASH et al. A. |
| Court | Rhode Island Supreme Court |
The defendants, Allen M. Brash and Eugene S. Fountaine, were convicted after a trial by jury in the Superior Court of conspiracy to commit murder. They are now before this court appealing the judgments of conviction. Brash also appeals his conviction of possession of a firearm after previous conviction of a violent crime. We reverse and remand for a new trial.
Indictment No. 81-2312 contained four counts. Count 1 charged Robert Farrell, Eugene Fountaine, Allen Brash, and William Salisbury with the April 12, 1981 murder of James Heaney in Scituate, Rhode Island. Count 2 charged them with conspiracy to commit the murder. Counts 3 and 4 charged Brash with commission of a crime of violence while armed and with possession of a firearm after previously being convicted of a crime of violence. Fountaine and Brash were acquitted of count 1, and Brash was acquitted of count 3. The facts of this case are as follows.
Early in 1981 the Federal Bureau of Investigation (FBI) was investigating a stolen-car ring operating in Rhode Island and Massachusetts. FBI Agent James Bubela had the group under surveillance and was tracking its activities. James P. Heaney was a participant in the car-theft operation. At some point in the investigation, Heaney began to provide information secretly to the government about the stolen-car operation in the expectation that he would receive leniency.
At about ten o'clock in the evening on April 12, 1981, Glen Shirley and his wife were driving along Shun Pike in Scituate, Rhode Island, when they encountered a burning car at the side of the road. The Scituate fire and police departments were summoned, and the fire-fighters extinguished the fire, which by then had fully engulfed the car. James Heaney's badly burned body was found in the driver's seat. An autopsy performed by Medical Examiner Arthur C. Burns revealed that Heaney had been shot in the head three times at close range, that the shots had killed him within a few minutes, and that he was already dead by the time the fire started.
The police were without suspects, and the murder remained unsolved until September 30, 1981, when William Salisbury approached FBI Agent Bubela with an offer to provide information about Heaney's murder in exchange for $1,000. Salisbury had robbed a drug dealer who reported the incident to the Pawtucket police, and a warrant for Salisbury's arrest for robbery was outstanding. He needed the money to pay off the drug dealer, who then apparently would drop the charge. Salisbury was already on parole for another crime; and he was concerned that if the authorities learned of the robbery, he would be sent back to prison for violating his parole. Thus began a series of events that would place Salisbury at the center of an ever-widening circle of unsolved crimes. Salisbury met with Bubela three times and implicated Brash and Fountaine in the murder without admitting his own participation in it.
A few days after the third meeting at which he received the last installment of the $1,000, Salisbury was arrested on the robbery charge and held at the Adult Correctional Institutions. State Police Lieutenant Thomas Moffatt, who did not know about Salisbury's relationship with Bubela, approached Salisbury to discuss his involvement in another crime. At this time Salisbury offered to provide evidence and testimony about the Heaney murder and other crimes in exchange for a "deal." Subsequently, Salisbury's offer was accepted by the state on the condition that Salisbury had not actually done the shooting in the murder.
Salisbury is now in the Federal Witness Protection Program living in another state under another name. In exchange for his testimony, Salisbury was promised that he would not have to go to jail for his participation in the Heaney murder or for his participation in any other crime. Salisbury stated that "the deal was as long as I wasn't the shooter in any of these crimes, I would get a deal." The other crimes included a homicide in a state that has the death penalty, conspiracies to commit murder, five or six armed robberies, and about twenty-five other robberies. Salisbury was to provide information and testimony in these cases as well.
William Salisbury was the state's key witness in the two-week-long trial that is recorded in a 1,500-page transcript. His testimony at trial about the events occurring on April 12, 1981, follows.
Salisbury and Brash were having dinner with their girl friends when Brash received a phone call from Fountaine. He and Brash met Fountaine, who said that Robert "Beans" Farrell had offered them $5,000 to kill Heaney. According to Fountaine, Farrell would convince Heaney to drive a stolen car to a location near Plainfield Pike and Route 295 in Scituate. The area was sparsely populated and heavily wooded, and this was where Heaney's murder was to take place. Farrell wanted him killed because Heaney had become an informant and would implicate Farrell and a number of other people in the car-theft operation. Time was of the essence because Heaney, about to begin serving a prison sentence in Connecticut, would be more difficult to kill once in prison.
The three drove to the agreed-upon location and waited for Heaney. When they saw Heaney arrive in the stolen car, they blinked the lights and Heaney pulled over, at which time Salisbury approached him and asked if he was "ten speed." Heaney replied that he was "ten speed," and then Salisbury and Brash got into the car with Heaney. Fountaine, who was still in the other car, drove ahead and led them to Shun Pike. They then pulled over to the side of the road. Brash was sitting in the back seat behind Heaney when he shot him in the head several times with a .38-caliber pistol. Salisbury had a pistol, a .380-caliber llama, which was only to be used as a backup in the event Brash was unsuccessful. Salisbury absolutely denied having pulled the trigger of the gun that killed Heaney. They fled to Fountaine's car immediately after the shooting, leaving Heaney's body in the stolen car with the engine still running.
When Salisbury later went to Agent Bubela, he denied being present during the murder. He told Agent Bubela that Brash had told him that the murder weapon and some bloody clothes had been thrown away in the vicinity of Shun Pike. Salisbury accompanied Bubela to the area, which was then searched, but nothing was ever found. Salisbury later admitted that he had been lying when he told Bubela this story, and he said that he had no idea where the gun or bloody clothes were located.
A total of thirty-seven witnesses testified for the state and approximately sixty exhibits were introduced into evidence. Private citizens and police and firefighters attested to the time and place the burning car was found, the presence and position of the body, and the fact that the car was stolen. State and federal investigators described the surveillance of the stolen-car operation in which Heaney had been involved, his impending Connecticut prison sentence, and his inclination to provide information in exchange for leniency. Much testimony and physical evidence was devoted to describing a large cache of weapons and ammunition seized from the so-called Lawton Farm. There, according to Salisbury, Fred Lawton, the owner of the farm, had made available to Brash, Fountaine, Salisbury, and others a number of firearms. These guns were used for target practice at the farm. Weapons and ammunition seized from the farm were introduced into evidence even though the state conceded that none of these weapons had been physically linked to Heaney's murder. The state argued at trial and on appeal that the impression it sought to establish by means of these guns was that defendants and Lawton and Salisbury were among the individuals relied upon to perform murders for hire and that Heaney's murder was one such killing. Neither defendant testified at trial, nor did either present any evidence, with the exception of the autopsy report introduced into evidence by Fountaine.
The defendants base their appeal on a total of fifteen issues, but we limit our discussion to the two issues that are dispositive of this appeal. They are the alleged hearsay-bolstering testimony from Agent Bubela and Lieutenant Moffatt about their conversations with Salisbury and the admission into evidence of the Lawton Farm testimony and guns.
We begin by recognizing that the question of whether evidence is relevant and therefore admissible is a determination resting within the sound discretion of the trial justice. State v. Pemental, 434 A.2d 932 (R.I.1981); State v. Byrnes, 433 A.2d 658 (R.I.1981). This discretion, however, is not without bounds, State v. Tavarozzi, 446 A.2d 1048 (R.I.1982), and
State v. Bowden, 473 A.2d 275, 280 (R.I.1984) (quoting State v. Bowden, 439 A.2d 263, 269 (R.I.1982)).
At trial Lieutenant Moffatt and Agent Bubela were permitted to testify about their conversations and dealings with Salisbury. Much of this testimony, which came in on direct examination over defendants' objection, involved the recitation of Salisbury's statements to them concerning the details of Heaney's murder. The defendants assert that this was hearsay not within any recognized exception to the hearsay rule and...
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