State v. Bruni, 9226
| Decision Date | 25 April 1952 |
| Docket Number | No. 9226,9226 |
| Citation | 88 A.2d 162,79 R.I. 311 |
| Parties | STATE v. BRUNI et al. Ex. |
| Court | Rhode Island Supreme Court |
William E. Powers, Atty. Gen., Archie Smith, Asst. Atty. Gen., for State.
Leo P. McGowan, Providence, for defendant Joseph H. Bruni.
Charles A. Kiernan, Joseph Goodman, Providence, for defendant Fred Ciampanelli.
Joseph V. Ortoleva, Providence, for defendant Joseph A. Marrocco.
Angelo Cianciarulo, Uldrich Pettine, Providence, for defendant Gabriel P. Maioli.
This is an indictment for robbery on which five defendants were tried together in the superior court and found guilty by a jury. The case is here on a single bill of exceptions in which all defendants joined. However, one defendant, Peter A. Greco, with leave of this court has withdrawn his exceptions, thus leaving only four defendants prosecuting the bill here
The bill sets out forty-four exceptions forty-one of which are to rulings of the trial justice either admitting or excluding evidence objected to by the defendants The others are exceptions to the denial of their motion for a mistrial, to the denial of their motion for a new trial, and to a portion of the trial justice's charge to the jury.
It appears from the evidence that on May 1, 1950 sometime between two-thirty and three o'clock in the morning Mrs. Jeanette M. Fortin, hereinafter referred to as the complaining witness, was set upon in a lonely spot near Oakwood avenue in the city of Providence and robbed of a watch, a pair of earrings, a necklace and a small sum of money, namely, a five-dollar bill and a silver dollar. The next day, May 2, 1950, at the central police station in Providence she was confronted with each of the defendants and identified each one as having participated in the robbery. Also on that day at the station in the presence of complaining witness and a policewoman, Josephine E. Reardon, each defendant in the presence of the other defendants admitted his part in the crime in answer to questions addressed to him by Captain Paul A. King of the Providence police department. The statement of each defendant on that occasion was taken down and transcribed by a police stenographer. Later each defendant except Gabriel P. Maioli signed such statement. Maioli refused to sign because he claimed one part of his statement was not correctly transcribed.
The state did not offer those written statements in evidence nor did it refer to them in interrogating officer Reardon. On the contrary it strictly confined its interrogation to what the witness actually heard each defendant say in answer to certain questions addressed to him by Captain King concerning his conduct and presence at the scene of the robbery on the morning in question. No attempt was made to have the witness testify as to the contents of any written statement, signed or unsigned, by any of the defendants. Reference to such written statements was first made by counsel for defendants while examining a witness for the state in the absence of the jury. Nevertheless the defendants repeatedly objected to the testimony of officer Reardon and they are pressing those objections here under their exceptions numbered 7 to 38 inclusive.
They contend that the best evidence of what they said in answer to Captain King's questions was contained in the written statements which the state had in its possession. They also argued that it was incumbent upon the state to introduce such statements in evidence and that it was not excused from such duty by the trial justice's offer to require the state to produce them upon defendants' demand therefor. In other words, they claim that officer Reardon's testimony as to what they said was secondary evidence and therefore clearly inadmissible. We cannot agree with such contention. In the circumstances her testimony was as much primary evidence of what they said as the transcribed report of the stenographic notes. And we recently so held in State v. Braica, R.I., 78 A.2d 374.
However, defendants argue that the facts therein were different and therefore such case cannot control the ruling in the instant case. We do not think so. In the Braica case there were also statements in writing transcribed from stenographic notes of what defendants had said but neither the statements nor the notes were used by the state in presenting its case. The officers who had heard the defendants answer the questions were allowed to testify, solely from their recollection without the aid of a memorandum of any kind as to what they actually heard defendants say, but not, however, as to the contents of the written statements.
In the case at bar officer Reardon had precisely the same opportunity to know what the defendants said and was allowed to testify in like manner. Aside from the fact that the written statements in the Braica case were unsigned and that four of the statements in the case at bar were signed, there is no essential difference between the two cases. As pointed out in the Braica case, the testimony was admitted in accordance with the generally accepted rule governing the admission of such evidence, and therefore the trial justice was correct in following the same rule in the case at bar. Exceptions numbered 7 to 38 are therefore overruled.
The complaining witness in her direct examination describing what happened at the scene of the robbery testified that four men, with handkerchiefs tied around their faces leaving only their eyes uncovered, appeared at the scene where the automobile in which she was sitting was parked and pulled the driver out of the car. Later in her cross-examination she testified that she became afraid when one of the defendants, afterwards identified as Maioli, came to the side of the car; that she then 'thought it was a robbery,' or that it 'was a holdup'; and that she was 'scared twice on top of what I was scared before.' Defendants objected to the above-quoted portions of her testimony on the ground that it was opinion evidence and therefore inadmissible. There was no error in allowing such testimony. In the circumstances already testified to by her it was not so much a conclusion as it was testimony of her state of mind in the sudden presence of these masked men and was, therefore, admissible. Exception numbered 2 to this testimony is overruled.
In presenting its case in chief the state offered in evidence a necklace, a pair of earrings, and a wrist watch which a police officer had taken from defendant Maioli's home as a result of information which he had given to Captain King at the police station. In the course of her direct examination the complaining witness identified each of those articles as the same which said defendant had forcibly taken from her at the scene of the robbery. She also identified each of them on cross-examination respectively by counsel for defendants Maioli, Bruni, and Marrocco. However, when Marrocco's counsel began his cross-examination he asked: 'Mrs. Fortin, can you describe your jewelry to the jury?' On the state's objection the question was excluded. Obviously the most that it could elicit would be a simple answer 'yes' or 'no.'
After the objection had been sustained he was nevertheless permitted to cross-examine her further at some length as to her ability to identify and her identification of each article, thus further testing her credibility in this respect. In our opinion, assuming that it was error to exclude the above question, it did not prejudice defendants since the ruling did not substantially deprive them of the right of reasonable cross-examination but merely limited its scope, because counsel was permitted in subsequent questions reasonably to test her credibility in that respect. Moreover the articles were specifically identified by the police officer who had taken them from defendant Maioli's home on orders from Captain King and were admitted without objection as exhibits. In the circumstances the trial justice's ruling excluding the question was not reversible error and defendant's exception 3 thereto is overruled.
It does not appear that defendants' other exceptions numbered 1, 5, 6, 40, 41 and 42 to the admission or exclusion of evidence have been briefed nor have they been specifically argued. In such circumstances they are ordinarily deemed to be waived. In any event we have considered such exceptions and in the absence of any reasons in support of them they appear to be...
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