State v. Burke
| Decision Date | 18 May 1990 |
| Docket Number | No. 89-55-C,89-55-C |
| Citation | 574 A.2d 1217 |
| Parties | STATE v. William B. BURKE and Richard R. St. Pierre. A. |
| Court | Rhode Island Supreme Court |
On April 13, 1988, a jury convicted William B. Burke (Burke) and Richard R. St. Pierre (St. Pierre) of conspiracy to rob and two counts of robbery. Burke, individually, was also convicted of one count of attempted robbery, and St. Pierre, individually, was convicted of assault and battery on a person over sixty years of age. The defendants appeal these convictions, resting upon several assignments of error. We affirm in part and reverse in part.
A brief discussion of the facts follows, with additional facts elicited as they are relevant to the various legal issues raised in this opinion. On the evening of June 15, 1985, between 10:30 p.m. and 10:45 p.m., a robbery occurred at Chick's Spa, a small variety store located in Manville, a village in the town of Lincoln. During the course of the robbery the owner of the store, Lucien Laurence (Laurence), also known as Chick, was beaten. Only one customer, Brian Dupont (Dupont), was in the store at the time of the incident, and he too was beaten by one of the perpetrators. When Dupont left the store in an effort to secure assistance, he was met outside by a second man, who was wielding a knife. The man instructed Dupont to lie on the ground. Dupont complied, and his back pockets were searched.
While Dupont remained lying on the ground, an automobile driven by Matt Salisbury (Salisbury) and carrying Paul Brassard (Brassard) pulled up outside the store. Brassard got out of the car, approached the entrance, and was met by the man holding a knife. Although he noticed the man on the ground, he continued into the store, thinking the incident merely a prank. Upon entering the store, he realized a robbery was in progress. Brassard witnessed Laurence's being struck with a baseball bat held by the perpetrator inside the store. Brassard, turning around, was himself then struck with the bat and fell.
Outside, Salisbury witnessed Brassard's being struck and then noticed that another man was standing outside the store. Salisbury started to drive away, changed his mind, turned the car around, and saw someone leaving the store. He then gave chase to the fleeing person in and around the Manville area. Salisbury followed for several blocks until the person disappeared between a row of buildings. Salisbury then headed for the apartment of Brassard's girlfriend, Shelly, to tell her to call for help. After driving around the area once again, he returned finally to pick up Shelly. Salisbury's car was responsible for a bit of noise in the Manville area that evening as his tires squealed and brakes screeched.
The Lincoln police first arrived at the scene at approximately 10:50 p.m. and commenced the investigation of the incident. Laurence was taken by a rescue unit to the hospital for treatment of his injuries. He checked himself out later that same evening. Laurence died two months later at the age of seventy-one.
In its case against Burke and St. Pierre, the state presented seventeen witnesses to testify about the events that occurred on the evening of June 15, 1985. Five of these witnesses were present, at some point, at a gathering at the home of Yvonne and Thomas Drawdy located several blocks from Chick's Spa. The testimony of these witnesses was utilized to link Burke and St. Pierre to the descriptions provided by Dupont, Brassard, and Salisbury. The remaining evidence was presented in the form of testimony from various law enforcement officers, neighbors, a clerk at a local liquor store who stated that Burke had charged beer earlier that evening, and Gloria Flaherty (Flaherty), Laurence's daughter. Subsequent to the presentation of this evidence, the jury found both defendants guilty of two counts of robbery and conspiracy to rob. Burke was also found guilty of attempted robbery, and St. Pierre was found guilty of assault and battery of a person over sixty years of age. The trial justice sentenced Burke to five years' imprisonment for the attempted robbery of Dupont, ten years' imprisonment for conspiracy to rob Laurence, and life imprisonment for the robbery of Laurence, all to run consecutively. He received a suspended life sentence for the robbery of Brassard, which is also to run consecutively to the other sentences. The trial justice sentenced St. Pierre to ten years' imprisonment for conspiracy to rob Laurence and life imprisonment for the robbery of Laurence, these sentences to run concurrently. He received a sentence of five years' imprisonment for the assault of Laurence, to run consecutively to the other sentences. Finally for the robbery of Brassard the trial justice imposed a suspended life sentence.
The admission of Flaherty's testimony under Rule 804(c) of the Rhode Island Rules of Evidence is one of the subjects of this appeal. Other issues include whether the state violated Rule 16 of the Superior Court Rules of Criminal Procedure with respect to the testimony of Flaherty and Donna Cournoyer Cole (Cole), an allegedly mentally deficient witness whose disabilities were not made known to defense counsel. Burke, individually, asserts that the state was improperly permitted to impeach its own witness. St. Pierre, individually, assigns error to the admission into evidence of statements made by Burke against St. Pierre because such statements were not made in furtherance of a conspiracy and contends that the trial justice improperly denied him his right to make an opening statement under Rule 26.2 of the Superior Court Rules of Criminal Procedure. For the sake of clarity we shall first address the common issues on appeal and then consider defendants' individual contentions.
The objection to the admissibility of certain testimony given by Laurence's daughter presents us with the novel and important question of the validity of recently enacted Rule 804(c) of the Rhode Island Rules of Evidence as it applies in the criminal context. Rule 804(c) provides for the admissibility into evidence of hearsay statements made by a deceased person. The rule reads:
Flaherty testified to out-of-court statements Laurence made to her after his discharge from the hospital on the evening of the robbery. Defense counsel objected, specifically, to the following testimony:
MR. McKINNON: Objection.
MR. McKINNON: Objection.
The objection to this testimony was premised upon the assertions of counsel that Rule 804(c) does not operate to render such hearsay statements admissible in criminal proceedings. The defendants rely upon two theories to support such an assertion. First, the language of the rule on its face demonstrates that it was intended to apply only to civil actions. Second, the applicability of Rule 804(c) in a criminal proceeding would unduly infringe upon a defendant's constitutional right to confrontation. U.S. Const.Amend. VI; U.S. Const.Amend. XIV; R.I. Const. art. 1, § 10.
Rule 804(c), which became effective October 1, 1987, was enacted to replace General Laws 1956 (1985 Reenactment) § 9-19-11, repealed by P.L.1987, ch. 381, § 5. The rule, which was taken unchanged from § 9-19-11, is reminiscent of a similar statute existing in our sister state of Massachusetts. See Mass. Gen. Laws Ann. ch. 233, § 65 (West 1986). The Supreme Judicial Court of Massachusetts has construed the language of its own statute to preclude application in criminal proceedings. See Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718 (1931). It is this very construction that defendants rely upon in urging us to limit application of our own Rule 804(c).
In Commonwealth v. Gallo, the supreme judicial court held that Massachusetts General Laws, chapter 233, section 65, was not intended to permit otherwise hearsay statements to be entered into evidence in a criminal prosecution. The language of § 65, as it existed at the time, was identical to Rule 804(c). The supreme judicial court in reaching its determination, however, looked to the language of the statute as first enacted. Gallo, 275 Mass. at 335, 175 N.E. at 725. The Massachusetts court found that Id. Thus, the original language of § 65 lent credence to the court's conclusion that " '[a]ction', although a word of broad import, can hardly be interpreted in this connection as intended to include prosecutions for crime." Id. 2
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