State v. Byrnes, 79-412-C

• Citation: 433 A.2d 658
• Decision Date: 31 July 1981
• Docket Number: No. 79-412-C,79-412-C
• Parties: STATE v. Ralph BYRNES et al. A.
• Court: United States State Supreme Court of Rhode Island

Page 658

433 A.2d 658

STATE v. Ralph BYRNES et al.

No. 79-412-C.A.

Supreme Court of Rhode Island.

July 31, 1981.

John A. Murphy, Providence, for plaintiff.

John F. Cicilline, Providence, and William M. Kunstler, New York City, for defendant Ouimette.

John F. Sheehan, Providence, for defendant Byrnes.

Peter DiBiase, Providence, for defendant Flynn.

OPINION

MURRAY, Justice.

On the morning of August 14, 1975, nine masked men entered the Bonded Vault Co. (hereinafter Bonded Vault), a commercial safe-deposit company located in Providence. After allegedly robbing several Bonded Vault employees at gunpoint, the masked men proceeded to break into 146 of the 148 safe-deposit boxes located in the vault. They garnered approximately $4 million in cash and valuables from the robbery of the guards and the entry into the deposit boxes.

One of the alleged participants in the break, Robert J. Dussault (Dussault), who testified at great length for the state, was arrested in early January 1976 in Las Vegas, Nevada. Upon his return to Rhode Island he made statements to Providence police and Rhode Island State Police implicating himself and several others in the robbery of Bonded Vault. Among those inculpated by Dussault were defendants Ralph Byrnes (Byrnes), Charles Flynn (Flynn), and John Ouimette (Ouimette), all of whom were later arrested in Rhode Island. Three other suspects were also arrested and charged with defendants.

Following a trial by a Superior Court jury, defendants Byrnes, Flynn, and Ouimette were convicted of various crimes arising out of their alleged activity on August 14, 1975. The defendants Flynn and Byrnes were convicted on four counts of robbery, ¹, five counts of kidnapping, ² and one count each of entry into a building with intent to rob, ³ possession of burglar tools, ⁴ possession of a pistol while committing a crime of violence, ⁵ and conspiracy. ⁶ The defendant Flynn also was convicted on one of unlawful possession of firearms, ⁷ and one count of assault with a dangerous weapon. ⁸ The defendant John Ouimette was convicted of one count of conspiracy and one count of aiding and abetting. ⁹ The three other suspects who were charged with defendants were found not guilty on all charges against them. The defendants timely perfected their appeal to this court.

The defendants in their appeal raise eight procedural and evidentiary issues. We shall advert to additional facts as they become necessary with respect to the various issues raised in this appeal.

I

On April 12, 1976, jury selection in this case began in the Superior Court. On that date counsel for defendants Byrnes, Flynn, and Tarzian requested the trial justice to exclude four armed, uniformed state troopers from the courtroom. This request was denied and the defendants objected. After a subsequent denial of defendants' oral motion for reconsideration of the trial justice's decision on this issue, counsel petitioned this court for a writ of certiorari. In State v. Byrnes, 116 R.I. 923, 355 A.2d 411 (1976), this court denied the petition. On April 27, 1976, we vacated our earlier denial of certiorari and issued an order requiring the trial justice to reconsider his ruling and to make a personal determination as to the propriety of the presence of the state troopers during the trial. State v. Byrnes, 116 R.I. 925, 357 A.2d 448 (1976).

Subsequent to our remand, two witnesses appeared before the trial justice. One was Robert N. Mellucci, the Chief of the Department of Corrections Committing Squad; the other was Major Lionel J. Benjamin, Executive Officer of the Rhode Island State Police. The committing squad (now known as the Rhode Island State Marshals) is charged with the responsibility of maintaining the custody of prisoners while they are in the various courthouses or while they are being transported to and from the Adult Correctional Institutions.

Chief Mellucci made it quite clear that his squad was unable to satisfy the manpower demands being made upon it in April of 1976, at the time the so-called Bonded Vault case came on for trial. He informed the trial justice that in no way could the squad's eleven members service five different courtrooms. The squad's standard operating procedure called for two squad members for each prisoner being escorted into a courtroom. Six of the available eleven were slated for duty in Justice Francis J. Fazzano's courtroom. Four others were needed in a courtroom in which Justice William M. Mackenzie was presiding. Chief Mellucci testified that he presented his problem to Justice Fazzano, who in April of 1976 was in charge of the criminal calendar, and it was Justice Fazzano who contacted the State Police Department and sought its help in assisting the committing squad to discharge its obligation.

In his testimony, Major Benjamin disclosed that upon receiving the request for help, the State Police agreed to act "strictly as a backup" for the committing squad and that the detail's duty was to make sure that those people who were coming into the Bonded Vault courtroom did not pose a threat to the judge, the attorneys, or the defendants. He also explained that the State Police was unionized and that its collective-bargaining agreement stipulated that details such as the courtroom security were to be assigned to the uniformed, rather than the detective division. The Major also informed the trial justice that, even if there were no contractual obligations, the detective division's manpower supply was such that there was no one available for a courthouse assignment. He testified that departmental regulations require that all uniformed troopers carry their weapons in their exposed holsters at all times, or, as Major Benjamin said, a "trooper never takes his weapon off anywhere."

The trial justice, in denying the motion to exclude the uniformed troopers from the courtroom, alluded to the committing squad's shortage and the State Police policy insofar as its uniformed personnel were concerned. He then addressed the issue of whether the presence of the troopers actually posed a threat to defendants' right to a fair trial.

In making his determination, the trial justice first pointed out that during the jury-selection process over 199 prospective jurors were interrogated. Many of that number had been excused before the presence of the troopers had been brought to their attention. The trial justice noted that of the fifty-four prospective jurors who were asked about the trooper, fifty-one said that the troopers' presence created no inference of guilt. The other three did not answer the inquiry directly, but two reported that they became "nervous" upon seeing a trooper in uniform. When the potential jurors were asked if they had any idea as to why the troopers were in court, the answers ranged from "didn't know" to "security" to "protection." Those who chose "protection" indicated that the protection was for everybody, including the defendants.

After considering the evidence adduced at the exclusion hearing, the trial justice observed, "I am firmly convinced * * * especially with respect to the jurors we have in this box," that the presence of the armed, uniformed troopers "in this courtroom, has no effect whatsoever upon the constitutional rights of these defendants."

The handling of an extraordinary event which may arise during the trial, we have said, is a matter left to the sound discretion of the trial justice, and the manner in which he resolves the episode will not be disturbed by us absent a finding that he has abused his discretion. Webbier v. Thoroughbred Racing Protective Bureau, Inc., 105 R.I. 605, 254 A.2d 285 (1969). Here, the trial justice gave a reasoned and careful consideration of the issues raised by the presence of the uniformed troopers and, after consideration of all relevant factors, found that the presence of the troopers in no way prejudiced defendants. We have reviewed the record, and we find no reason whatsoever to fault his conclusion.

II

The defendants' second claim of error involves Rule 26.2 of the Superior Court Rules of Criminal Procedure. ¹⁰ In essence, this proviso states that before any evidence is offered at trial, the prosecutor may make an opening statement, and if the defense wishes to make an opening statement, it may do so just prior to the prosecution's introduction of testimony or just before beginning the presentation of evidence in support of the defense. Here, immediately after the prosecutor had made his opening statement, the defense made it clear that it wished at that moment to make an opening statement. In the statement, the jury was to be told that in considering the testimony of witnesses just alluded to by the prosecutor, the jury should pay attention to such factors as the witnesses' demeanor, their prior criminal involvement, their explanation about particular aspects of evidence which might be developed on cross-examination, and the reasons for any inconsistencies in their testimony. The trial justice, after hearing this explanation, denied the request for an opening statement, pointing out that such commentary could be offered in final argument. The defendants described the trial justice's action as a denial of a basic right. We think otherwise.

The proper function of an opening statement is to apprise the jury with reasonable succinctness what the issues are in the case that is about to be heard and what evidence the prosecution and the defense expect to produce at trial in support of their respective positions. United States v. Breedlove, 576 F.2d 57 (5th Cir. 1978); Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976); State v. Martinez, Mont., 613 P.2d 974 (1980); ABA Standards of Criminal Justice, The Defense Function, § 4-7.4 (2d ed. 1980).

Recently, in rejecting an argument almost identical to that being pursued by the defense, the Delaware Supreme Court, after noting the purpose of an opening statement, emphasized that such a statement...