State v. Carillo, 1820-E

• Decision Date: 03 April 1974
• Docket Number: No. 1820-E,1820-E
• Citation: 317 A.2d 449,113 R.I. 32
• Parties: STATE v. John Edward CARILLO. x.
• Court: Rhode Island Supreme Court

Page 449

317 A.2d 449

113 R.I. 32

STATE v. John Edward CARILLO.

No. 1820-Ex.

Supreme Court of Rhode Island.

April 3, 1974.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Edward E. Dillon, Jr., Sp. Asst. Atty. Gen., for plaintiff

William F. Reilly, Public Defender, Eugene F. Toro, Carmine A. Rao, Asst. Public Defenders, for defendant.

OPINION

JOSLIN, Justice.

In July of 1969 the defendant went to trial before a judge and jury in the Superior Court on an indictment charging him with unlawful possession and control of a firearm after a previous conviction of a crime of violence in violation of P.L.1968, ch. 183, sec. 2, now G.L.1956 (1969 Reenactment) § 11-47-5. ¹ During that trial the defendant moved to suppress the firearm as evidence which had been illegally obtained. ² When that motion was denied he requested and was granted leave to retract his plea of not guilty and to plead guilty. The case was then continued to a day certain for sentencing. On that day the defendant, reversing his stance, moved to withdraw his substituted plea of guilty and to reinstate his earlier plea of not guilty. That motion was denied. Based upon an unusual and peculiar factual context, we sustained the defendant's exception to that ruling; our remand order directed the Superior Court to permit the defendant to reinstate the plea of not guilty and then to conduct such further proceedings as might be appropriate. State v. Carillo, 108 R.I. 8, 271 A.2d 625 (1970). Those further proceedings consisted of a 1971 trial before a judge and jury which resulted in a guilty verdict and imposition of sentence. This second case is now here on the defendant's bill of exceptions.

The record of the second trial discloses the following facts. At about 7:30 p.m. on October 1, 1968, Detective Vincent Vespia, Jr., of the state police, was patrolling in a police cruiser in Providence with two other police officers. He observed defendant operating a motor vehicle without a front registration plate, ³ and signalled him to pull over to the side of the road. It then appeared to the detective that defendant, before coming to a stop '* * * either pick(ed) something up or dropp(ed) something on the floor of the vehicle on the driver's side.'

When both vehicles stopped, the detective alighted from the cruiser, approached defendant's automobile, and asked for his license and registration. The defendant exhibited his driver's license and advised that the vehicle was not registered, whereupon the detective asked defendant to get out of his automobile. As he did, the detective observed protruding from under the driver's seat and in plain view an object which appeared to be the hand grip of a revolver. He promptly seized the object and, after removing it from defendant's vehicle, identified it as a .38-caliber revolver. A further search under the front seat produced a black bag containing live ammunition, expended shells, and a .32-caliber revolver.

Following this description of what occurred at the scene of the arrest, and before the prosecution offered the .38-caliber revolver as an exhibit, the trial justice learned that the judge who presided at the first trial heard evidence in the absence of the jury on its admissibility and refused to suppress it. In the light of that ruling and of our decision in State v. Carufel, 106 R.I. 739, 263 A.2d 686 (1970), the trial justice then inquired whether defendant was objecting upon different grounds from those urged at the earlier trial. ⁴ The defendant assured him that there were none. His only basis for objecting, he said, was a belief that the ruling in the earlier case was erroneous. Thereupon, the trial justice overruled the objection, but without independently evaluating its merit and in sole reliance upon the doctrine of the law of the case, which, as he viewed it, required him to accept the earlier ruling as dispositive in all further proceedings in the Superior Court.

While conceding that such a doctrine may have a place in our procedure as to interlocutory matters, ⁵ defendant observes that his prior motion to suppress was made during rather than before trial, that what this court ordered was in effect a complete trial de novo, and that he was therefore entitled to a fresh and independent determination of all matters, including motions ruled upon during the earlier trial.

Even assuming that defendant is correct in these contentions and that the ruling should not have been based on the doctrine of the law of the case or even on the related principle of collateral estoppel, it does not necessarily follow that the trial justice erred in denying defendant's motion to suppress and in admitting the revolver into evidence. This is so because that ruling, if correct, merits our support irrespective of the reasons relied upon by the trial justice. Bric's Market, Inc. v. State, 105 R.I. 572, 577, 253 A.2d 590, 592 (1969); Lancia v. Grossman's of Rhode Island, Inc., 100 R.I. 407, 411, 216 A.2d 517, 520 (1966); Budwee v. New England Motors, Inc., 99 R.I. 663, 674, 210 A.2d 131, 137-138 (1965); Williams v. Rhode Island Hosp. Trust Co., 88 R.I. 23, 44, 143 A.2d 324, 336 (1958).

The initial question for us, then, is whether the warrantless search of the automobile and seizure of the .38-caliber pistol acquired legitimacy by reason of the pistol's having been in plain or open view when defendant was arrested. This exception to the warrant requirement applies if '* * * the police officer who first discovered the object (1) neither anticipated nor knew in advance where it might be located, and (2) had a right to be where he was and could justify his initial intrusion by a warrant for another object, hot pursuit, search incident to a lawful arrest, or some other legitimate reason for being present unconnected with the search directed against the accused.' State v. Wilson, 110 R.I. 740, 743-744, 297 A.2d 645, 647 (1972).

Here, Detective Vespia's attention was claimed by defendant's operation of a motor vehicle without a front registration plate. That was a violation of the motor vehicle law, for which an arrest was authorized. Therefore, Detective Vespia was clearly within his authority when he ordered defendant to step out of his automobile. As defendant complied, the police officer inadvertently observed the hand grip of the pistol which was in plain view. Nothing in the fourth amendment commanded him to avert his gaze from that plainly visible object. He clearly had a right to be in a position to have that view, and the object was therefore subject to a warrantless seizure. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct 2022, 2038, 29 L.Ed.2d 564, 583 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Brown v. State,15 Md.App. 584, 292 A.2d 762 (1972); State v. Wilson, supra.

The defendant does not even tangentially question the applicability of the plain-view exception, but contends instead that the seizure of the .38-caliber pistol was constitutionally invalid under the line of cases which condemns, absent unusual exigencies, a full search of a person or his automobile following a custody arrest for a minor traffic violation. ⁶ That contention is clearly inapposite, for here we are not concerned with Detective Vespia's right to conduct a full search of defendant's automobile, but with the arresting officer's unquestioned '* * * right to seize items properly subject to seizure because in open view at the time of arrest * * *.' Coolidge v. New Hampshire, supra, 403 U.S. at 509, 91 S.Ct. at 2059, 29 L.Ed.2d at 608 (Black, J., concurring and dissenting).

The legitimacy of the search which produced the black bag containing the .32-caliber revolver presents a different problem. The state does not contend that it was in Detective Vespia's plain view, and agrees that it was uncovered only after a warrantless search had been made of defendant's motor vehicle. It justifies that search, however, on the ground that Detective Vespia had probable cause to believe the vehicle contained contraband or another weapon, or, alternatively, that what was done fell within the permissible scope of a search incident to defendant's valid arrest for the unlawful possession of the .38-caliber revolver. ⁷

While the state's approach appears sound, we do not pass upon it, inasmuch as defendant's possession and control of the 32-caliber revolver added nothing to the state's case. Its obligation was to prove possession and control of a firearm-not firearms-and it met that obligation when it produced evidence that defendant had control and possession of a .38-caliber revolver. That evidence was uncontradicted and unimpeached, and nothing in the record in any way reflects adversely upon its weight or credibility. It provides overwhelming and untainted support for defendant's conviction, and satisfies us beyond a reasonable doubt that the subsequent admission of the .32-caliber revolver in no way contributed to the verdict. Thus, that admission, even if error, was harmless. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711 (1967); see also State v. Duffy, R.I., 308 A.2d 796, 800 (1973); State v. Geter, 108 R.I. 437, 276 A.2d 274 (1971); State v. Danahey, 108 R.I. 291, 274 A.2d 736 (1971).

The defendant also assigns as error the trial justice's refusal to grant his motion to recess the trial. That motion was made after the state had rested, and its purpose was to gain an opportunity to produce as a witness an inmate of a prison in Norfolk, Massachusetts. The witness was Charles R. Pugliese, whose exculpatory statement defendant produced at his first trial when he asked leave to withdraw his guilty plea and substitute one of not guilty. Although defendant made no offer of proof, he apparently anticipated that Pugliese, if he testified, would repeat what he had said in...