State v. Chakouian, 86-522-C

• Court: Rhode Island Supreme Court
• Writing for the Court: SHEA
• Citation: State v. Chakouian, 537 A.2d 409 (R.I. 1988)
• Decision Date: 11 February 1988
• Docket Number: No. 86-522-C,86-522-C
• Parties: STATE v. John CHAKOUIAN. A.

Page 409

537 A.2d 409

STATE v. John CHAKOUIAN.

No. 86-522-C.A.

Supreme Court of Rhode Island.

Feb. 11, 1988.

James E O'Neil, Atty. Gen., Thomas Dickinson, Asst. Atty. Gen., for plaintiff.

John F. Cicilline, Providence, for defendant.

OPINION

SHEA, Justice.

On June 27, 1986, John Chakouian was convicted of first-degree murder in violation of G.L. 1956 (1981 Reenactment) § 11-23-1. He was sentenced to a mandatory life term at the Adult Correctional Institutions as required by § 11-23-2. We affirm.

In the early-morning hours of March 15, 1975, a Rehoboth, Massachusetts police officer was patrolling the southern portion of Rehoboth from Route 44 to Route 6. At approximately 1:30 a.m., he drove past an area known as the Old Brook Street gravel pit and observed nothing unusual. At approximately 6 a.m., he drove past the same area and this time observed tire tracks in the snow of a dirt lane leading to the gravel pit. The officer followed the tire tracks and eventual footprints to a small area that appeared to have been recently disturbed. The ground there was soft and several branches had been placed over it. He also noticed dark red marks, apparently blood stains, in the snow nearby. He radioed for assistance. The area was dug up, and the blood-soaked corpse of Richard "Dickie" Callei (Callei) was discovered.

An autopsy revealed that Callei had been shot five times in the back at close range. He had also suffered multiple stab wounds in several areas on the front of his body as well as slashing cuts across his face. Finally, he had multiple blunt instrument injuries, the most severe of which were visible on the face and head.

Despite the early discovery of Callei's body, the police were unable to solve the murder until eight years later when they received the cooperation of several key participants-turned-state's-witnesses, the most important of whom was Frank Martellucci. (Hereafter the principle parties will be referred to by their last names.) Martellucci began talking with police in October of 1983 while serving time on a separate offense. His testimony revealed the following sequence of events.

Martellucci and defendant were members of a so-called crew of wise guys headed by Frank L. "Bobo" Marrapese. The crew used to frequent the Acorn Club, which was operated by Marrapese and located on Acorn Street in the Federal Hill section of Providence.

On March 14, 1975, Martellucci and defendant met with Marrapese at the Acorn Club. Marrapese told them that he needed a deep grave dug outside the Rhode Island area. He said that somebody would be going into the grave very soon. Martellucci and defendant drove to the previously described area in Rehoboth, Massachusetts, and dug the grave.

That evening Martellucci and defendant returned to the Acorn Club. They noticed that Marrapese and several other members of his crew were in the establishment. They sat at a table at the far end of the bar. Soon thereafter they were joined by two girlfriends.

Later that evening Callei entered the club. Callei was recognized as a powerful leader of a separate crew operating out of the Federal Hill section of Providence. Martellucci and defendant were surprised to see Callei because he had never been to the Acorn Club late in the evening, and it was known that there were "bad feelings" between Marrapese and Callei. Callei sat at a bar with certain members of Marrapese's crew.

A short while after Callei's arrival, Marrapese went over to Martellucci and defendant and asked them in a whisper if either had a gun. The defendant responded that he had a gun as well as gloves in his car. Marrapese instructed them to send their girlfriends home and to get the gun and gloves.

Martellucci and defendant followed the instructions. When they returned to the club, defendant handed his gun and gloves to Marrapese. Marrapese then walked behind the bar and engaged Callei in conversation. While the two crew leaders were laughing and joking, Marrapese came from behind the bar to Callei's rear, put his left hand on Callei's shoulder, and fired five shots into Callei's back. Callei fell to the floor, and Marrapese and another member of the Marrapese crew kicked Callei several times in the head. After Callei's body was placed in the trunk of Callei's car, Marrapese stabbed the corpse several times in the chest with a knife. The defendant then drove Callei's car to Rehoboth and met Martellucci at the site. They deposited Callei's body in the hole they had prepared.

The central issue of the case, in our opinion, is the admission into evidence of two plea agreements between the state and two of the participants-turned-state-witnesses, one of which included the chief prosecution witness, Martellucci. The defendant argues that this constituted improper vouching by the government for their witnesses' credibility. Objection was raised to the following provisions within the two government witnesses' plea agreements:

"1. The defendant agrees to testify truthfully on any matters about which he has or will be interrogated, or at any trial, before any Grand Jury, or at any judicial proceeding at which he is questioned by the prosecution, the defense, or the Court.

" * * *

"6. If at any time the defendant gives false information to the State or testifies falsely at any trial or judicial proceeding or before any Grand Jury whether questioned by the prosecution, defense, or the Court, this entire agreement will be automatically rendered null and void and will be of no force and effect.

"7. If at any time the defendant gives false testimony before any Grand Jury or at any trial or judicial proceeding, he will be charged with and prosecuted for perjury and/or making false statements."

The defendant also objected to the signatures of the assistant attorney general and the superintendent of the Rhode Island State Police along with the names of their titles of office at the bottom of the plea agreements.

"It is improper for the prosecution to vouch for the credibility of a government witness." United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980). "Attempts to bolster a witness by vouching for his credibility are normally improper and error." United States v. Ellis, 547 F.2d 863, 869 (5th Cir. 1977).

Vouching occurs when the government says or insinuates that it has "special knowledge" that its witness is testifying truthfully. People v. Buschard, 109 Mich. App. 306, 316, 311 N.W.2d 759, 764 (1981); see also Lawn v. United States, 355 U.S. 339, 359-60 n. 15, 78 S. Ct. 311, 323 n. 15, 2 L. Ed. 2d 321, 335-36 n. 15 (1958). Vouching also occurs if the prosecution "place[s] the prestige of the government behind the witness * * * ." Roberts, 618 F.2d at 533; see also United States v. Martin, 815 F.2d 818, 823 (1st Cir. 1987).

One means through which improper vouching may occur is by admission of plea agreements phrased in a manner that suggests that the government has special knowledge that its witness is speaking the truth. Because of this potential danger, courts should closely scrutinize the language of plea agreements before allowing them into evidence.

The mere statement in a plea agreement that a witness promises to speak "truthfully" does not by itself constitute improper vouching. Buschard, 109 Mich. App. at 316, 311 N.W.2d at 764. This "is the same promise he or she makes when called as a witness at trial." United States v. Leslie, 759 F.2d 366, 378 (5th Cir. 1985). Similarly, a statement in a plea agreement that perjury charges will be brought if the defendant makes any false statement under oath is law already known by most jurors even without instruction by the court.

Thus, in order to find reversible error for admittance of a plea agreement on grounds of improper vouching there must be additional improper insinuations by the government. As aptly stated by the Court of Appeals of Michigan:

"Based upon the state and federal decisions cited above, we cannot hold that any reference to a plea agreement containing a promise of truthfulness is in itself grounds for reversal. A more accurate statement of the law appears to be that, although such agreements should be admitted with great caution, admissibility of such an agreement is not necessarily error unless it is used by the prosecution to suggest that the government had some special knowledge, not known to the jury, that the witness was testifying truthfully." Buschard, 109 Mich. App. at 316, 311 N.W.2d at 763-64.

An example of a case in which the prosecution made improper insinuations of "special knowledge" to the jury, discussed in Buschard, is United States v. Roberts, supra. In Roberts, after admitting a plea agreement in which the chief government witness promised to speak "truthfully," the prosecutor told the jury during final argument that if the witness testified falsely, his "charges of first-degree murder would be reinstated, and he would stand a very good likelihood of going to the gas chamber." Roberts, 618 F.2d at 533. He also pointed to a police officer in the audience who never testified and told the jury that the officer's "mission" was to listen to the chief witness's testimony. Id. The Ninth Circuit correctly reversed the conviction for improper vouching and prosecutorial misconduct.

Along with the promise to speak truthfully and the statements explaining the repercussions for giving false testimony, the plea agreements before us include the signatures of the assistant attorney general and the superintendent of the Rhode Island State Police along with the names of their titles of office. These two individuals are particularly well known and well respected in Rhode Island. Neither of them testified or were subject to cross-examination. The defendant argues that through these signatures the prosecution improperly placed the prestige of the government behind the witness. We do not, however, have to presently determine whether these signatures should have been edited...