State v. Clark, 97-104-C.A.

• Decision Date: 18 May 2000
• Docket Number: No. 97-104-C.A.,97-104-C.A.
• Parties: STATE v. Sidney CLARK.
• Court: Rhode Island Supreme Court

754 A.2d 73

STATE v. Sidney CLARK.

No. 97-104-C.A.

Supreme Court of Rhode Island.

May 18, 2000.

Present WEISBERGER, C.J., and LEDERBERG, FLANDERS, and GOLDBERG, JJ.

Aaron L. Weisman, Providence, for plaintiff.

Barbara Hurst, Paula Rosin, Providence, for defendant.

OPINION

WEISBERGER, Chief Justice.

This case came before the Court on an appeal by Sidney Clark (defendant) from a judgment of conviction entered in the Superior Court on a charge of possession of a stolen motor vehicle pursuant to G.L.1956 § 31-9-2. The defendant also appeals an enhanced sentence he received as an habitual criminal pursuant to G.L.1956 § 12-19-21. The defendant was sentenced on July 11, 1996, to five years of incarceration for possession of a stolen motor vehicle and to twenty-five years enhanced incarceration as an habitual criminal (fifteen years to serve and ten years suspended with a probationary period following his release). We affirm the judgment of conviction and the enhanced sentence. The facts of the case insofar as pertinent to this appeal are as follows.

On August 27, 1994, Patrolman Anibal Baez, Jr., of the Providence Police Department

stopped a black 1995 model Dodge Neon automobile because the windshield was damaged. The driver, Gregory DiPina (DiPina), said that the automobile was owned by his aunt. The patrolman permitted DiPina to drive the automobile based on his promise that he would take it directly to his homeand park it. Approximately five and one-half hours later, the patrolman noticed the same vehicle being driven on Waverly Street in Providence and pulled it over for a further encounter. It further appeared to the patrolman that the temporary license plates on the car may have been altered. Although a check of the vehicle's VIN number did not indicate that it was stolen, the patrolman requested a license, registration, and proof of insurance. DiPina could not produce any of these documents. The patrolman issued a summons to DiPina for driving without a license and driving with an expired registration. The car was towed for safekeeping and DiPina was released. He never sought to reclaim the automobile.

In early September 1994, an automobile dealership in Raynham, Massachusetts, Silver City, Inc. (Silver City), reported that a new 1995 model black Dodge Neon had been stolen from its new car lot between August l and August 15, 1994, probably during business hours. Investigation indicated that defendant had been employed by Silver City as a sales representative from May 2, 1994, until August 19, 1994, when he was laid off for failing to sell a sufficient number of cars. During the period of his employment, defendant had access to the new cars in the lot, which was highly secured from members of the general public.

At the time of his encounter with Patrolman Baez, DiPina had been on probation incident to a fourteen-year suspended sentence for a charge of possession of heroin. This sentence had been imposed in November 1992.

After the Providence police found out that the 1995 black Dodge Neon had been stolen, charges were brought against DiPina for possession of a stolen motor vehicle and for violation of his probation on the fourteen-year suspended sentence. He was held, for want of bail, at the Adult Correctional Institutions (ACI) pending a violation hearing.

During a discussion between DiPina and his attorney, Thomas A. Hanley (Hanley), DiPina asserted that he had purchased the automobile from a person named "Sidney" for $3,000 plus a quantity of cocaine. Hanley did some research that disclosed that Sidney's last name was Clark. Sidney Clark was well known to the Department of the Attorney General because he was convicted of murdering another inmate at the ACI in 1975 and had been sentenced to death. Thereafter, the Rhode Island death penalty was declared constitutionally invalid and defendant was resentenced to life imprisonment, from which he was paroled in 1993 over the objection of the Department of the Attorney General. Hanley communicated with representatives of the Attorney General to determine if Sidney Clark was the same Sidney Clark whom he knew through reputation.

DiPina was then released from the ACI without having undergone a violation hearing. He was invited to appear at state police headquarters in order to give a statement about his alleged purchase of the Dodge Neon from defendant. He gave a statement to the state police outlining the facts incident to the purchase on April 13, 1995. During that same meeting, DiPina was shown a six-photograph array from which he selected a photograph of defendant as the person who had sold him the car.

Following the meeting with the state police, Hanley and Special Assistant Attorney General Ronald Gendron (Gendron) had discussions in the courthouse about the state's willingness to be of assistance to DiPina if he cooperated with the prosecution of defendant on the stolen-motor-vehicle charge. After one of these discussions, Gendron presented to Hanley a four-page memorandum of agreement that offered DiPina a disposition of less than jail on both the charges of possession of the stolen vehicle and violation of probation if he carried out an agreement to testify truthfully in respect to the charges that would be brought against defendant. DiPina never saw this document because hebroke off contact with his attorney after his release from the ACI. Hanley placed the proposed agreement in his file.

On or about September 8, 1995, DiPina again was arrested on an unrelated charge for possession of heroin. He again was held without bail as an alleged violator of his 1992 suspended sentence. He again was represented by Hanley. He went before a justice of the Superior Court and pleaded nolo contendere to the stolen-motor-vehicle charge and the heroin charge. The justice imposed concurrent sentences of five years on both charges, with three years to serve and two years suspended. The fourteen-year suspended sentence was left without revocation.

DiPina was confined from September 8, 1995, until December 18, 1995, at the Intake Center of the ACI. While he was there, he encountered a group of maximum security inmates who were temporarily housed at the Intake Center because of a riot at the maximum security center. Some of these inmates suggested that they knew defendant, who had been incarcerated there since February 1995 on a charge of unlawful possession of a weapon. The defendant was later acquitted of this charge. These inmates suggested that DiPina should exonerate defendant. For a time, DiPina and defendant were both at the ACI. On November 15, 1995, DiPina wrote to an attorney who he believed was representing defendant, and offered to testify that defendant did not sell him the stolen automobile. DiPina was contacted by an attorney from the office of the public defender, who was actually representing defendant. Ronald Manchester (Manchester), an investigator from that office, obtained an affidavit from DiPina, which stated as follows:

"Sometime, in June or July of 1994 I purchased a 1995 Dodge Neon, black from a person who said his name was `Sidney Clark.' I told this to the police, but I have since met the real, Sidney Clark, and he is not the man that had sold me the vehicle in June or July of 1994."

This affidavit was dated November 20, 1995. DiPina had been incarcerated from April 22, 1994, until July 21, 1994, as stipulated by the parties.

On December 18, 1995, DiPina was transferred from the Intake Center to the maximum security facility at the ACI, where he remained until January 25, 1996. While he was in maximum security, DiPina had a brief conversation or two with defendant. According to DiPina's later testimony, defendant suggested that since DiPina had already been sentenced for possession of the stolen vehicle it would be best for him to "take the weight" for this charge and to assert that DiPina had gone to the Silver City automobile dealership himself and taken this automobile out of the new car lot. As a result of this conversation, defendant obtained from DiPina a copy of the affidavit given to Manchester on November 20, 1995.

On January 19, 1996, Manchester went to the ACI to meet again with DiPina. Following that visit, Manchester took a new affidavit from DiPina in the form of seventeen questions and answers, dated February 28, 1996. In this affidavit, DiPina stated that he stole the vehicle in question from the Silver City Dodge premises, where the automobile was kept with the keys in the ignition. He stated that his earlier statement to the state police about purchasing the car from Sidney Clark was false, but that the current statement was the truth. The substance of the information contained in the affidavit had been stated orally to Assistant Public Defender John Hardiman. Consequently, on the eve of trial it appeared that DiPina would serve as a witness for the defense. However, when the trial commenced, he testified for the prosecution. Furthermore, between the time of DiPina's sentence in Superior Court (on the automobile and the heroin charges) and the commencement of defendant's trial, DiPina had filed a motion to reduce his sentence.

In support of his appeal, defendant, through his attorney, the public defender, has raised five issues. These issues will be considered in the order in which they appear in the public defender's brief.

In addition, defendant has filed a brief, pro se, which raises three issues together with a number of sub-issues. The issues raised by defendant pro se will be discussed after those issues raised by the public defender on his behalf. Further facts will be provided as may be required to discuss the issues raised by defendant.

I Did the State Violate the Principles Set Forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by Failing to Disclose a Promise by the State to Release DiPina From Incarceration Following the Conviction of Sidney Clark Through...