State v. Collazo, 80-557-C

• Decision Date: 03 June 1982
• Docket Number: No. 80-557-C,80-557-C
• Citation: 446 A.2d 1006
• Parties: STATE v. Angel Luis COLLAZO. A.
• Court: Rhode Island Supreme Court

Page 1006

446 A.2d 1006

STATE v. Angel Luis COLLAZO.

No. 80-557-C.A.

Supreme Court of Rhode Island.

June 3, 1982.

Dennis J. Roberts II, Atty. Gen., Joel D. Landry, Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Asst. Public Defender, for defendant.

OPINION

BEVILACQUA, Chief Justice.

The defendant, Angel Luis Collazo, was indicted by a grand jury on October 26, 1979. The indictment charged him with the murder of Juan D. Perez on or about September 15, 1979. The case was tried before a justice of the Superior Court sitting with a jury which returned a verdict of guilty of second-degree murder against the defendant. The defendant's appeal from the judgment is now before us.

The following evidence was adduced at trial. On September 15, 1979, the Pawtucket police received a telephone call at 8:24 p. m. indicating that shots had been fired at the Crook Manor Housing Project in the city of Pawtucket. Responding to the call, the police went to Crook Manor where they found a body, later identified as Juan D. Perez (the victim), lying on the sidewalk under a tree located between building No. 60 and No. 100. A trail of blood led from the body to the middle of the street and playing cards were strewn about the area. The police did not find any weapon in the vicinity. It was later established that the victim died of three gunshot wounds fired at extremely close range, one striking him in the jaw and the other two in the chest. Medical testimony further established that the victim was drunk at the time of his death.

Both the victim and defendant resided at Crook Manor. On September 15, 1979, at approximately 4:30 p. m., the victim was playing cards on the street outside the Manor with his friends, Roberto Santiago and William Cruz, who also lived at the Manor. Cruz testified that after playing cards for approximately forty-five minutes, the three men went drinking until about 6:00 p. m. and then had dinner at the victim's house. Cruz then left and went home, where he watched television until about 8:30 p. m. when he heard three shots. Upon hearing the shots, Cruz went outside and found the victim lying on the ground. Cruz then called an ambulance. Cruz further testified that there was an ongoing dispute between the victim and defendant arising out of allegations made by the victim that defendant had stolen money from him during a card game. However, Cruz did not witness any argument between the two on the day in question. Nevertheless, he did testify that both the victim and defendant had been drinking that day.

Roberto Santiago testified that he went home after dinner on the day in question and did not come outside until he heard three shots and saw the victim lying on the ground. Santiago further stated that he had seen the victim drinking a beer during the card game and that during such time he saw defendant drinking and watching the game from across the street. Santiago also testified that he did not know of any animosity between the victim and defendant, that the victim was in good humor on the day of the killing, and that as far as he knew defendant did not have a weapon.

The defendant's sister, Rosalina Collazo, also testified. She stated that on September 15, 1979, defendant came to her house very drunk and babbling about having shot the victim. The defendant told his sister that the victim kept punching him and asking him to fight. The defendant also said to his sister that when the victim approached him with a "cuchilla" (a razorblade or knife), defendant fired at the victim to protect himself. The defendant gave Rosalina the gun he used in the killing and she drove him to a pizza parlor. Rosalina then went home, called the police, and gave them the pistol. She drove with the police to Providence where they ultimately located and arrested defendant.

The two Pawtucket police officers who had arrested defendant gave the following testimony. When defendant was placed in the cruiser, he was very emotional and said, "Man, I had to kill him. I had to kill him. He had a knife. It was him or me." At the police station, defendant gave a full oral statement to the same effect. Specifically, defendant stated that early in the day in question he bought the gun used to kill the victim from a person on Weeden Street in Pawtucket. At about 8:30 p. m., defendant was standing in front of his Crook Manor apartment with the gun in his belt. According to defendant, the victim came over to him and an argument started between them. The victim, who appeared to have a knife, swung at defendant a few times. The defendant then took out the gun and fired three times at the victim.

In challenging the judgment, defendant presents three questions: (1) whether the remarks made by the prosecutor in her opening statement constituted prejudicial error so as to violate defendant's due process rights and to deny defendant a fair trial; (2) whether the evidence is sufficient to support a verdict of guilty beyond a reasonable doubt; and (3) whether the trial justice erred in refusing to include instructions on self-defense and intoxication in the supplemental instructions to the jury.

I

The defendant argues that the trial justice erred in denying defendant's motion to pass the case and to declare a mistrial after the prosecutor made the following reference in her opening statement to a separate criminal act.

"The State will also prove, members of the jury, that the murder weapon was the off-duty service revolver of a Providence policeman who lived in Pawtucket. On the day of the murder this officer was leaving his home, his apartment on Mineral Spring Avenue in the City of Pawtucket, and saw the defendant outside of his own house, and that was the house of the police officer as he was leaving for work. The defendant took note of the fact that the person who came out of the apartment was a police officer. When the policeman, Kenneth Pina, returned to his apartment after he came off duty he found that his apartment had been ransacked, and that his .38 caliber snub nose revolver which was his off-duty weapon had been stolen, along with other items. That gun later turned out to be the weapon that was used to murder Juan Perez."

The defendant asserts that the remarks and comments made by the prosecutor about a separate criminal act were so prejudicial that even a strong cautionary instruction delivered immediately thereafter would not have attenuated the impact of her words on the jurors' minds. The trial justice refused to pass the case and advised defendant that he would give a cautionary instruction when and if he decided the evidence was admissible. However, no cautionary instructions were delivered because of the trial justice's ruling that the evidence referred to in the opening remarks was inadmissible because of the insufficiency of proof in support thereof. ¹

It is well established that a decision on a motion to pass a case and declare a mistrial lies within the sound discretion of the trial justice. State v. Anil, R.I., 417 A.2d 1367 (1980); State v. Hoyle, R.I., 404 A.2d 69 (1979); State v. Marrapese, 116 R.I 1, 351 A.2d 95 (1976); State v. Pailin, 114 R.I. 725, 339 A.2d 253 (1975). The ruling of the trial justice on this matter is accorded great weight and will not be disturbed on appeal unless it was clearly wrong. State v. Pailin, 114 R.I. at 729, 339 A.2d at 255.

When a defendant complains of allegedly prejudicial remarks made by a prosecutor, the trial justice must access the potential prejudicial impact of the challenged comments. If the prejudice is inexpiable, the motion to pass should be granted. If the prejudice can be cured, timely and effective instructions must be given. State v. Marrapese, supra.

Determination of whether a challenged remark is harmful or prejudicial cannot be decided by any fixed rule of law. State v. Peters, 82 R.I. 292, 107 A.2d 428 (1954). Rather, the justice must evaluate its probable effect on the outcome of the case by examining the remark in its factual context. State v. Pugliese, 117 R.I. 21, 362 A.2d 124 (1976). Prejudice clearly inheres if the challenged comments "are totally extraneous to the issues in the case and tend to inflame and arouse the passions of the jury" against the defendant. State v. Mancini, 108 R.I. 261, 273-74, 274 A.2d 742, 748 (1971). See State v. Verdone, 114 R.I. 613, 337 A.2d 804 (1975); State v. Werner, 87 R.I. 314, 140 A.2d 502 (1958).

In the instant case, the allegedly prejudicial comment was made by the prosecutor in her opening statement. In State v. Peters, we held that the opening statement to the jury should cover the nature of the offense, the time it was completed, the alleged facts of the crime without lengthy narration of expected testimony, and the witnesses who will be called to testify. We further held that in making the opening statement, "ordinary prudence requires that great care be exercised in guarding against any reference to improper extraneous matters, especially if they tend to prejudice the minds of jurors." State v. Peters, 82 R.I. at 297, 107 A.2d at 431. Thus, the prosecutor must not allude to any evidence in the opening statement unless there is a good faith and reasonable basis to believe that such evidence will be offered and admissible at trial. See ABA Standards for Criminal Justice No. 3-5.5 at 3-80 (2d ed. 1980).

Although a remark made by a prosecutor in her opening statement is improper, it is not necessarily reversible error. Rather, reversible error occurs if the allegedly improper comment was so flagrantly impermissible that even a precautionary instruction would have been insufficient to dispel the prejudice in the jurors' minds and to assure defendant a fair and impartial trial. State v. Bowden, 113 R.I. 649, 324 A.2d 631 (1974); State v. Kozukonis, 100 R.I. 298, 214 A.2d 893 (1965); State v. Werner, and State v. Peters , both supra.

We first note that there was no evidence...