State v. Conway

• Decision Date: 29 July 1983
• Docket Number: No. 81-427-C,81-427-C
• Citation: 463 A.2d 1319
• Parties: STATE v. William CONWAY. A.
• Court: Rhode Island Supreme Court

Page 1319

463 A.2d 1319

STATE v. William CONWAY.

No. 81-427-C.A.

Supreme Court of Rhode Island.

July 29, 1983.

Dennis J. Roberts II, Atty. Gen., Sharon O'Keefe, Sp. Asst. Atty. Gen., Chief, Appellate Div., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Chief Appellate Atty., Providence, for defendant.

OPINION

MURRAY, Justice.

This is the defendant's appeal from a judgment of conviction for second-degree murder entered in the Superior Court. The defendant raises the following issues on appeal: (1) that the trial justice erred when he failed to instruct the jury on voluntary manslaughter, (2) that the trial justice erred in overruling defendant's objections to certain portions of the prosecutor's closing argument, (3) that the trial justice erred in permitting a witness to testify regarding statements made by the victim a month prior to her death, (4) that the trial justice erred in admitting certain tangible evidence, (5) that the indictment against the defendant should have been dismissed because of the unconstitutional composition of the grand- and petit-jury panels, and (6) that the trial justice erred in instructing the jury on the definition of "reasonable doubt." For the reasons that follow, we affirm the conviction below. The facts of the case as disclosed by the record are as follows.

The defendant, William Conway (Billy), and Debra Deignan (Debbie) lived together, with their two-year-old son Christopher, in an apartment at 85 Hamilton Street in Providence. On Friday morning, January 4, 1980, the two were visited by a co-worker of Billy's, Harry Baker, who brought wine and beer. The three drank together for most of the day. Harry testified that while he was present Debbie was wearing only a bathrobe that was open, exposing her naked body. Sometime later, Debbie took the robe off completely and continued to walk around naked. At approximately 3 p.m., Ethel Manchester dropped off her daughter, expecting Debbie to babysit. At this point, Billy was in the bedroom watching television. Harry stated that he put Debbie in the bathroom when Mrs. Manchester came by because he didn't want anyone to see her drunk and naked. Harry left the apartment at approximately 4 p.m. that afternoon.

In statements to police, Billy indicated that just after Harry left, he found Debbie lying naked on the bathroom floor. He stated that he hit her then, causing a black eye and bloody bruises around the nose. He also told police that Debbie was alive on Saturday morning, January 5, and that he last saw her at approximately 1:30 or 2 p.m., before he went to sleep.

At approximately 8:30 p.m. on January 5, Ronald DeCosta, a friend of Billy's, stopped by to visit Billy and Debbie. Billy answered the door sleepily, and told Ron that Harry and Debbie had had sexual relations. Ron, demanding to see Debbie, went into the bedroom to find her. He discovered her bruised and cold body and told Billy that she was dead. He then left to call the rescue squad and the police. Billy, upset and nervous, took his son Christopher to Billy's mother's house down the block.

When Billy returned to his own apartment, the police had already arrived. Two detectives took him to the Providence police station where he was interrogated, then booked and fingerprinted. Photographs were taken of his swollen and lacerated hand. The two detectives testified that Billy told them he had beaten Debbie with a belt and that at one point he muttered, "I didn't mean to kill her."

On February 8, 1980, defendant was charged by indictment with the murder of Debra Deignan. On November 24-26, 1980, and December 1-4, 1980, the trial justice heard pretrial motions, including defendant's motion to dismiss the indictment and motion to suppress. Both motions were denied. After a nine-day trial in January 1981, a Superior Court jury found defendant guilty of second-degree murder. The trial justice denied defendant's motion for a new trial, and he was sentenced to serve thirty-five years, five of which were suspended.

We shall consider the issues raised by defendant on appeal in the order in which they are set forth in his brief. Additional facts will be discussed as necessary with respect to each issue raised.

I

The defendant first contends that the trial justice erred in refusing to instruct the jury on voluntary manslaughter as defendant requested. The trial justice instructed the jury on three different forms of criminal homicide: first- and second- degree murder and manslaughter.

The trial justice defined manslaughter in the following manner:

"Now, the third crime I told you was included in the general charge of murder is manslaughter. Manslaughter is the unlawful killing of a human being without malice, express or implied, or premeditation.

"If you find that the State proved that the defendant did, without premeditation or malice, deliver the fatal blow or blows resulting in death, then the verdict would be one of guilty of manslaughter.

"Again, manslaughter is the unlawful, but unintentional killing of a human being without malice aforethought or premeditation, for which the law places responsibility on the defendant because he is guilty of an unlawful act or omission of a nature which is not so wrong as to make the defendant liable for murder, nor so harmless as to make him not responsible at all.

"It is well-settled in the case of homicide, ladies and gentlemen, that one who wantonly or recklessly does an act that results in the death of a human being is guilty of manslaughter, although he did not contemplate such a result. Nothing more is required than the intentional doing of an act which, by reason of its wanton or reckless character, exposes another person to injury, and causes such an injury."

The defendant asserts that the trial justice was required to instruct the jury with regard to all lesser included offenses that were warranted by the evidence. He maintains that the evidence before the jury in the instant case warranted an instruction on voluntary manslaughter.

We do not disagree that a defendant is entitled to an instruction on a lesser included offense, if the evidence supports it. Beck v. Alabama, 447 U.S. 625, 635-36, 100 S.Ct. 2382, 2388-89, 65 L.Ed.2d 392, 401-02 (1980). A trial justice's instructions should reasonably set forth all of the salient and essential propositions of law that relate to material issues of fact which the evidence tends to support. State v. Manning, R.I., 447 A.2d 393, 394 (1982). In a homicide prosecution, the court must instruct the jury on any lesser included offense which is warranted by the evidence. State v. Goff, 107 R.I. 331, 335-36, 267 A.2d 686, 688 (1970). However, as we reiterated most recently in State v. Botelho, R.I., 459 A.2d 947, 950 (1983), "The jury's attention should not be directed to various propositions of law unless the record contains evidence which supports and requires it." State v. Infantolino, 116 R.I. 303, 307, 355 A.2d 722, 724-25 (1976). A trial justice is not required to construct a strawman or to create a specter or a ghost. Jury instructions must be premised upon the evidence adduced at trial. In the case before us we find that there is simply no evidence to warrant an instruction on voluntary manslaughter.

We consistently have followed the common-law definition of manslaughter in this jurisdiction. State v. Fenik, 45 R.I. 309, 121 A. 218 (1923). Voluntary manslaughter is defined as "an intentional homicide without malice aforethought in the heat of passion as a result of adequate provocation." State v. Lillibridge, R.I., 454 A.2d 237, 240 (1982); State v. Vargas, R.I., 420 A.2d 809, 815 (1980). Thus, to sustain an instruction on voluntary manslaughter, there must be some evidence to indicate that the killing occurred while the defendant was still in the heat of a sudden rage precipitated by a legally adequate cause.

In the instant case there is no evidence of a legally adequate cause. The defendant asserts that his discovery of his "wife" naked on the bathroom floor immediately after a male visitor had left her there would be legally adequate provocation. However, there is no evidence, other than defendant's bare assertions, that anything had occurred between Harry and Debbie in the bathroom that afternoon. Harry denied that he had had sexual relations with Debbie and maintained that he had simply placed her in the bathroom to prevent her from being seen by a visitor in her naked and drunken state. The visitor, Ethel Manchester, reported that she had, in fact, seen Harry and Billy when she came by the apartment, but had not seen Debbie. The defendant also admitted that Debbie had denied having sexual relations with Harry that day. And there was no testimony that defendant had actually discovered Debbie and Harry engaged in sexual relations.

Furthermore, there is no evidence that this killing occurred while defendant was in the heat of passion without time to cool off. The evidence, in fact, compels the opposite conclusion. Expert medical testimony placed the probable time of death at between 10:40 a.m. and 2:40 p.m. on Saturday, January 5. Doctor Arthur Burns, Deputy Chief Medical Examiner, concluded that Debbie died within five to ten minutes of sustaining a trauma to her neck which caused a fracture of the hyoid bone, resulting in asphyxia. Dr. Burns did acknowledge a slight possibility that Debbie could have died as a result of a slow compromise of the airway. He testified that under those circumstances a victim could survive, at most, from twelve to eighteen hours after the trauma had occurred.

Thus, even under this theory, if defendant had inflicted an injury that ultimately caused Debbie's death after he discovered her naked in the bathroom sometime in the late afternoon on Friday, Debbie would have been dead by noon on Saturday. However, Billy's statement to police and the testimony of his mother, Mary, both indicated that Debbie was still alive at...