State v. Correia
| Decision Date | 04 March 1970 |
| Docket Number | No. 645-E,645-E |
| Citation | 262 A.2d 619,106 R.I. 655 |
| Parties | STATE v. Ernest CORREIA. x. |
| Court | Rhode Island Supreme Court |
This indictment for sodomy was tried to a Superior Court justice and a jury which returned a verdict of guilty. Thereafter, within the time provided by law, the defendant filed a motion for a new trial and, when this was denied, seasonably prosecuted a bill of exceptions which contains seven allegations of error, four of which were orally argued and briefed.
Additionally, although not set forth as error in his bill of exceptions, the defendant seeks to have his conviction set aside and a new trial granted on the ground that the trial justice so abused his discretion as to deprive the defendant of effective representation of counsel in violation of Article VI of the amendments to the Constitution of the United States.
The ultimate facts are readily stated. Late in the fall of 1966, a then fourteen-year-old boy, hereinafter referred to as complainant, accepted Saturday work as a delivery boy with defendant.
Sometime about the middle of January 1967, complainant told one of his teachers that he had been criminally assaulted by defendant on a Saturday sometime after Thanksgiving 1966. The teacher induced complainant to repeat the story to the latter's father, and all three then visited the police station where complainant repeated the story that he had given to both his father and teacher. In essence, complainant stated, and at trial testified, that on the Saturday afternoon in question defendant had driven him to the parking lot of the First National store on Pitman Street in Providence. There, according to complainant, he was forced into the back seat, his trousers pulled down, and defendant inserted his penis in complainant's anus having copulation until an orgasm was achieved.
At the police station, complainant was unable to fix the date of the alleged offense but did recall that it was on a Saturday one or two weeks after a holiday, which holiday complainant was positive was Thanksgiving. With the assistance of a calendar, Providence police detective Melvin Woodruff to whom complainant told his story, succeeded in refreshing complainant's memory so as to establish the exact date as Saturday, December 3, 1966. The assault, again according to complainant, occurred at about five o'clock in the afternoon.
In any event, the grand jury returned an indictment charging that on December 3, 1966, defendant did have carnal copulation and penetration per anum with and upon the body of complainant in violation of G.L.1956, chapter 10 of title 11.
At trial, complainant's testimony was essentially a repetition of the story he had told to his teacher, father and the police. However, in cross-examination he admitted that at some time during the short period that he had worked with defendant, the latter had taken him to view a parade in Providence. It was the thrust of defendant's cross-examination that the holiday which was the focal point of complainant's recollection of time could not, in light of the testimony concerning a parade, have been Thanksgiving. Rather, defendant sought to establish that the holiday was Columbus Day. The significance of this line of cross-examination stems from the date of Saturday, December 3, 1966, as being the day of the criminal assault alleged in the indictment.
The defendant took the stand for the limited purpose of establishing that he was financially unable to meet expenses which would be incurred in connection with calling certain witnesses whom he considered to be essential to his defense. At the conclusion of defendant's testimony in this regard, the trial justice granted his motion that the state furnish sufficient funds to subpoena said witnesses.
Two such witnesses were called for the ostensible purpose of furnishing defendant with an alibi for every Saturday afternoon after Thanksgiving in 1966. Both testified that as to these Saturdays, it was defendant's practice to visit a farm in Chepachet where horses were raised and tranined.
Having thus summarized the pertinent evidence, we turn to a consideration of the exceptions contained in defendant's bill of exceptions and the contentions made in regard thereto.
During cross-examination of police detective Woodruff, counsel for defendant ascertained that, in addition to the initial report made out by the police at the time complainant was interrogated in connection with his complaint, as supplementary report, based on the information given by complainant, was prepared by officer Woodruff for use by the grand jury. Asked where this supplementary report was, detective Woodruff replied 'it is here.' Counsel for defendant thereupon asked if he might be permitted to examine it. The state objected and was sustained by the trial justice. It is to this ruling that defendant took the first exception contained in his bill that is properly preserved.
Contending that the ruling in question constitutes prejudicial error, defendant relies on Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103; People v. Silberstein, 159 Cal.App.2d Supp. 848, 323 P.2d 591; State v. Deslovers, 40 R.I. 89, 100 A. 64. In each of these cases, the papers or documents, which defense counsel was denied permission to inspect had been used by the prosecution's witness to refresh his recollection prior to testifying and, under the circumstances, the denial was held to be reversible error. An examination of the transcript in the case at bar, however, discloses that detective Woodruff was not asked whether, prior to his testifying, he had referred to the supplementary report for the purpose of refreshing his recollection. It is as equally probable that he had not as that he had. Speaking of the right of an accused to examine documents in the possession of the prosecution, this court in State v. Bradshaw, 101 R.I. 233, 221 A.2d 815, made clear that the right of a defendant to examine the papers or documents in the possession of the prosecution turned on the question of whether such documents or papers had been used by a witness to refresh his recollection prior to giving testimony without regard to the time when such papers or documents were so used.
Subsequent to Bradshaw, this court in State v. Page, R.I. 244 A.2d 258, held in substance that, absent a showing that the papers or documents demanded to be produced had been used by the witness to refresh his recollection, it was not error for the trial justice to refuse to order their production for inspection by the defense. In the circumstance of the instant case, therefore, we are constrained to hold that the ruling of the trial justice in denying defendant's request does not constitute reversible error.
After the parties had rested, defendant moved for a directed verdict, and to the trial justice's denial of that motion exception was duly taken. In support of his contention that this ruling was prejudicial defendant focuses our attention on a comment made by the trial justice in denying the motion for a directed verdict. The comment in question was to the effect that defendant's motion could not be granted if there were some evidence tending to establish every element of the offense charged. The defendant does not appear to take issue with the rule thus stated. Rather, he argues, as we understand him, that there was no evidence tending to prove that complainant's anus was actually penetrated by defendant.
This argument completely ignores complainant's own graphic testimony. It is true, as defendant argues, that a doctor who examined complainant some weeks after the alleged criminal assault testified that he could find no evidence of the penetration regarding which complainant testified. This argument, however, would have validity only if, in proving the element of penetration, the state were required to offer evidence corroborating that of complainant. The defendant points to no authority for such a proposition, nor has our independent research been any more availing.
The defendant's third preserved exception is to a portion of the trial justice's instructions to the jury. As heretofore set forth, the indictment charged defendant with having committed the offense in question on December 3, 1966. In his instructions to the jury, the trial justice stated:
'The indictment says that it happened on December 3, 1966. Now is that date so significant that if the proof shows that it may have happened on some other day, that the state's case fails? My answer to you is
The thrust of defendant's objection to this portion of the trial justice's charge is that it unduly stresses the evidence adduced by the state while minimizing, if not totally disregarding as lacking probative force, the testimony given by defendant's alibi witnesses. In advancing this contention, defendant invokes the holding of this court in State v. Nunes, 99 R.I. 1, 205 A.2d 24, that, where the record discloses that the trial justice who conducted the trial at which the accused was convicted was not reasonably free from bias, or stated affirmatively, was clearly prejudiced against defendant throughout the course of trial, the defendant has been denied...
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