State v. Costa, 1437-E
| Decision Date | 12 June 1973 |
| Docket Number | No. 1437-E,1437-E |
| Citation | 111 R.I. 602,306 A.2d 36 |
| Parties | STATE v. David Emanuel COSTA. x. |
| Court | Rhode Island Supreme Court |
Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Special Asst. Atty. Gen., for plaintiff.
Anderson & Kane, Charles H. Anderson, Providence, for defendant.
This is an indictment charging the defendant with knowingly and willfully striking a uniformed conservation officer in violation of G.L.1956 (1969 Reenactment) § 11-5-5. 1
The case was tried to a Superior Court justice and a jury which returned a verdict of guilty as charged. It is before this court on defendant's bill of exceptions, which contains four exceptions that were orally argued and briefed. However, in the view we take of the case, we need consider only two exceptions, the first being that taken to the denial of his motion for a directed verdict.
The record establishes that on August 27, 1969, state conservation Officer Jacques observed defendant operating a boat in Bullocks Cove, East Providence, which bore no registration number contrary to now G.L.1956 (1970 Reenactment) § 46-22-3. 2 Officer Jacques, who was on the dock, called defendant to come in for questioning regarding the operation of an unregistered motor boat.
The defendant came in as requested and, on being questioned by Officer Jacques, admitted that the boat was unregistered. When asked for his name, however, defendant replied that he would furnish such information after he put his gear in his packup truck which was parked in the parking lot at the time. It is undisputed that having made this response, defendant pulled away from the dock, ignoring Officer Jacques' command to stop. 3
Officer Jacques went to the parking lot and found a pickup truck from which he took registration data. From this data, he determined the name and address of its registered owner, went to the indicated address, but found no one home.
Prior to this Officer Jacques had radioed for assistance and was eventually joined by two other conservation officers named Kerrigan and Danielson. Together, they set up a surveillance which brought them in contact with defendant's father when the latter picked up defendant's truck at the parking lot.
The defendant's father inquired as to what might be the difficulty, and on being told, agreed to and did escort the officers to defendant's home. There, according to the officers, the father entered defendant's home and shortly thereafter emerged with defendant. Again, according to the officers, defendant became abusive and refused to co-operate in the matter of the unregistered boat. When told that this could mean his arrest, defendant attempted to re-enter his home.
Thereupon, he was told that he was under arrest and Officers Kerrigan and Danielson, at Officer Jacques' direction, started to take defendant into custody, each taking hold of an arm or an elbow. There is evidence that defendant resisted and a scuffle ensued during which, according to the testimony of the officers, defendant willfully struck Officer Danielson in the left rib cage with an elbow. The force of the blow was such as to result in swelling, redness and sensitivity to such an extent as to require medical attention at the hospital.
It is defendant's position that while much of the three officers' account of what transpired is substantially correct, it is not true that he willfully and knowingly struck and caused bodily injury to Officer Danielson while the latter was in the performance of duty. Rather, he contends that the striking was incidental to his attempts to pull his arms free while resisting an unlawful arrest.
It is in connection with this contention that defendant presses an exception taken to the denial of his motion for a directed verdict.
In support of this exception, defendant argues first, that the purported arrest by Officer Danielson was illegal in that said officer attempted to make the arrest without a warrant so to do, and secondly, that there is no evidence whatsoever from which it could be found that defendant had committed a misdemeanor in the presence of Officer Denielson. 4
In lieu of such evidence, defendant points out, the state relies on the misdemeanor committed in the presence of Officer Jacques. See note 3.
The state readily concedes that the arrest of defendant by Officer Danielson was for the misdemeanors committed in the presence of Officer Jacques and of which Officer Danielson had no personal knowledge. However, what defendant overlooks, the state argues, is the provision of G.L.1956 (1969 Reenactment) § 12-7-3(c) which is as follows:
'(c) The officer has reasonable ground to believe that the person to be arrested has committed a misdemeanor and either has fled from the scene of the crime or is a nonresident of this state and cannot be arrested later.'
On the strength of this authority then, the state urges, Officer Danielson was making a valid warrantless arrest, hence, in the performance of his duty when, according to the state's evidence, he was willfully and knowingly struck by defendant.
We are inclined to agree with the state that, assuming that Officer Jacques, in whose presence defendant had committed a misdemeanor, had made known to Officer Danielson the circumstances relative to defendant's refusal to obey a lawful command (see note 3), Officer Danielson would have had reasonable grounds to make the arrest without a warrant in accordance with § 12-7-3(c). See State v. McWeeney, 100 R.I. 394, 216 A.2d 357 (1966). That Officer Jacques did so inform Officer Danielson, the state argues, can be reasonably inferred from the circumstances of the facts in evidence.
Whether such inference is reasonable however, we need not inquire, for the reason that we have no hesitancy in holding that a peace officer is in the performance of his duty when making an arrest without a warrant for a misdemeanor not committed in his presence, if the arrest in question was made in assisting a fellow officer in whose presence the misdemeanor in question was committed. Such is the case here.
Consequently, defendant's exception to the denial of his motion for a directed verdict is without merit and overruled.
The defendant's remaining exception, calling for consideration, is more trouble-some. It was taken to the trial justice's denial of defendant's motion to pass the case, which motion was prompted by Officer Danielson's testimony concerning defendant's identity.
In the course of his direct examination, this witness explained that information regarding ownership of the pickup truck was obtained from the Registry of Motor Vehicles. Counsel for the state then inquired:
To this, Officer Danielson replied,
Asked to identify the agency from which such record information was obtained, Officer Danielson replied,
'A The State Bureau of Criminal Investigation.'
No objection was raised to this answer and counsel for the state then asked:
'Q And who was the truck registered to?'
To this, Officer Danielson, referring to defendant, replied,
'A I believe it was registered to David, David E. Costa.'
Then asked,
'Q You further checked out this with the B.C.I. so-to-speak?'
Officer Danielson answered,
'A Checked his criminal record.'
At this juncture, it should be noted that defendant had not put his credibility in issue. Consequently, in light of Officer Danielson's reference to a criminal record, counsel for defendant informed the court that he desired to make a motion. The jury was removed and in their absence, counsel moved that the case be passed, contending that the witness's improper reference to a criminal record was so prejudicial as to deprive defendant of a fair and impartial trial.
The trial justice acknowledged that the challenged testimony was objectionable and ordered it stricken. He denied the motion to pass, however, pointing out that there had been no objection to the questions which resulted in eliciting reference to a criminal record.
Moreover, with their return to the courtroom, he addressed the jury as follows:
It is on the state of the foregoing that defendant urges this court to set aside his conviction and remit the case to Superior Court for a new trial. He does so by asking that we apply to the facts of the case at bar, the principle followed by this court in State v. Peters, 82 R.I. 292, 107 A.2d 428 (1954).
There, the prosecutor, in his opening remarks, brought to the attention of the jury the fact that Peters and one other had been indicted for the offense for which Peters was to go on trial. He further informed the jury that the...
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...because no instructions were given, he was denied a fair trial. State v. Pailin, 114 R.I. at 728, 339 A.2d at 255; State v. Costa, 111 R.I. 602, 611, 306 A.2d 36, 40 (1973) The defendant next argues that because the toxicologist's report, which alleged that the narcotic substance that defen......
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...instructions which were given were insufficient to assure defendants the fair and impartial trial which was their due. State v. Costa, 111 R.I. 602, 306 A.2d 36 (1973); State v. Kozukonis, 100 R.I. 298, 303, 214 A.2d 893, 897 (1965). No precise formula is available for making that determina......
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State v. Manfredi
...can fairly be said to have achieved that goal and erased consideration of the statement from the jury's mind. State v. Costa, 111 R.I. 602, 609-10, 306 A.2d 36, 40 (1973). Regardless of our inability to know the precise effect of the reference on each juror or on the ultimate verdict of the......
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State v. Nelson
...of the statement from the jury's mind." State v. Manfredi, 118 R.I. 144, 149, 372 A.2d 975, 977 (1977) (citing State v. Costa, 111 R.I. 602, 609-10, 306 A.2d 36, 40 (1973)). As Coleman further illustrates, an individual voir dire of each juror is not necessary for the curative remedy to be ......