State v. Damiano, 89-453-C

• Citation: 587 A.2d 396
• Decision Date: 18 February 1991
• Docket Number: No. 89-453-C,89-453-C
• Parties: STATE v. Dennis J. DAMIANO. A.
• Court: Rhode Island Supreme Court

Page 396

587 A.2d 396

STATE v. Dennis J. DAMIANO.

No. 89-453-C.A.

Supreme Court of Rhode Island.

Feb. 18, 1991.

James E. O'Neil, Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., John J. Hogan, Sp. Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine Gibran and Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a judgment of conviction of four counts of robbery entered in the Superior Court. We vacate the conviction and remand the case for a new trial. The facts of the case insofar as pertinent to this appeal are as follows.

On February 7, 1984, a robbery took place at a branch office of the Fleet National Bank located on Broad Street in the city of Providence. The account of eyewitnesses indicated that the robbery was perpetrated by two men just after the opening of the bank at 9 a.m. One man was black and was described as being approximately five feet eight inches in height, having a thin to medium build. He had some facial hair and wore a cap, a long coat, and sunglasses. This man was armed with a handgun and jumped over the tellers' counter and ordered the tellers to fill a bag with money. The other man was white and was described as being approximately five feet six inches in height with a stocky to heavy or rugged build. The second man wore a knit cap, a long jacket and a bandanna across the lower part of his face. The second man was armed with a shotgun and stood guard at the main entrance to the bank. Witnesses gave varying descriptions, characterizing this person as having facial hair while a number of accounts were given concerning the color of both the hair on his head and the facial hair. In the course of the robbery, Kenny Phillips, the bank's maintenance man, unexpectedly entered the bank through a back door. This alarmed the robbers, one of whom shouted, "Watch your back," to his confederate. At this point Phillips retreated and slammed the back door shut. The first robber vaulted over the counter and ran out the front door along with the second robber, who had been standing guard. The two fled from the parking lot in a metallic blue BMW automobile driven by a third black man. The trio sped toward Roger Williams Park, but as it reached the easterly side of the park, the BMW hit a tree, backed up, hit another tree, and then stalled. The three men left the stalled automobile and ran toward the park, scattering in different directions.

A witness to the crash signaled to his neighbor to call the police. Apparently a number of police detectives who were responding to the report of the bank robbery heard a radio broadcast concerning the auto crash on Carr Street near Roger Williams Park. They then heard that a police officer was being held at gunpoint on Babcock Street. Thereupon the detectives went to Babcock Street where they saw a black male, later identified as John Hicks, holding Patrolman Castillo as a hostage. He was holding a pistol to the police officer's head and using the policeman's body as a shield. He threatened to shoot the police officer if anyone sought to fire upon him. After a period of attempted negotiations, Hicks maneuvered his hostage into an unmarked police car that was parked nearby with the engine running. As Hicks was in the act of closing the passenger door of the automobile, several officers fired upon him, striking his body with a number of bullets. Hicks was dead when the ambulance arrived, and Officer Castillo was wounded by a bullet accidently fired into his hand.

The defendant in this case was not a suspect in respect to this crime until June 1984, when Detective William Carroll of the Providence police department received a call from Patrolman Thomas Keleher and Lieutenant Lincoln of the Canton, Massachusetts, police department.

On June 25, 1984, defendant was arrested in Canton for a crime unconnected with the Providence robbery and was in the company of his fourteen-year-old nephew, Ronnie Champagne. Ronnie was also arrested and placed in an adjacent cell. Initially Ronnie gave a false name and address. However, defendant informed the police of Ronnie's true name and address and also of the fact that he was a juvenile. Officer Keleher overheard defendant telling his nephew, "Just be quiet about what I told you the other day." As a result of this comment, Keleher and another officer interrogated Ronnie in another room and tried to find out what his uncle's comment could be interpreted to mean. This interrogation was the subject of disputed testimony. Ronnie claimed that the officer screamed at him and either punched or poked him in the chest. Eventually Ronnie informed Patrolman Keleher that in March 1984 defendant had a telephone conversation, one end of which Ronnie overheard. The person on the other end was referred to as "Birdie." When Ronnie asked defendant a few days later about the conversation, defendant replied that he had been involved in a bank robbery in Providence. He showed the boy a page from the Boston Herald that contained a photograph and an article about the robbery. The defendant pointed to the photograph and said, "That's me." The defendant further told Ronnie that he, along with two other men, had been involved in the bank robbery and that one of the men took a policeman as a hostage while defendant and the third man ran into the woods. The defendant further told Ronnie that he had spent a week in the woods and dropped his gun there. Ronnie testified that he was impressed by the story but was not sure that he believed his uncle, who might well have been joking. As a result of this statement, Officer Keleher communicated with Detective Carroll of the Providence police department.

Providence police officers took a further statement from Ronnie and eventually presented him as a witness at trial. The only evidence in addition to Ronnie's testimony that implicated defendant consisted of the matching of two latent fingerprints on the interior driver's window of the BMW getaway car to known prints of defendant.

In support of his appeal, defendant raises five issues that will be considered in the order in which they appear in defendant's brief. Additional facts will be supplied as necessary in order to form a basis for determining these issues.

I THE INTRODUCTION INTO EVIDENCE OF THE BOSTON HERALD ARTICLE

The defendant argues vigorously that the Boston Herald newspaper article describing the robbery and the taking of Officer Castillo as hostage should not have been admitted into evidence since it constituted the quintessence of hearsay. With this contention we are in agreement. Rule 801(c) of the Rhode Island Rules of Evidence defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

It is obvious that a newspaper article, if admitted into evidence as a full exhibit, fits the definition of hearsay. Indeed, it is difficult to imagine a more dramatic example of hearsay than a newspaper article written by a reporter from accounts given him by other persons and by his own observations when that reporter is not present in court and therefore not available for cross-examination. A veritable legion of cases have held that a newspaper article constitutes hearsay and is inadmissible to prove the facts asserted therein. See generally Annot., 55 A.L.R. 3d 663 (1974).

The state does not dispute the proposition that ordinarily a newspaper article would constitute hearsay. However, the state argues that this Boston Herald article is an exception to the rule of inadmissibility by reason of the fact that it was adopted as a statement by defendant and therefore qualifies as nonhearsay pursuant to Rule 801(d)(2)(B), which generally defines as nonhearsay "a statement of which [defendant] has manifested [his] adoption or belief in its truth." This rule has long been recognized and is generally described in 4 Wigmore, Evidence § 1073 (Chadbourn rev. ed.1972). The gist of an admission by adoption requires that the accused party, by conduct or express statement, creates the inference that he accepts the truth of the matter asserted in a written statement prepared by a third person.

In the case at bar the only reference that the accused made to the newspaper article, according to the testimony of Ronnie Champagne, was that defendant pointed to a picture in the article and stated, "That's me." In these circumstances defendant clearly adopted the photograph that depicted him as one of the persons involved in the robbery. It might also be inferred that he adopted the headline that stated that the article related to a bank robbery. However, there is absolutely nothing in the evidence introduced by the state that could justify an inference that defendant adopted the entire narrative of the article, including the hostage-taking and subsequent events leading to the death of John Hicks. This inflammatory and prejudicial material was not adopted by defendant either specifically or by implication.

Consequently the trial justice was in error when he admitted this newspaper article in its entirety as a full exhibit for the truth of the matter asserted.

II THE REQUESTED INSTRUCTION ON VOLUNTARINESS

The defendant requested the trial justice to instruct the jury concerning the testimony of Ronnie Champagne as follows:

"If it appears from the evidence in the case that a statement would not have been made, but for some threat of harm or some offer or promise of immunity from prosecution, or leniency in punishment, or other reward, such a statement should not be considered as having been voluntarily made, because of the danger that a person accused might be persuaded by the pressure of hope or fear to confess as facts things which are not true, in an effort to avoid threatened harm or punishment, or to secure a promised reward.

"If the evidence in the case...