State v. Delahunt

• Decision Date: 24 May 1979
• Docket Number: No. 78-40-C,78-40-C
• Citation: 121 R.I. 565,401 A.2d 1261
• Parties: STATE v. Raymond W. DELAHUNT. A.
• Court: Rhode Island Supreme Court

Page 1261

401 A.2d 1261

121 R.I. 565

STATE v. Raymond W. DELAHUNT.

No. 78-40-C.A.

Supreme Court of Rhode Island.

May 24, 1979.

[121 R.I. 581] Dennis J. Roberts II, Atty. Gen., John S. Foley, Sp. Asst. Atty. Gen., for plaintiff.

Mann & Roney, Robert B. Mann, Providence, for defendant.

OPINION

DORIS, Justice.

On June 4, 1976, a Superior Court jury convicted Raymond Delahunt on a single indictment charging him with assault with intent to rob. After his motion for a new trial was denied, judgment was entered on the verdict and he was sentenced to serve 10 years at the Adult Correctional Institutions.

In this appeal defendant raises sundry grounds for reversal of his conviction. The thrust of his attack is directed at certain in-court identifications of defendant that allegedly were tainted by prior out-of-court identifications. In addition, he contends that the court below erroneously admitted evidence of a prior criminal act and that he was denied a speedy trial. The pertinent facts are as follows.

At about 4:15 p. m., on the afternoon of February 1, 1975, Mary Sherlock (Sherlock) left the Rhode Island Hospital where she worked and went to her car in the hospital parking lot. As she approached the driver's side of her car, a man came up behind her and said, "I have a gun. Get in the car and give me the keys." The man took her car keys and attempted to start her car, stating that "he wanted the car to get out of the state." But as he soon discovered, Sherlock's car was in a somewhat dilapidated condition and required the skill of a familiar hand to be started. Consequently, he spent five futile minutes attempting to start the car. During this time, she stated that she saw the barrel of a small black handgun protruding from his left hand. With her assailant thus engaged, Sherlock stated that she took the opportunity to glance toward the front door of the hospital. When she saw people exiting toward her, she fled the car. Moments later, her assailant likewise fled.

Sherlock called the police from the hospital lobby, and four to five cruisers arrived within minutes. She described her assailant and the police commenced an area search. Sherlock accompanied them in one of the cruisers. Twenty-five minutes later, she was taken to view a suspect at a location near the hospital. There she identified defendant, Raymond W. Delahunt, as her assailant. Later that evening, she picked defendant out of a police station lineup.

Paul Gurghigian also identified defendant at this lineup. At trial Gurghigian explained his involvement with defendant. He stated that on February 1, 1975, at about 4 p. m. the same afternoon as the incident at the Rhode Island Hospital parking lot involving Sherlock he was sitting at a counter at Grant's Hobby Shop in Providence. At this time, a young man, whom he identified in court as defendant, entered the store and asked to see a starter's pistol. Gurghigian testified that he scrutinized this man because, as a regular customer of the store, he had a habit of keeping a protective eye on the elderly clerk who was then waiting on defendant. The defendant was shown a small black handgun. When the clerk handed the gun to defendant for examination, Gurghigian testified that defendant ran from the store and headed in the general direction of the Rhode Island Hospital.

At trial, the state did not introduce Gurghigian's lineup identification. Instead, the state relied upon Gurghigian's and Sherlock's in-court identifications and upon testimony regarding Sherlock's field identification made shortly after the crime.

Prior Criminal Act

The defendant's first assignment of error challenges the testimony of Gurghigian. The attack is multifaceted. Initially, he argues that the admission of testimony concerning prior criminal conduct by defendant the starter gun theft was error. The defendant correctly states that such evidence generally lacks relevance. He concedes, however, that a well-settled exception to this rule admits such evidence if it tends to establish "guilty knowledge, intent, motive, design, plan, scheme, system, or the like." State v. Colangelo, 55 R.I. 170, 173-74, 179 A. 147, 149 (1935). The defendant argues that the exception elucidated in Colangelo is inapplicable in this case because it only applies to other criminal conduct that has a similar Modus operandi to the crime being tried. Here, he contends, the conduct of the person in the hobby store bears no resemblance to the conduct of the person in the hospital parking lot. For this reason, he concludes, the Colangelo exception is inapposite. We disagree.

The exception outlined in Colangelo is not limited to situations involving similar acts. It also applies to any series of events although factually dissimilar constituting a plan or design to achieve an ultimate criminal objective. Here the trial justice reasonably concluded, after a voir dire on a motion to suppress, that the hobby store theft, committed some 20 minutes before the parking lot incident, was part of a larger plan to steal a car. Moreover, we do not believe that the prejudice inherent in this testimony outweighed its probative value.

Lineup Identification

The defendant next argues that Gurghigian's in-court identification of defendant was tainted by an earlier suggestive lineup. ¹ At the suppression hearing, Gurghigian and two police officers testified to the makeup and conduct of the lineup. In addition, a photograph of the lineup was introduced. This evidence indicated that Gurghigian viewed four white males of approximately the same height. Each had a similar style moustache and each had a similar hair length. Each was casually dressed. Furthermore, defendant was not wearing the blue jacket previously described to the police as a salient feature in the identification of the man in Grant's Hobby Shop. From this lineup Gurghigian selected defendant without hesitation. The defendant was without counsel. The only discrepancy in Gurghigian's testimony concerned the number of persons in the lineup and whether they were standing or sitting. He thought that he had viewed a lineup of five or six seated individuals, rather than four standing individuals, as depicted in the lineup photograph. At the conclusion of the hearing, the trial justice denied the motion to suppress, opining that the lineup exceeded the standards of fairness.

We see no reason to disturb this finding. The defendant places great significance on the fact that Gurghigian thought that he had viewed a more numerous lineup, in apparent conflict with the lineup photograph. We fail, however, to see how this minor discrepancy renders the lineup constitutionally infirm.

Right to Counsel

The defendant also argues that the lineup contravened the right to counsel provisions of the Federal and Rhode Island Constitutions and thus tainted the in-court identification made by Gurghigian. We first examine the federal constitutional argument.

In 1967, the Supreme Court held that a post-indictment lineup was a critical stage of the criminal process for sixth amendment purposes and therefore the right to counsel attached to such proceedings. ² United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Remedially, the Court proffered a prophylactic exclusionary rule for lineup identifications conducted without the presence of counsel. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Subsequent to these pronouncements, however, some question existed whether the right to counsel also extended to preindictment lineups. See, e. g., In re Holley, 107 R.I. 615, 268 A.2d 723 (1970). In 1972 the Supreme Court resolved this uncertainty in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), where it indicated that the right to counsel first arose "after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417.

In the instant case the lineup took place shortly after the commission of the crime, well before the initiation of any formal judicial proceedings. Thus, in light of Kirby, defendant had no right under the Federal Constitution to counsel and his argument to the contrary is clearly without merit.

The second portion of defendant's right-to-counsel argument looks to the Rhode Island Constitution for support. In the wake of the Supreme Court's opinion in Kirby, some state courts have recognized a preindictment right to counsel under their state constitutions. See Blue v. State, 558 P.2d 636 (Alas.1977); People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). Others have chosen to construe Kirby narrowly when determining the point at which adversary judicial proceedings begin under their particular criminal procedure. See Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974). But many more of the state courts that have considered the issue have followed Kirby. See, e. g., State v. Malani, 578 P.2d 236 (Haw.1978); State v. Johnson, 327 So.2d 388 (La.1976); State v. Easthope, 29 Utah 2d 400, 510 P.2d 933 (1973). See also cases collected at 46 U.Mo.K.C.L.Rev. 148, 152 n. 35 (1977).

Our Rhode Island Constitution provides, in language textually similar to its Federal counterpart, that "In all criminal prosecutions, the accused shall * * * have the assistance of counsel in his defense." R.I.Const. art. 1, § 10. We do not believe that the police lineup in the instant case, held three hours after the crime was a phase of criminal prosecution for the purposes of our constitution. As the Kirby opinion stated:

"In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of...