State v. DiPrete

• Citation: 710 A.2d 1266
• Decision Date: 01 May 1998
• Docket Number: No. 97-167-C,97-167-C
• Parties: STATE v. Edward D. DiPRETE and Dennis L. DiPrete. A..
• Court: United States State Supreme Court of Rhode Island

Page 1266

710 A.2d 1266

STATE v. Edward D. DiPRETE and Dennis L. DiPrete.

No. 97-167-C.A..

Supreme Court of Rhode Island.

May 1, 1998.

Aaron Weisman, Assistant Attorney General, for Plaintiff.

Richard M. Egbert, R. Robert Popeo, Rosemary M. Allen, John K. Markey, Boston, MA, for Defendant.

Before WEISBERGER, C.J., LEDERBERG and BOURCIER, JJ., and MURRAY and SHEA, JJ. (Ret.).

OPINION

WEISBERGER, Chief Justice.

This case comes before us on an appeal by the state from a judgment of the Superior Court dismissing twenty-two counts of an indictment returned by a grand jury on March 24, 1994. ¹ The indictment charged former Governor Edward D. DiPrete and his son Dennis L. DiPrete with multiple acts of bribery and extortion. The indictment also named certain unindicted coconspirators including Rodney M. Brusini, Frank N. Zaino, and Michael W. Piccoli. Also at issue in this proceeding was Mathies J. Santos, whom the trial justice found either to have been immunized or to have been granted letters of nonprosecution or promises of nonprosecution by representatives of the Attorney General. The judgment of dismissal was imposed as a sanction for delayed discovery by the state. We are of the opinion that in the circumstances of this case, the trial justice exceeded his authority in dismissing twenty-two counts of an indictment returned by a duly constituted grand jury. We therefore reinstate the counts and remand the case to the Superior Court for trial. The facts of the case insofar as pertinent to this appeal as found by the trial justice are as follows.

Following the indictment the parties entered into a stipulation on June 6, 1994, pursuant to which counsel for the state agreed to provide defendants with the testimony of prospective trial witnesses who appeared before any grand jury after 1991 if such testimony related to the subject matter of the instant indictment. Further the state agreed to provide defendants with written or recorded verbatim statements, signed or unsigned, made to investigators regardless of whether the person was expected to be a witness, other than those statements that were withheld on the basis of privilege. The state also agreed that if there were no written or recorded verbatim statements, summaries were to be provided, if available. Counsel for the state also agreed to make available to defendants all documents within the possession of the Department of the Attorney General or the State Police that related to the subject matter of the indictment regardless of whether the state intended to introduce such documents as evidence at the trial. This stipulation recognized that the state would exclude mental impressions, conclusions, or opinions of investigators or attorneys and that such impressions, conclusions, or opinions could be redacted from documents that were provided. The stipulation did not preclude the filing of motions seeking further discovery or other pretrial relief by either party.

Pursuant to this stipulation the state produced over time approximately 600 boxes containing thousands of pages of documents that were generally relevant to the issues raised by the indictment. The 600 boxes of materials were provided during the years 1994 and 1995. On or about July 12, 1995, defendants filed fourteen motions for further discovery and for a bill of particulars. The state opposed certain of these motions on the ground that they exceeded defendants' right to discovery under Rule 16 of the Superior Court Rules of Criminal Procedure or the stipulation. Included among these motions was a request for exculpatory evidence pursuant to the doctrine enunciated by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. The trial justice held a hearing on August 24, 1995, and with the tacit consent of the state ordered with respect to all unindicted coconspirators

"a full and complete statement of all promises, rewards, and/or inducements made in order to secure their cooperation in the investigation; a full and complete statement of the State's knowledge of any and all criminal conduct of the unindicted coconspirators, including not only criminal convictions or pending criminal charges but also information on any known criminal conduct, whether or not that conduct had been the subject of a criminal charge; and any other information relating to a coconspirator's credibility as a witness such as prior inconsistent statements, admissions The court further ordered the state to produce similar materials in respect to any prospective witness as well as "any transcripts of grand-jury testimony by the witness[es] that was being withheld; and all notes of interviews with prospective witnesses taken by any agent of the state in the course of the investigation." The court ordered the notes to be produced for an in-camera review so that information relevant to ongoing investigations or otherwise privileged could be redacted. Although some of these requirements might arguably call for the disclosure of mental impressions, opinions, or conclusions on the part of counsel for the state, the orders were not appealed and therefore became the law of the case.

of a poor memory, or evidence of bias on the part of the witness."

On November 10, 1995, defendants pressed a motion for exculpatory evidence presumably pursuant to the Brady doctrine. At that point counsel for the state asserted that the information required to be produced in the August 24, 1995 orders had been provided to the extent available. The state referred to previously produced immunity petitions and letters of nonprosecution. The trial justice later determined that these materials were inadequate to meet the full thrust of the discovery order.

At about that time the trial justice dismissed from the indictment all extortion-related charges. This order was appealed and subsequently reversed. State v. DiPrete, 682 A.2d 1373 (R.I.1996). Consequently a trial that was scheduled for May 13, 1996, in regard to the remaining counts was delayed. This ruling has no relevance to the instant appeal. It was merely referred to by the trial justice in his relation of the travel of the case.

On July 25, 1996, in the course of a conference call among attorneys for the state, attorneys for defendants, and the court, reference was made to certain materials that had not been disclosed by the state because of a claim of privilege. The trial justice then verbally ordered the state to produce all such materials for in-camera review by the court. In response to this order counsel for the state, as an alternative to producing documents for in-camera review, offered to allow defense counsel to review all the materials in the state's possession. This offer was accepted, and on July 29, 1996, representatives of the Attorney General's office produced thirty boxes of materials containing approximately 68,000 pages of documents that had previously been withheld by the state and which contained exculpatory evidence. The trial justice found in his decision that knowledge of the exculpatory evidence contained in the thirty boxes had been earlier denied by the prosecutors. He further found that the state had argued that there was nothing in the thirty boxes that defendants did not already have in some form or another.

Defense counsel examined the contents of the thirty boxes, which included, according to the state, preparatory notes of witnesses who had been interviewed in preparation for the trial scheduled for May 1996, which trial did not take place. Thereafter the state filed a supplemental response to defendants' motion for exculpatory evidence in which it set forth knowledge of criminal conduct (perjury) on the part of Rodney Brusini that had come to light subsequent to his testimony in March 1992 before a grand jury investigating activities of Joseph Mollicone, Jr. (Mollicone), and the Heritage Loan Company.

Defense counsel and their agents extracted eighty-nine exhibits from the thirty boxes of material that had been provided by the state. The trial justice found that the most important exhibits related to three unindicted coconspirators, Rodney M. Brusini (Brusini), Frank N. Zaino (Zaino), and Michael W. Piccoli (Piccoli), who were all granted immunity or a letter of nonprosecution by the Department of the Attorney General, and to Mathies J. Santos (Santos), who was granted a promise of nonprosecution.

On the basis of these findings, defense counsel moved for sanctions, claiming that the information extracted from the materials provided on July 29, 1996, included information previously ordered to be produced on August 24, 1995. Counsel for defendants alleged that the extracted materials showed that the state knew Brusini had committed perjury in March of 1992, that he had filed The defendants also alleged that the state had withheld evidence of knowledge of tax fraud on the part of Zaino, that attorneys for the state assisted Zaino in amending a 1991 state tax return and were aware that Zaino had filed a false affidavit concerning his financial affairs with the Rhode Island Family Court during divorce proceedings, and that he had maintained a secret bank account at Rhode Island Hospital Trust Bank in order to hide money from his wife during the pendency of their divorce. The defendants also claimed that the state was aware of other crimes committed by Zaino.

false documents with the State Ethics Commission, that he had committed tax fraud, that he had overbilled the state for work done, and that he had committed insurance fraud.

In respect to Piccoli the recently provided materials indicated that a representative of the Attorney General's office had sought lenient treatment at a sentencing hearing wherein Piccoli had pleaded guilty to defrauding the city of Cranston of an alleged sum exceeding $l million. The defendants asserted that these materials indicated that the state recommended...